LAW AND POLITICS

A CROSS-CULTURAL ENCYCLOPEDIA
ENCYCLOPEDIAS OF THE HUMAN EXPERIENCE

David Levinson, Series Editor

LAW AND POLITICS

A CROSS-CULTURAL ENCYCLOPEDIA

Daniel P. Strouthes

ABC-CLIO
Santa Barbara, California
Denver, Colorado
Oxford, England
Copyright 1995 by Daniel P. Strouthes

All rights reserved. No part of this publication may be reproduced, stored in a

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Library of Congress Cataloging-in-Publication Data

Strouthes, Daniel.
Law and politics: a cross-cultural encyclopedia/Daniel Strouthes.
p. cm. (Encyclopedias of the human experience)
Includes bibliographical references and index.
1. Law and politicsEncyclopedias. I. Title. II. Series.
K487.P65S77 1995 340' .03'dc20 95-46014

ISBN 0-87436-777-8 (alk. paper)

02 01 00 99 98 97 96 95 10 9 8 7 6 5 4 3 2 1 (he)

ABC-CLIO, Inc.
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 CONTENTS

Preface, ix CIVILIZATION, 37
Maps, xiii CLASS, 38
COLLECTIVE LIABILITY, 41
COMMON LAW, 42
ABANDONMENT, 3 COMPARATIVE LAW, 43
ACEPHALOUS SOCIETIES, 3 CONDOMINIUM LAW, 46
ADOPTION, 4 CONFESSION, 47
ADVERSE POSSESSION, 7 CONSTITUTION, 48
AGE SET, 8 CONTRACT, 58
ANARCHY, 10 CORPORATION, 61
ARISTOCRACY, 10 COUP, 63
ASSOCIATIONS, 10 CRIME, 65
AUTHORITY, 14 CUSTOMARY LAW, 70
AUTOCRACY, 16
DEMOCRACY, 75
BAND, 19 DISOWNMENT, 75
BIG MAN, 22
BLACK MARKET, 24 EQUITY, 77
EXPROPRIATION, 77
CANON LAW, 27 EXTORTION, 78
CAPITAL PUNISHMENT, 28
CHARTER MYTH, 30 FACTION, 81
CHIEF, 30 FAMILY LAW, 84
CITIZENSHIP, 33 FEUD, 86
CIVIL LAW, 37 FISSIONING, 88

V
CONTENTS

FRAUD, 90 OATH, 181

FUNCTIONS OF LAW, 90 OLIGARCHY, 183
FUNDAMENTAL LEGAL CONCEPTIONS, 91 ORDEAL, 183
OWNERSHIP, 185
GERONTOCRACY, 93
GUARDIAN, 94 PACIFICATION, 187
PATRIA POTESTAS, 189
HEADMAN, 95 PATRON-CLIENT RELATIONSHIPS, 190
HOMICIDE, 97 PERSONAL PROPERTY, 192
PERSONALITY PRINCIPLE OF LAW, 192
INHERITANCE, 103 PLUTOCRACY, 193
INTERNATIONAL LAW, 108 POLITICAL ANTHROPOLOGY, 193
POLITICAL CORRUPTION, 198
JURISDICTION, 117 POLITICAL ECONOMY, 201
JURISPRUDENCE, 118 POWER, 203
JUSTICE, 125 PROCEDURAL LAW, 203
PURGE, 208
KINGSHIP, 129
REAL PROPERTY, 211
LAW, 133 REASONABLE MAN, 213
LAW ENFORCEMENT, 134 REBELLION, 214
LEADER, 136 RECIDIVISM, 216
LEASE, 138 RESjUDICATA, 219
LEGAL ANTHROPOLOGY, 140 REVENGE, 220
LEGAL DECISION, 147 REVITALIZATION MOVEMENTS, 222
LEGAL FICTION, 148 RIGHTS, CHILDREN'S, 225
LEGAL REALISM, 148 RIGHTS, HUMAN, 227
LEGAL RIGHT, 148 RIVALRY, 232
LEGALISM, 149
LEGITIMACY IN LAW, 154 SANCTION, 235
LEGITIMACY IN POLITICS, 156 SEGMENTARY LINEAGE, 235
LICENSE, 158 SELF-REDRESS, 237
LITIGATION, 159 SERVITUDE, 243
SERVITUS, 244
MARRIAGE, 163 SLAVERY, 245
MARXISM, 165 SORCERY, 249
MILITARY SOCIETIES, 170 STATE, 250
MISPRISION, 172 STATUS AND RANK, 254
MONARCHY, 172 SUBSTANTIVE LAW, 255
MULTIPLICITY OF LEGAL LEVELS, 173
TERRITORIAL PRINCIPLE OF LAW, 257
NATURAL LAW, 179 TERROR, 257

vi
 CONTENTS

THEFT, 257 WAR, 267

THEOCRACY, 259 WORLD SYSTEM, 272
TREATY, 260
TRESPASS, 263 Bibliography, 275
TRIBE AND TRIBALISM, 263 Illustration Credits, 285
TRIBUTE, 265 Index, 287

vii
 sions in cases of dispute, decisions that are regu-
larly applied (applied the same way in similar
situations) and made on the basis of principles
that can be stated. Furthermore, these decisions
PRI;I;ACI: state the rights of one party and the duties of
the other in relation to the principle. These prin-
ciples we know as laws. Every single known lan-
guage has a word that is synonymous with our
English word "law"; only the English word "law"
is different, in that it alone refers not only to the
principles behind legal decisions but also to leg-
islation, the rules made by legislators.
In short, there is very good behavioral and
linguistic evidence that law is universal to all
societies. So, if both politics and law are univer-
sal, why should we bother to learn about the le-
gal and political systems of societies other than
our own? We need to know about legal and po-
litical systems for three main reasons.
Law and politics are two central features of all First, to acquire practical knowledge so that
human cultures. Politics is about the ways in one can participate in the political and legal af-
which power is exercised in a society. Because fairs of one s own society. A good example of
power is exercised by all members of every soci- this is the training one receives in law school,
ety, politics is a cultural universal, that is, it is which is geared toward a knowledge of the law
found in all cultures. Law, because it also deals of one society, so that one can practice law. In
with the use of power, is a component of poli- this type of learning, it is perfectly reasonable to
tics. But law also encompasses those principles restrict one s focus to the legal or political sys-
of behavior that the people in a society think are tem of the society in which one will be active,
so important that they must not be violated. Is although it is always better to have a wider base
law, like politics, a cultural universal, common of knowledge than that provided by a study of
to all societies? Some experts have argued that one legal or political system.
law exists only in technologically advanced so- Second, to learn about the unique features
cieties, particularly those in the West. They as- of an historical event and to draw attention to
sociate the law with black robes, thick tomes, that which is different about that event. Here
wood-paneled court rooms, and juries. When too, it is reasonable to have knowledge of only
they go to Mongolia, to central Africa, or to one political or legal system, the one belonging
Native American communities in northern Que- to the society being studied, although for ana-
bec and do not see these things, they assume lytical purposes it is always better to have a wider
that law does not exist in these places. base of knowledge.
But while some societies lack these West- Third, to understand the concept of law as
ern features of law, every society does have so- a whole from a scientific point of view. With
cial and cultural institutions that we know by this approach we ask about how law and poli-
the term law. All societies have legal authorities tics work, what their component parts are,
(whom we usually call judges) who make deci- what their functions are, etc., so that we can

IX
PREFACE

make generalizations about law and politics seemed to fulfill a main function of the law
across cultures. We want to be able to say, for putting disputes to rest forever. This function
example, that law always does xy or that it al- was assumed to be central to the nature of the
ways changes in way y when a society is exposed law in that it was believed that law existed to
to influence z. put disputes to rest with finality so that the
In order to understand the concepts of law people involved could get on with their lives and
and politics this well, it is necessary to under- with doing the productive work that keeps soci-
stand them as they are in all of their manifesta- eties going. In other words, if there was no res
tions. We cannot understand law without judicata in law, why would law exist?
understanding law in Morocco, in an American This generalization stood as absolute fact for
Indian band in Brazil, in a Thai village, etc. If a long time until the 1980s, when the anthro-
we were to say that we can understand either pologist Rebecca French discovered that for civil
law or politics by studying just one society's ex- law cases (cases of private wrongs), the Tibetan
ample, it would be like claiming that we could legal system does not have res judicata. The rea-
know all about the subject of war by studying sons for this are discussed in the entry on res
the American Revolutionary War. It cannot be judicata. But, for the purposes of scientific en-
done. Not only do other wars occur for com- quiry, it is enough to say that the generalization
pletely different reasons, but they have greatly concerning res judicata is false for at least one
differing tactics, strategies, weapons, and his- society, thereby demonstrating it to be not uni-
torical developments. Imagine if Norman versal to all legal systems. In this manner the
Schwarzkopf, who led allied military forces in science of human behavior advances. Without
the Persian Gulf War, had had only the strate- French s study of Tibetan law, we would be fur-
gic and tactical knowledge that could be gained ther away from a true knowledge of law as it
from studying the American Revolutionary War. actually exists in human societies and about the
It would have been a disaster, because he would function of law generally. And it is for this rea-
not have been able to make generalizations about son that law, politics, and any other field of hu-
or predict the actions of the enemy. man behavior must be studied across all cultures
In the scientific study of law and politics, if we are to arrive at an accurate portrayal.
scholars try to make generalizations and predic- The goal of this volume is far more modest
tions about the fields of law and politics as whole than to achieve a scientific breakthrough. Rather,
entities as well as their component concepts. One it is to provide readers with the definitions and
example of how this process works should show cross-cultural patterns or variations of some of
this approach clearly. For many decades, if not the central concepts of law and politics. In ad-
centuries, it was established as a valid generali- dition, there are some concepts, such as mispri-
zation about law that all legal systems made use sion, that are quite uneven in their distribution
of the principle of res judicata (Latin for "the in the legal systems of the world, and for this
thing that has been decided"), the principle that reason alone they are of interest and are included
all legal disputes are at some point finally de- here. Each entry provides a definition of the
cided, i.e., they cannot be further pursued, by concept and gives some background data that
appeal or by any other means, by any of the par- the reader may use to get a firmer understand-
ties associated with the case. Legal scholars as- ing of the concept. I have tried to incorporate
sumed that res judicata is universal to all societies data from a variety of different societies so that
because it was found in every society whose le- the reader can have a multidimensional view of
gal system had been studied, and because it the manifestations a concept takes in different

X
 PREFACE

legal systems. In every entry, my goal has been First, I would like to thank my parents for their
to provide a precise and accurate definition for emotional and financial support. I thank my
an important concept, as well as some concise graduate school advisor, Leopold Pospisil of the
background detail and discussion, using data Anthropology Department of Yale University,
gathered from a variety of legal and political sys- for his wisdom and for a significant portion of
tems around the globe. In many entries, I have the ideas on law and politics that I have used in
included an illustrative example of a concept this book.
from U.S. law and a contrasting example or ex- I also thank the Micmac people of Eskasoni,
amples taken from another legal system or sys- Nova Scotia, who with great patience and un-
tems so as to make the multicultural approach derstanding helped me to learn about their cul-
more clear. I have also where relevant included ture and society. I thank them as well for their
the text or extracts of text from original legal friendship, which has been of great personal
documents so as to provide readers with a knowl- value to me.
edge of how law is practiced in various societies. Finally, I wish to thank The Jacobs Funds
of the Whatcom Museum Society, the Canadian
Acknowledgments Embassy, and the American Philosophical So-
I would like to thank a number of people for ciety for their financial support of my work with
help that I have received in writing this book. the Micmac in the years 1985 through 1987.

XI
 MAPS

The following maps show approximate locations

of the cultures mentioned in the text.

xin
MAPS

Africa and the Middle East

1. Amba
2. Amhara
3. Ashanti
4. Barotse
5. Bedouin 19. Nyakyusa
6. Bunyoro 20. Nyamwezi
7. Dinka 21. Rundi
8. Dogon 22. Somali
9. Egypt 23. Sudan
10. Gusii 24. Sukuma
11. Hausa 25. Tallensi
12. Igbo 26. Tiv
13. Iraq 27. Tswana
14. !Kung 28. Wolof
15. Kuwait 29. Yako
16. Lugbara 30. Yoruba
17. Mandari 31. Zimbabwe
18. Nuer 32. Zulu

xiv
 MAPS

Central and South America

1. Inca
2. Jivaro
3. Tarascans
4. Yaqui
5. Yanomamo

xv
 MAPS

Europe and Asia

1. Burmese
2. China
3. Germany
4. Greece
5. Hungary
6. India
7. Japan
8. Lolo
9. Russia
10. Sarakatsani
11. Tibetans
12. Tiroleans

xvi
 MAPS

North America

1. Cherokee
2. Cheyenne
3. Choctaw
4. Cochiti
5. Cree
6. Crow
7. Iroquois
8. Micmac
9. Naskapi
10. Navajo
11. Nunamiut
MAPS

Oceania

1. Ifugao
2. Kalinga
3. Kaoka
4. Kapauku
5. Tairora
6. Tikopia
7. Tiwi
8. Tongans
9. Trobriands
10. Vanuatu

xviii
 or with detention, or with a fine of not more
than three hundred yuan.
If the commission of the offence results

A
in death, the offender shall be punished with
imprisonment for a period of not more than
five years; if the commission of the offence
results in grievous bodily harm, the offender
shall be punished with imprisonment for a
period of not more than three years.
Article 304. Whoever being bound by law
or contract to support, mantain, or protect any
helpless person abandons such person or fails
to give to such person the support, mainte-
nance, or protection necessary for preserva-
tion of life, shall be punished in accordance
with the provisions relating to the offence of
intentionally causing bodily harm resulting in
death or in grievous bodily harm.
Article 305. Whoever commits against
any of his lineal ascendants the offence speci-
fied in paragraph 1 of the last preceding Ar-
Abandonment occurs ticle, shall be liable to the punishment prescribed
ABANDONMENT when helpless people are for the offence increased by one-half.
left to fend for them- Whoever commits against any of his col-
selves. In many societies, it is a criminal offense, lateral ascendants the offence specified in para-
because leaders and authorities want the people graph 1 of the last preceding Article, shall be
within the society to take care of each other liable to the punishment prescribed for the
rather than depend upon the government to do offence increased by one-third.
so. In other societies, particularly some hunting If the commission of the offence results
and gathering societies, abandonment is consid- in death or grievous bodily harm to the ascen-
ered a moral rather than a legal matter. While it dant, the offender shall be punished in accor-
dance with the provisions relating to the
is a crime to abandon a child in the United States,
offence of intentionally causing bodily harm
most other kinds of abandonment are not con-
to an ascendant resulting in death or grievous
sidered criminal. In the Republic of China, as bodily harm.
shown below, the law makes it a crime to abandon
anyone, and increases the penalty for abandon-
ing one's ancestors and relatives in the genera-
The Law Codification Commission. (1919) The
tions preceding one s own. This law, then, reflects
Criminal Code of the Republic of China (Sec-
the Confucian tradition s high positive value on
ond Revised Draft).
helping the older people of one's family (The
Law Codification Commission, 1919:102-103).

Chapter XXV
Abandonment Acephalous (or "head-
Article 303. Whoever abandons a help- A C K N I ALOl'S less") societies are those
less person shall be punished with imprison- SOC 1 1 . 1 IKS that have no common
ment for a period of not more than one year, government that rules all

3
ADOPTION

of its members. The term was first used explic- someone other than his or her natural parents.
itly by anthropologists Meyer Fortes and E. E. As such, adoption is a legal fiction; the relation-
Evans-Pritchard to refer to segmentary lineage ship between adoptive parent(s) and adopted
societies. In these societies, lineage segments child is not a natural or biological one, but only
united when the need arose, such as in time of a legal one.
war or feud, but had no formal leaders who com- The reason for adoption in most societies is
manded the united segments. to acquire an heir. People with some accumu-
Another type of society that is sometimes lated wealth and with no natural children of their
called acephalous is a traditional indigenous so- own will adopt a child so as to have someone to
ciety that had in the past its own native political inherit their wealth. This pattern can be seen
and legal structure but then lost it to a conquer- clearly in societies such as the Ifugao of the Phil-
ing colonial power. Such examples are common ippines and the Micmac Indians of eastern
throughout the world. Here the term acephalous Canada. Among the Ifugao, adoption is prac-
society is a misnomer. What happens when the ticed only by the wealthy. Among the Micmac,
conquering colonists destroy a native political adoption traditionally never existed, and exists
and legal structure is that they replace it with today only very rarely. However, foster parent-
their own or with one that is compliant with their age is quite common and functions to provide
interests. Colonists do not always want to de- for the care of children whose natural parents
stroy a native leadership or authority, although are incapable of caring for them. Adoption is
they almost always wish to dominate the people not practiced because there is virtually no wealth
of the society for their own purposes. Thus, to be inherited, and in the past this was even
though a band society that has lost its headman more true than it is today. Further, foster par-
as an effective leader may appear on the surface entage is considered sufficient for the proper
to be acephalous, it is actually the case that the raising of another couple's child, and the idea of
society is being led by the colonists and its legal changing the name and identity of the foster
affairs (or at least the ones that the colonists care child, in order to adopt, seems alien to them.
about) decided by colonial courts. The following legal decision regards an
adoption involving Brahmans, the highest caste
See also SEGMENTARY LINEAGE.
in India, and is settled according to Hindu law
(The Indian Law Reports, Bombay Seriesy 1925:
515-520).
Fortes, Meyer, and E. E. Evans-Pritchard, eds.
(1940) African Political Systems. ADOPTION
APPELLATE CIVIL.

Before Sir Norman Macleod y Kt.y Chief Justice,

and Mr. Justice Crump.

GOVINDPRASAD LALITAPRASAD
Adoption refers to the MISHAR (Original Defendant No. 1), Ap-
ADOPTION dissolution of the legal pellant v. RINDABAI KIX LALITA-
parent-offspring rela- PRASAD (Original Plaintiff), Respondent.
tionship between parents and their natural
offspring and the creation of the legal parent- Hindu lawAdoptionDatta Homan
offspring relationship between that offspring and Brahmins.

4
 ADOPTION

The ceremony of datta homan is essential to correctness of the ruling in the above case
validate an adoption amongst Brahmins un- was questioned in I.L.R. 7 Mad., page
less the adoptive father and son belong to the 548 wherein the Madras High Court
same gtf/ra [lineage]. expressed an opinion that amongst Brah-
First appeal against the decision of J. H. mins the ceremony of datta homan is an
Betigeri, First Class Subordinate Judge of essential element of adoption. All the
Dharwar. High Courts are agreed that where the
Suit for declaration and possession. adoptive father and son belong to the
One Lalitaprasad dies in 1911, leaving a same gotra the datta homan is not neces-
widow, Rindabai. Lalitaprasad was a Karoj sary, vide I.L.R. 11 Mad., page 5, I.L.R.
Brahmin living at Morab, in Dharwar District. 6 All, page 276, I.L.R. 24 Born., page
The defendant No. 1, Govindprasad, was 218,27 Indian Cases, page 39, and I.L.R.
in possession of Lalitaprasad s property and 39 Born., page 441. In the judgment of
claimed to retain it on the ground that he was the case in I.L.R. 24 Born., page 218,
adopted by Rindabai in February 1913. on page 223 is mentioned an unreported
In 1919, the plaintiff, Rindabai, sued for decision of the Bombay High Court de-
a declaration that Govindprasad was not the cided in 1865 in which it was held that
legally adopted son of the plaintiff's husband; the ceremony of datta homan was not es-
that datta homan and adoption ceremony had sential to the legal validity of an adop-
never taken place. tion. It is stated there that the parties in
The Subordinate Judge held that the fact the said case belonged to the three re-
of the adoption of Govindprasad was proved, generate classes. So that case might be
but that the adoption itself was invalid as the one amongst Brahmins or Kshatrias or
datta homan ceremony had not been per- Vaishyas. Unless that case were shown
formed, that ceremony being essential in the to be one concerning Brahmins, it can-
case of Kanoj Brahmins governed by the not help the present defendant No. 1
Mitakashara law, where the adoptive father since it is held by the Madras High Court
and adopted son belonged to different gofras. that datta homan is not necessary for the
His observations were as follows: validity of an adoption among Kshatrias,
vide I.L.R. 6 Mad., page 20. Besides, I
"Defendant No. 1 admits in para. 5 am not bound to follow the above unre-
of Exhibit 69 that his gotra in the genitive ported case in view of section 3 of Act
line was barha and his gotra in the adop- XVII of 1875. In the case in 27 Indian
tive line was upamanyu: So the question Cases, page 39, all the Hindu texts on
to be decided in this case is whether datta the subject have been considered and so
homan ceremony is indispensable or not also the case law till 1914. It is noted
for the validity of an adoption when the there that there is a great diversity of
gofras of the adopter and the adoptee are opinion amongst the text-writers as there
different, i.e., bhmna. On behalf of de- is absence of uniformity in the judicial
fendant No. 1, the case in 4 Mad. H.C.R., decisions of the Indian Courts on this
page 165, is relied upon. It does lay down point. Finally the following observation
that in order to establish a valid adop- is recorded: 'In this diversity of judi-
tion in a Brahmin family, proof of the cial opinion, it must concede that the
performance of the datta homan is not principle that datta homan ceremony is
essential. But from the facts of this case, essential for the validity of an adoption
it cannot be clearly made out, whether among Brahmins, still counts a strong
adopter and the adoptee in it were the body of supporters and that the rational-
same or of different gofras. Further the istic view has not yet finally triumphed

5
ADOPTION

over formalism.'The same judgment fur- Consequently the datta homan was essential
ther observes: 'Whether the rule (that to validate the adoption, and in this case it is
datta homan is necessary among Brah- not disputed that the datta homan had not been
mins) itself will ultimately stand dis- performed. If we were of opinion that the
credited and disappear, it is needless to adoption was valid, it would have been neces-
speculate in this instance (the case then sary to consider the authorities at some length.
before the High Court being one in But we agree with the judgment in the Court
which the adoptive father and the son below that in this particular case the datta
were of the same gotra)' According to homan was necessary.
the observations to be found on page 994 The authorities are considered in the lat-
of West and Buhler's Hindu Law, 4th est Edition of Mayne at pp. 205-208, and at
Edition, datta homan appears essential for the bottom of page 207 the conclusion is as
the validity of an adoption among Brah- follows: "So far as it is possible to reconcile
mins, where the adoptive father and son these conflicting decisions, they seem to point
are of different gotra. In this state of the to the conclusion that, among the twice-born
authorities, I am not prepared to hold classes, the datta homan is necessary, unless the
that the time has come to discredit and adopted boy is of the samegfl/ra as his adopter,
discard the respectable body of Hindu or unless a usage to the contrary can be estab-
opinion, in texts and in decided cases, lished". In Mahashoya Shosinath Ghose v.
which lays down the datta homan is an Srimati Krishna SoondariDasi their Lordships
indispensable requisite for a valid adop- observed:
tion between persons of different gotras.
"The mode of giving and taking a
I am, therefore, constrained to find that
child in adoption continues to stand on
the adoption of defendant No. 1 is not
Hindu law and on Hindu usage, and it is
valid, though in fact it took place."
perfectly clear that amongst the twice
The Subordinate Judge, therefore, passed born classes there could have been such
a decree in favor of the plaintiff declaring the adoption by deed, because certain reli-
adoption invalid and awarding possession of gious ceremonies, the datta homan in
the property. particular, are in their case requisite."

The defendant No. 1 appealed to the The question in issue in that appeal was
High Court. whether there could be in the case of Sudras
such a giving and taking as was necessary to
A. G. Desai, for the appellant. satisfy the law, by mere deed, without an ac-
Coyajee, with R. A.Jahagirdar, for the re- tual delivery of the child by the father. Still
spondent. this dictum of their Lordships may be taken
as stating what their Lordships considered at
MACLEOD, C. J.:The plaintiff sued that time was necessary to validate an adop-
to obtain a declaration that the first defen- tion amongst the twice-born classes.
dant was not the legally adopted son of the In this Presidency at any rate the only
plaintiff's husband. The plaintiff disputed the cases in which an adoption has been recog-
factum of the adoption. That issue was found nized as valid without the datta homan being
in the affirmative, but on the issue of whether performed have been those in which the adop-
the adoption was valid, the Court held that tive father and the adopted son belonged to
the adoption was not valid though in fact it the samegfl/ra. All the authorities on this sub-
had been made, because the adoptive father ject are discussed in Valnbai v. Gorind
and the adopted son were of different gotra. Kushinath, and in Eal Gangadhar Tilak v.

6
 ADVERSE POSSESSION

Shrinivas Pandit, their Lordships in consider- Although the general rule might be as indi-
ing the same question gave their approval to cated above there was reason to think that there
the judgment of Sir Lawrence Jenkins in that were exceptions to it. There was a text of Manu
case. On a review of the arguments in that to the effect that if, among several brothers,
judgment it is obvious that the learned chief one has a son, that son was the son of all. To
Justice considered that it was only because this extent, that dotta homan was not essential
there was identity of gotra that datta homan when the adoptive father and son were of the
could be dispensed with. It must be noted, same gotra, they thought they might safely
however, that in referring to the decision of adhere to the decision in V. Singamma v.
the Full Bench of the Madras High Court in Vinjamuri Venkatacharlu.
Govindayyar v. Dorasami, their Lordships in The rule, therefore, may be stated in this
Eal Gangadhar Tilak v. Shrinivas Pandit con- form. The ceremony of datta homan is essen-
sidered that decision as being of value as con- tial to validate an adoption amongst Brahmins
taining a careful study of the authorities and unless the adoptive father and son belong to
affirming that the ceremony of datta homan the same gotra. Apart from all the consider-
was not essential to a valid adoption amongst ations there is this justification for it, that when
Brahmins in Southern India. With all due re- it is sought to introduce a stranger into a fam-
spect it would seem difficult to find from the ily it is desirable that all the religious ceremo-
judgment of the Full Bench that it was de- nies should be performed so as to ensure the
cided that the datta homan was not essential requisite publicity for the adoption. It may be
to any adoption amongst Brahmins. The head- said that there is a tendency in these days to-
note is as follows: wards dispensing with religious ceremonies,
but that is no reason why we should seek in
"The ceremony of datta homan is not
this case to depart from what must be recog-
essential to a valid adoption among Brah-
nized as an established rule of Hindu law. The
mins in Southern India when the adop-
appeal is dismissed with costs.
tive father and son belong to the same
gotra?

Their Lordships considered whether they Barton, Roy F. (1969 [1919]) Ifugao Law.
should depart from the decision in V.
The Indian Law Reports, Bombay Series. (1925)
Singamma v. Vinjamuri Venkatacharlu. They
pointed out that some doubt had been thrown
Vol. XLIX. Edited by K. Mel. Kemp.
upon the case by the observation of the Judi- Strouthes, Daniel P. (1994) Change in the Real
cial Committee in Mahashoya Shosinath Ghose Property Law of a Cape Breton Island Micmac
v. Srimati Krishna Soondari Dasi that datta Band.
homan was requisite in the case of Brahmins
and referred to the case of Venkala v. Subhadray
which was to the same effect. In V. Singamma
v. Vinjamuri Venkatacharlu the point was not
argued on both sides and Jagannatha, who was
Adverse possession is a
cited in the case, was no authority in South-
ern India. Their Lordships concluded that the
ADVKRSF, legal means by which an
original texts conveyed the impression that POSSESSION individual may acquire
datta homan might probably be an essential ownership of a piece of
part of a valid adoption as a general rule, and real property by taking possession of the real
that in a proper case there was sufficient property for a period of time without interrup-
ground for directing an inquiry as to usage. tion, and in full view of the public, including

7
AGE SET

the owner of the property. In United States law, begin to live in huts, which they construct them-
the possession must be open, notorious, hostile selves, near their village. Though they still go to
to the actual owner, continuous, under claim of their mothers' huts to eat their meals, they sleep
right (meaning that the adverse possessor must in their huts and begin to spend a lot of time
believe that the property is his or hers, and this with other males of the same age. In fact, the
is often demonstrated by the payment of prop- boys often visit their mothers in gangs to eat.
erty taxes), and exclusive. Adverse possession The Nyakyusa age village continues to grow by
takes ownership from the original owner and attracting area boys when they reach the age of
gives it to the possessor. Adverse possession is a ten or eleven. By the time that the oldest boys
part of the law of real property. Not all legal sys- in the village reach the age of sixteen, the boys'
tems recognize adverse possession, and those that village stops accepting new members, and the
do often have different requirements to estab- ten-year-old boys must then begin to construct
lish it. In the United States, for example, ad- a new village of their own.
verse possession is usually established with a As the boys of the village mature and marry,
continuous possession of twenty years, although they bring their wives to live with them. Often
one cannot possess adversely against the federal their daughters marry a man who is of the same
government, on the idea that it would take the age set as their fathers, and so remain in the vil-
government too much time and expense to pa- lage. Every generation, the older men give up
trol its vast landholdings to detect people trying their leadership and authority to an age set of
to establish adverse possession. On the other younger men in a special ritual. The older men
hand, Canada, which has far more land under also give up the land that they had been farm-
government ownership, allows adverse posses- ing, so that it will be available for the young men
sion to run against the federal government, ex- to use. Each of the younger men's villages
cept on federal Indian reserves. chooses its own headman, and the two oldest
sons of the former chief are installed as chiefs
over the whole chiefdom. The chiefdom is then
divided in two between the two sons, and the
division made permanent when the older chief
An age set is a group of dies. Thus, about every generation, the number
Aci:SR people of about the same of chiefdoms among the Nyakyusa people
age who are given an doubles; this doubling corresponds to the in-
age-set name and who go through life with per- creasing Nyakyusa population, as well as their
manent associations with other members of their geographic expansion. The retiring chief chooses
age set. Age sets typically are groups of males, the headmen of the villages and allots land for
and are usually formed during or just prior to the use of the younger men who have just come
adolescence. Age-set societies are found around into power.
the world, but are especially common in Africa The age-set villages are further organized
and Melanesia. An age set differs from an age by age grades. There are three age grades at any
grade in that an age grade is simply a categorical one time: the young men before they reach the
age range, such as "middle age." position of authority and leadership, the middle-
A very interesting, and perhaps unique, form aged men in position of authority and leader-
of the age set is found among the Nyakyusa ship, and the older men who have retired from
people of the Great Rift Valley in Africa. When positions of authority and leadership. The men
boys reach the age of ten or eleven years, they of the young men's age grade and the men of the

8
 AGE SET

Older Xavante boys in Brazil conduct initiation ceremoniesfor younger boys. Age setsgroups of people, usually
males, of about the same ageare widespread in societies around the world.

middle-aged men's age grade both fight in wars, young wives. When young men move away from
with the young men in their own units but un- home and into their own village, they have very
der the direction of the middle-aged men. few chances to see girls or women until they
The question as to just why this unusual sys- marry, and this is quite a bit later in life. Thus,
tem of political and social organization devel- had they remained near their father's area, they
oped cannot, of course, ever be fully answered, would be tempted to have sexual relations with
since it is impossible to go back in time to when his younger wives. Furthermore, it is the rule
the system began. The Nyakyusa themselves say that men inherit their fathers' wives as their own
that they developed it to separate a mans wife wives after he dies (though men may certainly
from his own father, and so to keep them both not marry their own natural mothers). Thus, it
virtuous by eliminating their opportunities to is expected among all that there is a natural sexual
sleep together; this explanation even has a his- attraction between sons and their fathers'wives,
torical myth to give it support. The more likely an attraction that will be the basis of sexual rela-
reason is that it developed to separate the young tions in the future. So, the age-set villages prob-
men from their fathers' wives, particularly the ably evolved to keep a man and his fathers' wives

9
ANARCHY

apart beginning at the age of boys' puberty, ten by the social elite. Aristocracy is derived from the
to twelve years of age. Greek language; the word aristoi is the word
The age-set villages have one further func- meaning "best people." The term aristoi was
tion, which may or may not have been inten- probably first used in the Greek middle ages,
tional in the development of the villages. The 1100-700 B.C., and referred to the wealthy city
villages make alliances between men that cross dwellers who were also the ruling class, although
lines of kinship. In other words, without these the term aristocracy itself was not used until cen-
villages, men would probably only have social turies later. The aristocrats were the families who
and political alliances with his own kin and with came early to the new city and were able to get
people who marry into his family. The age-set the best land, that on the plains. They had the
village provides a man with another social net- money to live in the city, whereas the poorer
work he can utilize in making a more secure life people were forced by financial constraints to
for himself and his family. find some open land far from the city. The
wealthy people considered themselves the aristoi,
Wilson, Monica. (1967 [1949]) "Nyakyusa Age- and often called those poorer folk who lived far
Villages." In Comparative Political Systems, away pejorative names, including "dusty-feet"
edited by Ronald Cohen and John Middle- and "sheepskin-wearers."
ton, 217-227. In modern times, those governments that
are known as aristocracies, most of them Euro-
pean, are also governments run by people of
wealth or political power who, once having ac-
Anarchy refers to a situ- quired power, consider themselves to be the best
ANARCHY ation in which there is a people in the society. They frequently consider
complete absence of gov- themselves not only the best suited to rule, but
ernment; the term comes from the Greek word the best people in every sense of the word. Aris-
anarchia (without rule). The subject of anarchy tocracies are often run by members of the wealthy
has drawn a good deal of attention from social upper social class or classes, and are therefore in
theorists, students of government, and philoso- such cases more properly called plutocracies.
phers. However, it is something that can exist
only in the minds of people. True anarchy can-
not exist for any length of time because when- Burn, A. R. (1974 [1965]) The Pelican History of
ever leaders and/or authorities are removed, new Greece.
ones inevitably develop in their place, and this
is true of any group of people.
The term anarchy is frequently misused by
some scholars to refer to societies in which there
is no centralized political system and/or no for-
mal political institutions. An association is an or-
ASSOCIATIONS ganized group with an
absolute membership
that is not formed solely on the basis of kinship,
The term aristocracy re- descent, residence, or territorial inclusion; it is a
ARISTOCRACY fers to a political system group whose members join voluntarily and in-
in which power is held tentionally. Common examples from our soci-

10
 ASSOCIATIONS

Members of the British royal family, gathered herefollowing Queen Elizabeth Us coronation in 1953,
are hereditary peers, which includes them among the elite in British society.

ety include sororities, fraternities, political par- men belonged. But what is perhaps most inter-
ties, social clubs, professional associations, and esting about the Yako was that their villages,
service organizations (such as the Shriners, the which were independent of one another, were
Rotary, etc.). All associations have political im- governed by associations and not by headmen,
pact, whether it is only upon their members in priests, chiefs, kings, or presidents.
the conduct of the association's business or The Yako traced their descent bilineally. The
whether it is by design in the larger community. patricians were local, but the membership of each
Among the Yako people of Nigeria, asso- of the matriclans was dispersed among a num-
ciations were an important part of social and ber of villages. The heads of the patricians usu-
political organization. In addition to such things ally belonged to an association of leaders in each
as professional associations (some Yako men ward (part of a village). However, they were not
belonged to a fighters' association, others to a the only members, and were actually in a mi-
hunters' association), the Yako had an associa- nority. Other members were those with ambi-
tion of priests and an association for ritual and tion and intelligence who possessed leadership
recreational activities to which most boys and qualities. Though most of the association of ward

11
Members of the Republican Party celebrate in New Orleans in 1988 as George Bush and Dan Quayle
become nomineesfor the presidency and vice-presidency of the United States. Men and women
with similar political viewsjoin a party, an example of a voluntary association, that is, a group
not based on descent, kinship, or residence.
 ASSOCIATIONS

leaders were older men, some younger men with Yako had developed a townwide association that,
unusually great abilities were welcomed as mem- though primarily religious in function, also
bers too. Priests were also gladly received into served to resolve such disputes. Many of the
this association. The ward leaders, in short, were members of this association, known as the
the eminent men of the ward. Those who left Okenga, were the heads of the various ward lead-
the ward leaders' association were expected to ers' associations and their deputies. As with the
provide their own successors, and they were fined ward leaders' association, the members had au-
if they did not do so. It was the members of the thority primarily not through any formal author-
ward leaders' association who selected their own ity, but because of the prestige that membership
leaders from among their ranks. brought to the heads of the ward leaders. Using
The ward leaders' association had several this prestige, they were able to get many people
means of governing, two of which depended to abide by their decisions when they otherwise
upon the prestige of being a member of the as- would not have done so.
sociation. If a clan leader wished to join the as- There was yet another villagewide associa-
sociation, but there was a dispute within the clan tion, known as the "Body of Men." This asso-
or involving the clan leader, the dispute had to ciation dealt specifically with trespass on farms
be resolved properly before the clan leader could and the theft of crops. Those who paid the Body
join. More usually, however, the clan leader used of Men a fee received in return detective ser-
the prestige of being a member of the ward lead- vices to discover the thief, prosecution of the
ers' association to give him at least some of the alleged offender before the ward leaders' asso-
authority he needed to have people within his ciation or the village priests' association, and the
clan abide by his decisions. A more direct and enforcement of any sanctions decided by either
powerful authority was that which the head of of those associations. Payment also guaranteed
the association had, in the name of the associa- the protection of the spirit associated with the
tion, over all other men's associations within the Body of Men.
ward, including those of the fighters and of the A final association that held villagewide le-
hunters, as well as the age sets of younger men. gal authority was the council of priests. The Yako
However, the ward leaders' association had had a large number of religious cults, and the
no control over another men's association within priests of these cults formed an association of
the ward, called the nkpe. The nkpe was essen- their own. To them were brought disputes in-
tially associated with the supernatural, in the volving offenses that were either taboo (punished
form of the Leopard Spirit. Using the Leopard by supernatural forces), such as murder, incest,
Spirit, the nkpe punished those who stole from, and abortion, or major offenses that the afore-
or seduced the wives of, its members or anyone mentioned associations could not resolve. The
else who paid for this protection. The nkpe also council of priests had at their disposal the repu-
considered itself a means of thwarting the ex- tation of high moral caliber and the power of
cess power of the ward leaders' association, a sort the supernatural world. Thus, their decisions
of political opposition. The ward leaders' asso- were often accepted when the decisions of the
ciation in turn would admit no prominent nkpe other associations went unheeded.
members. In short, the Yako associations generally
The ward leaders' association had, thus, no constituted weak legal authorities. With the ex-
authority in disputes between wards or disputes ception of the Body of Men in cases involving
between clans in different wards, disputes that crop theft, there was no way to enforce the law
could sometimes have severe consequences. The through coercion. All of the other associations

13
AUTHORITY

depended upon the prestige of the authorities, students know, each classroom teacher is a sepa-
their ability to use supernatural power, or their rate authority whose laws and rules are different
moral rectitude. Though one or more of these from those of other teachers.
was generally sufficient to resolve a dispute, they It is important to distinguish between for-
were not universally effective. For this reason, mal authority and informal authority. Formal
the colonial District Native Court fairly quickly authority is the kind of power that derives from
was adopted by the Yako as the quickest and best an office and that is strictly defined by law. The
way to handle most disputes, although associa- limits to the power of the officeholder are spelled
tions remained and carried out other tasks. out, and even the term of office has a limit; there
The Yoruba people, who also live in Nige- is a formal assumption and declination of of-
ria, have a number of different kinds of associa- fice. Most of us are familiar with formal author-
tions. Many of these are secret, and anyone who ity. The president of the United States can order
reveals to nonmembers the rites and ceremonies the U.S. military to attack, can launch a nuclear
of the secret society may face the death penalty. missile, or can pardon anybody in the United
The Yoruba also have trade guilds, which one States of any crime, but he cannot force a child
must join if one wishes to engage in a trade. at the dinner table in a Kansas town to finish his
vegetables, which the child's parent, as a legal
authority over the child, has the power to do.
Ajisafe, A. K. (1946) The Laws and Customs of An informal authority creates his or her own
the Yoruba People. authority based upon his or her own personal
qualities and opportunities. Someone who is
Forde, Daryll. (1961) "The Governmental Roles
charismatic and/or intimidating can create for
of Associations among the Yako." Africa
himself or herself enormous amounts of power.
31(4): 309-323.
Band headmen and tribal headmen and big men
are examples of informal leaders/authorities.
These people have titles but no offices. Their
positions as headmen or big men often last their
entire lives, since, again, it is the qualities of the
According to Leopold individual that are important, not a term of of-
AUTHORIT Pospisil of Yale, an au- fice. Further, when new headmen and big men
thority is an individual come into power, they do not have the power of
or group of individuals whose decisions are usu- their predecessors; the leadership and authority
ally followed by the majority of a group. We can of the new headmen and big men must be cre-
see from this that an authority is a type of po- ated anew by the new leaders/authorities and is
litical leader, though not necessarily one who always different in character and scope.
leads in the execution of a decision. In every One good example of this concerns the suc-
group that has some purpose, there is always a cession of headmen for life who were Grand
leader, usually an authority as well. Even in a Chiefs of the Micmac Indians of Cape Breton
group of boys on the playground (the function Island, Nova Scotia. From the early twentieth
of which is to play together), there is one boy century until 1964, Gabriel Sylliboy held the
whose decisions are usually followed by the rest position. Sylliboy was known for making strin-
of the group. Another authority is the classroom gent laws concerning proper behavior. He al-
teacher, who makes laws and rules as to the kind lowed no drinking to excess, no child neglect,
of behavior allowed in the classroom group. As no fighting, and no vandalism. He usually went

14
 AUTHORITY

to visit the offenders and lectured them pub- in New Guinea and one in the Arctic. The Mic-
licly, humiliating them into complying with his mac too have had their share of authorities with
laws. He also lectured each newlywed couple for absolute power. In the seventeenth century, ob-
hours on the proper roles of husband and wife. servers described two such men, one in Nova
When he died in 1964, he was replaced by Scotia and another in New Brunswick. The man
Donald Marshall. Donald was a very quiet and in New Brunswick would beat his followers if
nice man who was well liked. However, he did they did not please him, and if they requested
not pursue any of his predecessor's policies and something of him, he required a lengthy show
did not punish people for improper behavior. of submission before he would condescend to
Two things happened as a result of this. The first listen to them. The man in Nova Scotia used
is that Micmac behavior in Cape Breton dete- sorcery to control his followers, even going so
riorated. Fighting, vandalism, child neglect, and far as to wear his death-dealing magic charms
drinking to excess became far more common. around his neck in full view. This would be com-
This process went so far that eventually non- parable to the mayor of New York City walking
Micmac Canadian federal police began to en- around the city carrying a rocket launcher; it is
force Canadian laws on the reserve, which they an arrogant display of naked power. Yet, some
had had little reason to do before. The second authors have described band societies as egali-
result was that the Micmac people of Cape tarian and their leaders as first among equals
Breton lost respect for Donald Marshall and for (Vivelo, 1978: 135)! Rather, the Micmac band
the position of headman. They came to realize looks to the headman for decisive leadership,
that he could not keep control of the Micmac strong morals, and vigorous punishment of of-
people for the safety of all, and regarded him as fenders. Both in traditional times and today, the
more or less useless to them; he had, in effect, Micmac choose as authorities physically large
ceased to function as an authority. They came to and strong men who can for this reason stand
look to the Royal Canadian Mounted Police, up to opposition and to those who would try to
whom they distrust to a great extent, to help intimidate them. In the past, if the Micmac failed
them keep conditions safe on the reserve. to change their leader/authority's mind on a di-
One should never confuse the formality of visive issue, then those who disagreed with him
an authority with the power of that authority. simply left his authority.
The two are functionally not related. Hitler, The traditional authorities of the Navajo
Stalin, and Mao Zedong are good examples of Indians of the southwestern United States rep-
informal authorities who were able to amass for resent another interesting case study. The Na-
themselves the power to control the fates of their vajo have usually been characterized as having
nations, the power to kill political enemies by had a very diffuse system of authority, one in
the hundreds, thousands, and even millions, and which every relatively successful man was con-
the power to wage wars; to become, in short, sidered a headman, with no centralized hierar-
dictators with total power. They were charismatic chy of authority. While this is essentially true, it
leaders, first of all, intelligent and shrewd in se- is also true that each functioning group had an
lecting people to help them. They used propa- authority. These groups include nuclear fami-
ganda to increase popular support and terror to lies, extended families, local groups, raiding
silence their opponents. groups, hunting groups, and ceremonial or ritual
The authorities in small societies can also groups. All earned their authority, and none
have absolute power over their followers. Pospisil (with a relatively insignificant exception) had
(1971: 62) describes two such authorities, one ascribed status that came through the luck of

15
AUTOCRACY

heredity. For example, any man could be a hunt

leader if he had demonstrated skill in hunting Michels, Robert. (1937) "Authority." In Ency-
and if he learned the rituals necessary to lead a clopedia of the Social Sciences, vol. 2.
hunt. Once he had achieved these goals, he led
Pospisil, Leopold. (1974 [1971]) Anthropology
hunt parties and had absolute authority over how
of Law. A Comparative Theory.
they were to be conducted and over the actions
of all members of the party while engaged in a Shepardson, Mary. (1967 [1963]) "The Tradi-
hunt. tional Authority System of the Navajos." In
A peace chief, or natani, was an authority Comparative Political Systems, edited by
who had the right to speak for a large group of Ronald Cohen and John Middleton, 143-154.
people. He made treaties, spoke before as- Strouthes, Daniel P. (1994) Change in the Real
sembled groups on ethical issues, and directed Property Law of a Cape Breton Island Micmac
group economic activities, especially those re- Band.
lated to horticulture. He also decided legal dis- Vivelo, Frank Robert. (1978) Cultural Anthro-
putes over all types of matters, especially trespass pology: A Basic Introduction.
and land tenure. He was chosen after all the
adults in the area had been consulted. Usually,
he was chosen by a unanimous vote of all adults.
The personal characteristics of charisma, wis-
dom, speaking ability, and overall level of skills Autocracy refers to a
were most important. situation in which the
Curing rituals were usually held by singers, political power of a so-
people who would sing curing music. They had ciety resides in the hands of one person. The
to learn the special chants that were necessary term is derived from the Greek autos (self) and
to bring about a cure. During the curing ritual, kratos (strength or rule). There are two types of
the singer had absolute authority over the pro- autocratic leaders: the despot and the totalitar-
ceedings, which sometimes attracted several ian dictator.
hundred people. An especially great singer had The first type, the despot, is a person who
political influence beyond the scope of the cur- does not care what his followers think or be-
ing ritual, and most natanis were in fact lieve, so long as they comply with his wishes.
Blessingway Singers. Examples of despotic leaders are Ghengis Khan,
The raiding party leader was likewise a man the Chinese emperors, and some European
of skill, who also had learned the proper ritual kings. Despots can also exist in small tribal so-
magic necessary to conduct a proper raid. He cieties. Watson has found a case of a despot in a
asked for volunteers (four to ten men for a raid, small Tairora language society in New Guinea
and thirty to two hundred to take revenge for a known as Abiera. There, a man known as Matoto
raid that they themselves had suffered) who came to power as a despot around the turn of
would be under the leader's absolute authority. the century. Matoto was a strong man, a bully.
The Navajo authorities never organized He came into power as a result of his personal
themselves into associations. That is, there fearlessness and his willingness to fight and to
were never any groups of natanis, or hunting kill others. His fearlessness he proved early in
leaders, etc. life, when he would go to sleep wherever he was
when night fell, oblivious to the dangerous ani-
See also BIG MAN; HEADMAN; LEADER. mals or humans who might come across him in

16
 AUTOCRACY

Chinese carry posters of Mao Zedong, the principal leader of the Peoples Republic of China, in 1950. Chairman Mao, a
totalitarian dictator, dominated the policies and politics of his country until his death in 1976.

the forest or in the fields. When he reached Matoto could be seen easily in a battle because
adulthood, he became a very dangerous person of his size and by the fact that he had a distinc-
indeed. He would kill people both inside his tive black shield, but he was so dangerous that
society and outside of it, often for no apparent opposing warriors, out of fear, attempted to avoid
reason. He would also attack people who dis- him rather than fight him.
pleased him, and once killed one of his wives for Matoto also worked as a mercenary, so well
this reason. He was aided in his fights by the known were his fighting capabilities. Represen-
fact that he was larger than other men and, after tatives of other villages would visit Matoto and
a while, by his reputation, which caused other hire him to fight their enemies. In a similar case,
people to try to flee rather than fight him. Matoto acted simply as a hired killer. A group
Matoto fought people in a variety of ways, and of men had a grudge against a man who was
was not above ambushing or stalking his vic- living in Matoto's village. This man was not
tims. However, he was said to be an invincible originally from Matoto's village, but had mar-
power even in war, despite the fact that it was ried a woman who was, and he lived with her. The
usually the goal of every warrior to try to kill the group of men went to Matoto to get his permis-
enemy's strongman for reasons of personal glory. sion to kill the man (necessary to avoid a war

17
AUTOCRACY

between the two villages), but wound up hiring the time. Standing in the cross fire, he ordered
Matoto to kill the man instead. This Matoto did them to cease their dispute. They did so imme-
without hesitation and, apparently, with no more diately, since they realized that to continue would
reason than that he was paid to do so. have meant facing Matoto as an enemy, which
Matoto also had sexual intercourse with they feared greatly.
whatever women he wished. If he desired a Matoto also increased the size of his follow-
woman who was in her house with her husband, ing by giving political asylum to a group of refu-
Matoto would enter, tell the man to leave, and gees who had been dispossessed of their land.
then have sexual relations with the woman. This group spoke a different language, but later
Matoto's sexual appetite was large, even though became nothing more than one of the two large
he had at least sixteen wives. kin groups in Abiera society.
Matoto became the leader of his village Matoto cultivated influence by being a gra-
through intimidation. Simply put, no one would cious host to those who came from outside of
stand up to him. Everybody around him would the village because it is politically important to
behave in a manner calculated to escape his at- make alliances with such people. Apparently,
tention as much as was possible. That is, they Matoto did not go far enough in this respect: he
walked slowly, avoided looking at him, and kept was killed in an ambush in an outside village.
their voices low. Visitors to the village would be The second type of autocratic leader, the
in particular danger, and Matoto would shout totalitarian dictator, is a person who wants to
that he would kill the visitor upon seeing him control the minds of his followers as well as their
for the first time. A man who visited his sister behavior. These people use propaganda, deceit,
living in Matoto s village would slip into the vil- control of the information that reaches follow-
lage unseen and spend his entire stay in the vil- ers, and brainwashing to alter the thinking of
lage behind the walls of his sister's house. other people in the society. Examples of totali-
Matoto's leadership was not simply that of tarian dictators are Hitler, Castro, Stalin, Mao
a person who bullied everyone else into follow- Zedong, and Pol Pot. Totalitarian dictators are
ing his orders, though that was usually how he found only in twentieth-century state societies.
exercised his power. He also realized the impor-
tance of having a united village as a base of sup-
port. When a dispute within the Abiera village Watson, James B. (1973 [1971]) "Tairora:The
broke out and caused the murder of one man, Politics of Despotism in a Small Society." In
Matoto inserted himself between the two armed Politics in New Guinea, edited by Ronald M.
groups who were firing arrows at each other at Berndt and Peter Lawrence, 224-275.

18
 primarily by season. Typically, large numbers of
smaller bands would congregate in a few places
near bodies of water during the summer, thereby

B
making up a few very large bands. At these
places, where the fish were plentiful, people so-
cialized, young adults chose mates, and leaders
discussed matters of common concern, includ-
ing disputes. As fall came, the smaller bands re-
formed, sometimes with different memberships,
and they spread out over the land to harvest dis-
persed food, hunt animals, and find hardwoods
for firewood.
The second feature common to bands is in-
formal political leadership and legal authority.
Band leaders and authorities, usually one and
the same individual, are headmen or big men.
Their power and position derives not from any
office (there is no such thing in band societies),
but from their own personal characteristics, es-
A band is a type of soci- pecially charisma. Thus, the qualities of the po-
BAND ety and political group litical leaders and the legal systems that different
that is most commonly bands have, even bands who speak the same lan-
found among hunting/fishing/gathering peoples. guage and live adjacent to each other, can vary
Bands are usually small societies: as small as a greatly. One band may have a despotic leader
nuclear family or as large as 400 people or so. who terrorizes his followers into submission,
Bands are almost always legally and politically while the next band may have a leader who is
autonomous, unless some compelling outside followed because he provides food for his fol-
influence (such as a war) necessitates bands to lowers, and the one next to that has a leader
work together for a common purpose. whose most important characteristic is the abil-
Bands typically have four distinctive fea- ity to make just decisions in disputes among his
tures. The first of these is that band member- followers. There are also differences in the geo-
ship is usually fluid, in the sense that a person graphic extent of a leader's power in band soci-
can be a member of one band one year and then eties. Among the Micmac Indians of eastern
live with another band the next year. It also of- Canada, for example, each Micmac band was
ten happens that part of a band's membership traditionally led by one headman or big man,
will leave the band to start a band of their own. and no leader had any authority over any band
This fluidity occurs for a variety of reasons: to but the one of which he was a member. This
find resources such as food as the seasons change, was true for all the Micmac except the ones who
to join another set of kin living elsewhere, to lived on Cape Breton Island, Nova Scotia, where
escape from an undesirable leader/authority, or one headman led all of the bands on the island
to avoid revenge. and had legal authority over all the members of
Among the Algonkian Indians of northeast- these bands.
ern North America and the Indians of the sub- The third characteristic of bands is that the
arctic, band size and membership varied leader/authority is, so far as can be determined,

19
BAND

almost always male. The simple reason for this bership, thus virtually guaranteeing the leader-
is that most bands rely upon hunting for the bulk ship of that family s head.
of their food and clothing, and hunting is a male The IKung Bushmen of southwest Africa
activity because of the strength and stamina re- are a well-known example of a band society. De-
quired, as well as the need to hunt even when spite the fact that they live in a hot and arid en-
children are being born and raised. It is the best vironment, they are culturally similar in many
hunters who attract followers, both male and ways to northern band societies. Their nomadic
female, and so become leaders. The best hunt- bands are based upon ties of blood and marriage.
ers attract male followers because the followers The entire population of the IKung was approxi-
find that the best hunters can help them in their mately 1,000 in the early 1950s, and this was
own hunting efforts (locating game and the lo- divided into thirty-six or thirty-seven autono-
gistics of hunting). Good hunters have food sur- mous communities. Though autonomous, each
pluses, which they can share with their followers, band is linked to many others through blood and
which makes them attractive as leaders to both marriage ties. Each band owns one or more per-
men and women. Nobody will follow a poor manent and one or more semipermanent water
hunter as a leader. holes, and the use of these is controlled by the
The Micmac Indians provide another rea- headman so that they are not overused; visitors
son for why men, particularly strong men, are to the area must ask the permission of the head-
followed as leaders/authorities. In band societ- man before taking water from a water hole.
ies, there is usually no one to assist a leader or Each band is also divided into nuclear and
legal authority in enforcing his decisions. There extended families, of which the father is leader
is no separate police force or penal system with and authority. The nuclear family becomes ex-
the physical power to ensure that decisions are tended when there is a relative who comes to
carried out. Further, there is no court bailiff to live with it, such as a parent of the husband or
protect the leader/authority from the physical wife, a sibling of either, or a young man who is
threats of someone who might seek to intimi- providing bride service after marrying a daugh-
date him into changing his decision to benefit ter of the family.
the intimidator. For this reason, the Micmac IKung people tend to remain in the bands
choose physically strong men as their leaders/ in which they are born, although people some-
authorities so as to help ensure that the deci- times leave when they marry. The other factor
sions they make are just ones insofar as they are influencing band membership is the resources,
not influenced by physical intimidation. particularly water, over which a band has con-
The fourth feature of band politics and law trol. If there are not enough resources, people
is the importance of kinship ties, although it is leave to join another band. Bands sometimes
recognized that kinship ties are also crucially split if a man who is a strong leader decides to
important in other kinds of societies as well. The leave and enough people wish to follow him to
band headman or big man uses his siblings, chil- begin a new band.
dren, grandchildren, and spouse as his base of The headman is typically the oldest son of
support, since they are his natural political al- the previous headman, and takes his position as
lies. The larger the number of offspring and headman upon the death of his father. A head-
grandchildren he has, the more powerful he is man has prestige and the respect of the people
likely to be. In many cases, one extended family in his band, but only if he makes sure that he
may make up the majority of the band s mem- does not do things that arouse jealousy, such as

20
 BAND

Members of a nomadic !Kung band roam southwest Africa's Kaukau Veld and Kalahari Desert. The IKung are an
example of a band society. A band is a social and political entity that includes members of the nuclear and extended
family; such organization is common among huntingy fishing, and gathering groups.

eat better than the others, acquire more mate- tury. This band consisted entirely of a large,
rial wealth, or fail to be very generous. For this mostly patrilineal, extended family, typically a
reason, the position of headman is not particu- grandfather and grandmother, father and
larly desirable. mother, sons and daughters (natural and
The IKung headman's principal duties are adopted), nieces and nephews, and people at-
to control the use of the native food plants and tached to these through marriage. The Russian
the water, and to direct the movement of band undivided family owned all of the family's prop-
members so as to make the most efficient use of erty in common, and no part of that property
these resources. The headman does not control could legally be alienated without the express
torts, or private wrongs; these things are handled consent of all members of the undivided family.
by the parties to the disputes, and typically in- The individual family was led by the oldest
volve revenge. man, who was assisted by the oldest woman in
One interesting form of band is the Russian the administration of the affairs of the women
undivided family, which existed in parts of Rus- and girls. When the old man became incapable
sia as late as the beginning of the twentieth cen- of handling his duties, the family elected a

21
BIG MAN

replacement. The house elder also represented the big man has generated the wealth he shares
the interests of the undivided family to the vil- with others through his successful entrepreneur-
lage and district authorities, as well as the tax ial activities. The big man is found most often
collector. in hunting-gathering societies and in pastoral
The house elder s greatest power lay in his and horticultural societies. Big men differ from
authority over the domestic affairs within the headmen in that the former have more economic
undivided family. He could make decisions be- power over their followers, though both may
tween husband and wife, even to the point of exercise a wide variety of other types of power.
ordering a young man to beat his wife. The house The big man is generous with his wealth, and
elder also assigned the daily agricultural labor of he uses the actual or implied threat of ending
the family members; he determined who would his generosity to induce followers to obey him.
plow, who would thresh grain, etc. If there were Those who give material wealth away to oth-
too many people in the family to be profitably ers not surprisingly become leaders. Those who
employed as agricultural laborers, it was the benefit from this generosity naturally become
house elder who determined which ones would politically loyal to the big man. The big man is
stay with the family and which ones would have skillful in what he does, otherwise he would not
to leave to find some other form of livelihood; have amassed the wealth that he has; thus, people
those who worked elsewhere, however, were re- ask him for advice. Those who depend on the
quired to share their earnings with the rest of big man for the wealth they need also agree to
the family. The house elder also signed contracts abide by his legal decisions, or risk losing his
for the sale of the agricultural produce. generosity. The big man's goal in amassing
wealth is to have prestige, political power, and
See also AUTHORITY; BIG MAN; HEADMAN.
legal authority. Of course, generosity is not the
only reason why people follow a big man. A
Kovalevsky, Maxime. (1966 [1891]) "The Mod- wealthy and generous person who is also per-
ern Russian Family.''\nAnthropology and'Early sonally immoral may not be obeyed no matter
Law, edited by Lawrence Krader, 148-170. how much wealth they give away. Cowardly men
also have trouble leading, as do those with low
Llewellyn, Karl N., and E. Adamson Hoebel.
intelligence or poor judgment.
(1961 [1941]) The Cheyenne Way.
One of the best described examples of the
Marshall, Lorna. (1967 [I960]) "IKung Bush- big man is that of the Kapauku Papuans of high-
man Bands. "In Comparative Political Systems, land New Guinea, who were studied by Pospisil
edited by Ronald Cohen and John Middle- (1958). The Kapauku big man is called tonowi
ton, 15-43. (wealthy man). The tonowi is a healthy, middle-
Strouthes, Daniel P. (1994) Change in the Real aged man who has a great deal of cowrie (money
Property Law of a Cape Breton Island Micmac in the form of cowrie shells) and credit, twenty
Band. or so pigs, a large house, many cultivated fields,
and several wives. Wealth is the single most im-
portant factor in establishing high prestige and
status among the Kapauku. The tonowi is
A big man is an infor- middle-aged, because he creates his wealth with
BIG MAX mal leader/authority his own two hands; young men have not had
who creates his own the time to amass a fortune, and older men can
position through generosity to others. Usually, no longer work hard to create sufficient wealth.

22
 BIG MAN

However, not all wealthy men can become will persuade other men to help him give a pig
a tonowi. If a wealthy man wishes to become a feast.
tonowi, he must be very generous with his wealth. Further, a tonowi may lend money outside
He must make cash loans, give pig feasts (with- of his village and even outside of his political
out taking part of the pig himself), and support confederacy, giving him political power over a
a large household of wives, children, boys from wide region. These men also influence politics
the community, and friends. Further, the tonowi between villages and confederacies by regulat-
himself does not practice conspicuous consump- ing contacts between them.
tion. He wears the same clothes as others, and One tonowi led his household, his village, a
eats only a little bit better. The rich Kapauku sublineage, a lineage, and a political confederacy.
man who, on the other hand, keeps his wealth But because he had authority over his followers
for himself is ostracized as immoral and is the only, he could not make binding decisions in
target of gossip. Finally, the tonowi must be an cases involving members of different lineages.
eloquent speaker in public. Rather, he had to try to persuade lineage leaders
Other qualities that increase the tonowi's to accept his decisions.
hold on his position are experience as a warrior It should also be noted that big men are not
and shamanic expertise. Extraordinary wealth in always the only type of leader in a group of people
the hands of a tonowi makes him a maagodo sharing the same language and territory. The
tonowi (very rich man), and this means that his Kapauku may have had only big men as leaders,
power and authority are even greater. but among the traditional Micmac Indians of
The tonowi political power and legal au- eastern Canada, some leaders were big men while
thority derive primarily from his wealth. Some others in neighboring bands were headmen who
people obey his decisions because they have bor- were obeyed for their wisdom, or who ruled their
rowed money from him and fear being asked to followers by intimidating them with violence.
repay it. They are grateful for the tonowi's gen- Big men distribute their wealth in different ways
erosity and do not wish to lose it. Others obey in different places; Micmac big men simply gave
the tonowi because they believe that they them- away their wealth, and never lent it.
selves may later wish to borrow money from the Another example of the big man may be
tonowi and do not want to risk losing his future found among the Nunamiut Eskimos (Eskimos
goodwill. A third category of people obedient are sometime also known as Inuit) of Anaktuvuk
to the tonowi are the boys who live with the Pass in the Brooks Range of northern Alaska.
tonowi. These boys, known as ani jokaani (my An Eskimo big man is called umialik, which
boys), work in the tonowi's fields and house and translates literally as "having an umiak." An
fight for him in wars. In return, the tonowi gives umiak is a large, sturdy, open skin boat, an ob-
them food, shelter, education, and a loan to pay ject of considerable value. Thus, by extension,
the bride-price. an umialik was a man who had a great deal of
The tonowi has authority over his followers wealth, and the Eskimos use the term to apply
only. Of course, most people in a village are in- to any man with a great deal of wealth, whether
debted to the village s tonowi financially or po- he actually owns an umiak or not. The umialik
litically. It is also the case that in some villages gained his wealth from his great hunting and
there is more than one tonowi who share power fishing expertise, as well as his activities in trad-
and have followers in common. Within the vil- ing meat, pelts, clothing, and luxury goods with
lage, the tonowi will decide upon the building of other Eskimos and with Indians. But his great-
bridges, feast houses, and drainage ditches, and est quality was his capacity for hard work; the

23
BLACK MARKET

typical umialik did not hold shamanic supernatu- Another type of big man has come into be-
ral power in too high a regard, since he knew ing with the involvement of state societies in the
that he could get what he needed through ordi- affairs of local indigenous populations. In mod-
nary labor. ern times, government aid to Indian groups in
Generally speaking, each band had only one the United States and Canada has created big
dominant umialik. The umialik had great power men out of those local native people designated
with respect to internal band affairs, but never by the federal governments to distribute this aid.
acted as a representative of the band to outside
See also AUTHORITY; CHIEF; LEADER.
parties. The umialik, through his hard work,
became an inspiring leader by example to the
young men of the band. He was further respected
by most or all other members of the band for his Gubser, Nicholas]. (1965) TheNunamiutEski-
hunting abilities. Thus, people listened to him mos: Hunters of Caribou.
when he spoke of hunting strategies. As a trader,
Pospisil, Leopold. (1958) Kapauku Papuans and
the umialik gained power by giving other mem-
Their Law.
bers of his band very good deals on goods
brought from far away. If someone needed ma- . (1963) The Kapauku Papuans of West
terial help, food, or clothing, the umialik would New Guinea.
simply give it. This generosity would increase . (1964) "Law and Societal Structure
the good will that the people extended to him. among the Nunamiut Eskimo." In Explora-
Since the umialik always had a surplus of food, tions in CulturalAnthropology .'Essays in Honor
people would come to visit and eat with him. If of George Peter Murdock, edited by Ward H.
the umialik had the personality of a true leader, Goodenough, 395-431.
he would use these opportunities to listen sym- Strouthes, Daniel P. (1994) Change in the Real
pathetically and offer advice, which others al- Property Law of a Cape Breton Island Micmac
ways wished to hear from someone as successful Band.
as the umialik. When a serious dispute erupted
among the people of a band, the umialik used
his prestige and notoriety to lead and to mold
public opinion on the case. The umialik would
lead the group of adult men who made and en-
forced decisions in the formation of those deci- The term black market
sions, such as the decision that a serious and BLACK MARKKT refers to illegal trade.
recalcitrant thief should be banished from the The term itself is not of-
band. Sometimes, as Gubser reports, the effect ten used in this country, except to refer to illegal
of the umialiKs efforts to mold opinion in oth- trade in foreign countries, although the illegal
ers was so subtle that those whose opinions were trade carried on in this country is nonetheless
being shaped did not always realize what the black market trading. In the United States, most
umialik was doing. black market activities come in two forms. One
However, if an umialik led the band in a is the trading in illegal goods and services, such
group hunt of caribou, and it failed, the umialik as prohibited drugs, weapons, and prostitution.
would be held accountable and all of his subse- Another type of black market trading in the
quent opinions and judgments would be held to United States is the sale of goods and services
be bad. that are unreported to the government so as to

24
 BLACK MARKET

Black markets, illegal trade in goods and services, operate beyond the law. Brazilian vendors sell produce on a Rio
de Janeiro street in 1989 to avoid governmental bureaucracy and taxes.

avoid the payments of taxes and fees. Some ex- could use their wealth to buy merchandise in
amples of this are the sale of bootleg liquor, order to resell it. This would be capitalistic en-
untaxed cigarettes, and the practice of working terprise, and was thus forbidden.
for an employer who does not collect income However, the People's Republic of China
taxes or social security and medicare taxes, has, until very recently, proven to be inefficient
known as "getting paid under the table." in the production of consumer goods, resulting
But each society's black market exists for in a scarcity of many of the things people wanted
different reasons and operates in different ways, to own. This scarcity prompted people to use
because the trade laws of each society are differ- their official positions as workers in factories,
ent as are the needs of its people. For example, farms, stores, warehouses, etc., to acquire control
in the People's Republic of China, the state un- over the distribution of goods and to sell them
til recently had a monopoly on trade so as to to other people. The private sale of goods was
prevent capitalism, to which the Chinese Com- illegal in China until very recently, although so
munist government was ideologically opposed. many people did it that it was rarely punished.
Capitalism is an economic system in which Some of the motivation for engaging in
wealth reproduces itself. If the state allowed or- black market activities, which the Chinese call
dinary Chinese people to engage in trade, they zhou-houmen (going in the back door), was to

25
BLACK MARKET

make a profit. But far more important was to to sell him one. In this way, Chinese people
use the black market to be able to give or sell would use the black market for many of the
goods to friends, relatives, and Communist Party things that they wanted, even movie theater tick-
officials, so as to make of them good connec- ets or good-quality cigarettes, and so developed
tions, known as guanxihu (special relationships), a large circle ofguanxihu.
who will return one s largess with goods, which
one later needs oneself. In other words, a worker
in a store that sells comforters would save some
on the side so that if someone who can help the Mosher, Steven W. (1983) Broken Earth: The
worker later comes by, the worker would be able Rural Chinese.

26
 collections of codified canon laws were circu-
lated by priests and others, but many of the laws
contained within them were not genuine canon

C
law. As well, as the laws changed over time, older
codes began to conflict with the newer. These
contradictions were partially smoothed over by
Gratian, a Camaldolese monk, who worked the
old and new codes together in a single work,
known as the Concordantia Discordantium
Canonum. Despite the fact that this work never
received official approval from authorities in
Rome, it was widely accepted and used by ca-
nonical courts.
Students of Roman Catholic Canon Law
were forbidden to study the laws of Rome, which
many legal scholars consider to be the most logi-
cally consistent in the world. The reason for this
was that Roman law was not in accordance with
Catholic principles. Roman law, through the
Canon law is law made institution of patria potestas, gave the father of
CANON LAW by ecclesiastical courts the family great power over his wife and chil-
and may be made by the dren, while Catholic Canon Law defended the
courts of any church of any religion. Canon law equality of the husband and wife in marriage.
generally deals with matters pertaining to church The canonical courts also stressed the use of le-
doctrine, disputes between priests, disputes over gal measures of dispute resolution as opposed to
rituals and ceremonies, and all other similar af- extralegal measures, such as dueling, which was
fairs pertaining to religious activity. once popular.
In the specific case of the Roman Catholic The Roman Catholic Canonical Courts had
faith, canonical law dealt with disputes on the exclusive jurisdiction over clerics, demonstrat-
following civil matters: marriage (adultery, en- ing that the personality principle of law was ap-
gagements, legitimization of children, distribu- plied. After the year 1279 in Rome, a Roman
tion of marital property, and separation from bed Catholic cleric who committed a crime and was
and board), wills, usury, agreements undertaken arrested by secular police had to be turned over
on oaths, ecclesiastical goods (benefices, alms- to the canonical court. This rule was instituted
giving, and tithes), as well as vows and sacra- not by civil Roman authorities, but by the
ments. The canon courts also decided cases church's Council of Avignon, which provided
involving crimes such as witchcraft, blasphemy, that the persons in charge of a cleric who did not
sacrilege, and simony. turn the cleric over would be excommunicated.
In the Catholic Church, canon law was The thirteenth century also saw canonical
originally derived from the rules (called canons) courts grow in their power simply because of
made by church councils and the decretals (de- the fact that they were deciding so many cases
creed rules) made by popes. These were both that the secular authorities began to grow jeal-
codified at an early point in church history. From ous of their influence. Some of the French bar-
the fifth century through the eleventh century, ons in 1225, lead by Peter de Dreux, started a

27
CAPITAL PUNISHMENT

movement to have the canonical courts' author- punishment is also generally approved, with
ity over cases involving wills, usury, and tithes people in 89 percent of the 53 cultures expect-
removed from them. In 1245, a second move- ing it to be used for certain crimes or approving
ment to have canonical authority reduced was of its use. In only two of the cultures where it
met by Pope Innocent IV excommunicating the occurs do people generally disapprove of its use.
offenders. Although capital punishment is used or is per-
Though Roman Catholic Canon Law is to- mitted in nearly all societies, there is consider-
day far less powerful in the world outside the able variation across cultures in the crimes it is
church, it did originate a law that still catches used for, who does the killing, how the criminal
the attention of people today, Catholic and non- is executed, and the purpose people believe it
Catholic alike. This is the law of asylum or sanc- serves. Whether or not capital punishment is an
tuary, ius asyliy which provides that any person effective deterrent to further crime is unclear,
inside a church building cannot be arrested. At although there is evidence that among the na-
some points in history, right of asylum extended tions of the world, capital punishment does not
far beyond the church's walls and into the sur- reduce the frequency of crime.
rounding towns. When the United States mili- The offenses most often punished by capi-
tary sought Manuel Noriega in Panama, he was tal punishment (those so punished in over 50
protected for several days by church sanctuary. percent of cultures) are homicide, stealing, sac-
rilege such as witchcraft, and offenses that
See also Patria Potestas; PERSONALITY PRINCIPLE
threaten the social order, such as rape, adul-
OF LAW.
tery, and incest. Traitors are subject to capital
punishment in 27 percent of societies while
other offenses such as desertion in war, political
Poulet, Dom Charles. (1950) A History of the assassination, arson, and kidnapping are cause
Catholic Church. Vol. I. Translated by Sidney for execution in only a few cultures. In most cul-
A. Raemers. tures, the crimes punished by execution are those
that are most threatening to the society and the
well-being of the people, although cultures vary
in what is meant by "most threatening" and
"well-being." Most executions are carried out in
public, but in some cultures they are private or
even secret, with the criminal simply disappear-
From a cross-cultural ing, never to be seen again.
CAPITAL perspective, capital pun- While not much is known about people's
PUNISHMENT ishment is "the appro- motivation for approving of capital punishment
priate killing of a person or for expecting it to be used, one reason com-
who has committed a crime within a political monly given by people in different societies is to
community" (Otterbein 1986). Capital punish- remove an offender so that he can't commit the
ment refers, literally, to the punishment of re- crime again. Other reasons are for revenge, to
moval of the head and, by extension, to the loss show the power of the king, and to wipe out an
of life by any means.Capital punishment is a near insult as well as various combinations of these.
cultural universal, as one survey shows that it is Cross-cultural research indicates that the
used in 51 of the 53 cultures surveyed. Capital reason a society uses capital punishment is some-

28
 CAPITAL PUNISHMENT

Witchcraft, considered a crime in some societies at some times, led to perhaps 100,000 to 200,000 executions, such as
this burning, from the late Middle Ages to the eighteenth century.

what more complex than the reasons given by the survival of the group is threatened. In larger
members of the society. Evidently, different types societies, capital punishment is used selectively
of societies have different underlying reasons to punish crimes depending on whether or not
for killing those who commit serious offenses. kin groups or councils are present and have the
In small hunter/gatherer societies, capital pun- authority to punish crimes. Finally, societies with
ishment is used to remove those who commit centralized political leadership vested in a chief
crimes so serious, or whose behavior is so dis- or king use capital punishment as a social
ruptive to others or the group as a whole, that control mechanism to publicly demonstrate

29
CHARTER MYTH

and thereby reinforce the power of the chief or the morning, only the youngest boy had a full
king. milk bowl.
God saw that the choices the boys had made
See also CRIME; FEUD.
and the way that they handled their milk dem-
onstrated their natures. The eldest boy chose the
kind of goods that were the goods of peasants
Otterbein, Keith F. (1986) The Ultimate Coer- and royal servants. That he also spilt all of his
cive Sanction: A Cross-Cultural Study of Capi- milk demonstrated his inability to tend cattle.
tal Punishment. Thus, his descendants are destined to be ser-
vants and peasants. The youngest boy's choice
of an ox head, as well as his full bowl of milk,
determined that he and his descendants are roy-
alty and rulers of all other people. The middle
boy's choice of a leather thong, a herder's tool,
The charter myth is a and his gift of milk to the youngest boy, the roy-
CHARTER MYTH myth that many societ- alty, demonstrate that he and his descendants
ies use to explain the ex- are, by their nature, herders.
istence of, as well as the social, societal, and po- The Bunyoro charter myth explains why,
litical structures of their society. The idea of the according to the will of God, members of some
charter myth was first identified by anthropolo- Bunyoro lineages are destined always to be herd-
gist Bronislaw Malinowski. ers, members of other lineages to be peasants
For example, in the Bunyoro society, in Af- and servants, and members of still other lineages
rica, there is a myth to explain why some of the to be royalty.
Bunyoro are born royalty, why some are born
cattle herders, and why other Bunyoro are born
peasants and servants of royalty, according to Lienhardt, Godfrey. (1964) Social Anthropology.
which lineages they belong.
The myth is as follows. The first human
family on earth (Bunyoro, of course) had three
sons who had no names. The parents asked God
to name them. God decided to do so after giv-
ing the boys a test. He set before them a group A chief is a formal po-
of objects and asked the boys to pick which ones CHIKF litical leader and author-
they wanted. He also gave each of them a bowl ity in a small society,
of milk and told them to hold the bowl all night who usually leads and has authority over more
without spilling any milk. The oldest boy chose than one group. The society governed in this way
some food, a ring for carrying loads on one's is known as a chiefdom.
head, an ax, and a knife. The youngest boy chose The chief is foremost a formal leader and
an ox's head. The middle boy chose a leather authority. He or she occupies an office and the
thong. During the night, the oldest boy spilt all officer's rights and duties are defined by law; in
of his milk. The youngest boy spilt a small por- some societies they are even written down. The
tion of his milk, and the middle boy spilt none chief's power and authority derive not from his
of his milk, but gave his younger brother enough or her own personal qualities but from the of-
of the milk from his bowl to fill it up. Thus, in fice he or she holds. Furthermore, a formal au-

30
 CHIEF

thority has a formal assumption and declination was located, fix the details of the hunt. The
of power in association with the assumption or Council of Forty-Four then chose the particular
declination of office. military society that would oversee the logistics
The institution of the chief is well described and maneuvers required by the hunt. The Coun-
for the Cheyenne. According to Cheyenne leg- cil of Forty-Four also chose in a like manner the
end, the institution of chiefship and the num- military society that would direct the tribe's
ber of chiefs within the tribe (forty-four) had moves to other territories.
their beginnings in the world of the supernatu- The chiefs' actions were not only of a secu-
ral. The chiefs' offices were created by a young lar nature. Many of their responsibilities involved
girl who had supernatural abilities and who ritual or ceremony.This maybe seen even in their
came to save the Cheyenne people when they preparations for a hunt. The chiefs, before mak-
were near starvation. She ordered that forty-four ing a decision to hunt, would sometimes call for
chiefs offices be created, that the term of office the services of a spiritual medium. The medium
be ten years, and that five of the old chiefs be would then contact the appropriate spirits for
kept in office for the next term of office. She guidance concerning the proposed hunt. The
further ordered that the chiefs swear an oath to spirits would then indicate if the hunt should
be honest and to take care of the tribe, and, fi- take place and, if so, in what fashion. Failure to
nally, she had them smoke the pipe so that they heed the directions of the spirits would bring
would never become angry, no matter what any- disaster, they believed.
one said or did to them. The religious functions of the chiefs were
The functions of the Cheyenne chiefs were one of its major sources of power, if not the main
civil rather than military. The chiefs made the one. Following a murder within the tribe, the
major strategic decisions as to the tribe's general chiefs were more concerned with the supernatu-
future and destiny. They would decide when and ral pollution of the sacred center of the tribe,
where the tribe was to move. They would de- the Sacred Arrows, than with the secular pun-
cide whether or not to go to war (although the ishment of the murderer. Further, they usually
execution of the military raids themselves was had nothing to do with the creation of new laws
left in the hands of the military societies). They by the military societies.
would decide on the disposition of murder cases. Among the forty-four chiefs were five sanc-
Other matters of a more mundane sort were left tified priests who acted as the head chiefs. One
to the military societies. of these kept and used the forty-four chiefs'
During the warm months, the forty-four medicine bundle (fetish bag) and presided over
chiefs acted together and in concert as the Coun- the council meetings of the chiefs. The medi-
cil of Forty-Four. When the tribe split up into cine in the bundle, called the Sweet Medicine,
nomadic bands during the cold months to find is a spiritual center of the Cheyenne people, and
food, each band was led individually by one of the spiritual center of the Council of Forty-Four.
the forty-four chiefs. The Cheyenne spent their The chief who carried it had no political power,
winters living in small bands because the bison, but instead was considered to be associated with
their main source of food, was dispersed; had the supernatural center of the world. The re-
the whole tribe attempted to live as a single group maining priest-chiefs were associated with other
in the winter, they would have starved. spirits and supernatural powers; these included
The chiefs also determined the location and shamanic powers or spirits such as the Spirit
timing of tribal communal hunts. They would Who Rules the Summer. Below these men in
send out scouts to look for game, and when it formal rank were two Servants, who acted as

31
CHIEF

doormen. Finally, below these in rank were the would agree to peace, and the chiefs thanked
remaining thirty-seven ordinary chiefs, who had them for their recommendation. Then the chiefs
no special or distinguishing rank other than the concluded the peace. In this way, the Cheyenne
fact that they were chiefs. On the bottom rank were able to secure the compliance of the mili-
of chiefs was always a non-Cheyenne Indian, tary societies by allowing them to save face, and
usually a Dakota (one of the peoples known col- this prevented Cheyenne society from splitting
lectively as the Sioux). This was probably so that over the issue. This solution also demonstrated
the Cheyenne and the Dakota could always that the military societies took strong heed of
maintain a formal political alliance. the chiefs' words, even when they were not to
The Council of Forty-Four shared its power their liking.
with the military societies. The chiefs were older After the ten-year terms of office for the
men who were for the most part past their physi- forty-four chiefs were completed, the council
cal prime. They made the great decisions, but it called for a "chief-renewal" ceremony to take
was the mostly younger men of the various mili- place the following spring when the entire tribe
tary societies who implemented them. Thus, the was together. At the chief-renewal ceremony,
chiefs could not give orders that the military each retiring chief had the privilege of selecting
societies strongly opposed. An example of the his own successor to his office; it was possible,
political relationship between the chiefs and the but considered unseemly, to choose one s own
military societies can be seen in the efforts of son. Each priest-chief selected his replacement
the chiefs to bring the Cheyenne into peaceful from among the bottom rank of chiefs. If he
relations with the Kiowa and Comanche Indian wished, and was still capable of performing his
tribes. The Cheyenne had long been at war with duties, a retiring priest-chief could take up an
the two tribes, but this was not the major ob- office in the bottom rank of chiefs, taking one
stacle to peace. The main problem lay in the fact of the offices being vacated. After the new chiefs
that the young men's favorite activity and most took office, they gave their predecessors gifts of
important means of building personal prestige an established and unvarying value, just as the
was raiding the enemy for horses and to kill en- previous set of chiefs had given gifts to their own
emy warriors. The interests of the chiefs and of predecessors. The chief-renewal ceremony was
Cheyenne society as a whole lay in peace, since in fact a time of general gift-giving generosity,
fighting with the enemy cost the Cheyenne the and it was generally considered desirable behav-
lives of its people. The interests of the young ior for the wealthy to give to the poor.
men who made up the military society was to The chiefs were always men, although they
continue raiding to be able to build up personal listened to what women had to say and took their
notoriety. The Cheyenne chiefs resolved the words into consideration when making deci-
problem by establishing that they favored peace, sions. The chiefs were always important men
but then asked one of the military societies, the from prominent families, and so were already
Dog Soldiers, for its recommendation. The Dog powerful before becoming chiefs. A chief had
Soldiers noted that the chiefs wanted peace, and to control his temper. He also had to be very
then asked the two most militant warriors in its generous and give his followers whatever they
number for their recommendation. The two asked for from his own personal wealth. Finally,
warriors favored peace, and the rest of the Dog Cheyenne chiefs could not lose their office until
Soldiers voted to agree with them. The Dog the chief-renewal, no matter what they did, even
Soldiers then reported to the chiefs that they if it was to kill another Cheyenne.

32
 CITIZENSHIP

use to end these hostilities and to ensure the

Llewellyn, Karl N., and E. Adamson Hoebel. safety of the people of a particular society. To be
(1961 [1941]) The Cheyenne Way. fully a citizen of a particular society is to be cov-
ered by one of these pacts, and in fact that is the
manner in which the Kalinga state their citizen-
ship. The pact protects the members of the so-
cieties making the pact by forcing the pact holder,
in order to save the pact, to kill a citizen of his
Citizenship is the legally own society if a citizen of his society has killed a
ClTI/FA'SHIP recognized membership citizen of the other society; otherwise, the out-
in a society. Citizenship come would be war and many could die.
status carries with it legal rights and duties. For When a person moves from one society to
example, citizens of the United States have the another, he or she usually wishes to change citi-
right to vote for their leaders upon reaching the zenship to the new society so as to acquire the
age of eighteen, and male citizens of a certain society's peace pact protection. To become a
range of ages have the duty to fight to protect naturalized citizen, it is necessary to pay a fee to
the United States during wartime. the pact holders. If a man of society A wishes to
In every society, there are also laws regulat- become a citizen of society B, he pays the mem-
ing who is a citizen and who is not. Among the ber of society B who holds the pact with society
Kalingas of Luzon, the Philippines, citizenship A. Half of the payment is kept by this pact
is determined by residence and by a blood rela- holder, and the other half is sent to the member
tionship to other members of the society. Each of society A who holds the pact with society B.
Kalinga society is separate and has its own group Both pact holders make public announcements
of citizens. The Kalinga are largely endogamous, in their own societies concerning the change in
meaning that the Kalinga individual is likely to citizenship. People who are considered poten-
marry within his/her own society, and so the citi- tial troublemakers are not accepted by the pact
zenship requirements of blood ties and residence holder of the society of which they are trying to
usually coincide. become a citizen.
On the other hand, blood alone can deter- If a man, N, a citizen of society A, becomes
mine citizenship and can lead to a Kalinga per- a naturalized citizen of society B, then his rights,
son having dual citizenship. If a man with duties, and privileges change. Should N return
citizenship in society A marries a woman with to society A for a visit, he cannot be the victim
citizenship in society B, and they live in society of revenge in a feud between his kin and the kin
C, then their children will have citizenship in of someone killed by his kin; the peace pact be-
both societies A and B, by virtue of their par- tween societies A and B saves N as a citizen of
ents' citizenship. society B. However, if a citizen of society B wants
However, there is yet another dimension to to take revenge against N's family, he can then
Kalinga citizenship. Kalinga societies are often kill N without endangering the pact, since as a
at or near war with each other. Sometimes, also, citizen of society B, N has no protection under
someone from one society murders a person from the pact.
another neighboring society, and then there can If N moves to society B while remaining a
be hostilities between the two societies. The citizen of society A, he has the protection of the
Kalinga have developed peace pacts, which they pact holder. No one in society B will kill N for

33
CITIZENSHIP

Citizenship, the legally recognized membership in a society, is attained by qualifications such as birth and residence.
Upwards of 10,000 non-native-born men and women pledge allegiance to the United States of America at a
ceremony in Miami in 1984.

fear that the pact holder will kill the killer in who will be "good" citizens. In others, such as
order to save the pact. Further, N can help kill Japan, considerations of marriage, adoption, and
on behalf of his relatives in any society but B, racial purity are also important.
and then escape to society B. If N remained in
society A, he could be the target of revenge, but Draft of the Law Concerning Nationality
in society B he is protected. If N wishes to kill a
1. A child is a Japanese subject, if at the time
person in society C, with which society A has of his birth his father is such. The same ap-
no peace pact, but with which society B does, N plies, if the father, having died before the
can travel with some members of society B to child's birth, was a Japanese subject at the time
society C in safety, commit murder, and escape of his death.
to either society A or society B with impunity.
2. If the father before the birth of the child
The following is the section of the Civil
loses his Japanese nationality by divorce or by
Code of Japan from 1896 concerning citizen- a dissolution of adoption, the provisions of the
ship. As with all nations, the law reflects the preceding article apply with relation back to
importance attached to the question of who may the beginning of the pregnancy.
become a citizen. In some cultures, the primary The provisions of the foregoing paragraph
consideration is affording citizenship to those do not apply, if both parents quit the house,

34
 CITIZENSHIP

unless the mother returns to the house before lose his nationality on acquiring Japa-
the birth of the child. nese nationality.

3. When the father is unknown or has no na- 8. A wife of an alien can be naturalized only
tionality, the child is a Japanese subject, if the together with her husband.
mother is such. 9. An alien who has at the time his domicile
4. If both parents of the child born in Japan in Japan can be naturalized, even though the
are unknown or have no nationality, the child conditions specified in Art. 7, No. 1 do not
is a Japanese subject. exist, in the following cases:
1. If one of his parents is or has been a
5. An alien acquires Japanese nationality in the Japanese subject;
following cases: 2. If his wife is or has been a Japanese
1. By becoming the wife of a Japanese; subject;
2. By becoming the husband of a Japa- 3. If he was born in Japan;
nese woman who is the head of a 4. If he has resided in Japan for ten con-
house, at the same time entering her secutive years.
house; The persons mentioned in the preceding
3. By being acknowledged by his father paragraph under Nos. 1-3 can be naturalized
or mother who is a Japanese subject;
only if they have resided in Japan for three con-
4. By adoption by a Japanese subject;
secutive years; but this does not apply, if a par-
5. By naturalization.
ent of a person mentioned in No. 3 was born
in Japan.
6. The requisites for an aliens acquiring Japa-
nese nationality by acknowledgment are as 10. If a parent of an alien is a Japanese subject
follows: and such alien has his domicile at the time in
1. The child must be a minor according Japan, he may be naturalized, even though the
to the law of his nationality; conditions specified in Art. 7, nos. 1, 2 and 4
2. The child must not be the wife of an do not exist.
alien;
11. The Minister of the Home Department
3. The parent who first acknowledges the
may with the sanction of the Emperor permit
child must be a Japanese subject;
the naturalization of an alien who has done
4. If both parents acknowledge the child
at the same time, the father must be a specially meritorious services to Japan, with-
out regard to the provisions to Art. 7.
Japanese subject.
12. Public notice of a naturalization must be
7. With the permission of the Minister of the
given. A naturalization can be set up against a
Home Department an alien may be natural- third person acting in good faith only after
ized on the following conditions:
such notice.
1. He must have had his domicile in Ja-
pan for five consecutive years; 13. The wife of a person who acquires Japa-
2. He must be at least twenty years old nese nationality acquires it together with her
and a person of full capacity by the law husband, unless she expresses a contrary in-
of his nationality; tention within one month from the time when
3. He must be a person of honest behavior; she had notice of her husband's acquisition of
4. He must have either property or work- Japanese nationality.
ing ability sufficient for an indepen- These provisions do not apply, if the
dent livelihood; law of the wife's nationality provides to the
5. He must have no nationality or must contrary.

35
CITIZENSHIP

14. If the wife of a person who has acquired acquired Japanese nationality loses it on divorce
Japanese nationality did not herself acquire it or the dissolution of the adoption only in case
according to the provisions of the preceding he thereby acquires a foreign nationality.
article, she may be naturalized even though
20. A person who voluntarily acquires a for-
the conditions specified in Art. 7 do not exist
eign nationality loses thereby his Japanese
as to her.
nationality.
15. A child of a person who acquires Japanese
21. The wife or child of a person who loses his
nationality acquires it together with the par-
Japanese nationality, loses the Japanese na-
ent, if the child is a minor according to the
tionality on acquiring the nationality of such
law of his nationality.
person.
This provision does not apply, if the law of
the child's nationality provides to the contrary. 22. The provisions of the preceding article do
not apply to the wife or child of a person who
16. A person naturalized, a person who as be-
loses his Japanese nationality by divorce or the
ing the child of a naturalized person has ac-
dissolution of adoption, unless the wife in case
quired Japanese nationality, or a person who
of the dissolution of adoption of her husband
has become the adopted child of a Japanese or
does not procure a divorce, or the child quits
the husband of a Japanese woman who is the
the housing following his father.
head of the house has not the following
rights: 23. If a child who is a Japanese subject ac-
1. The right to become a Minister of quires by acknowledgment a foreign nation-
State, a Minister of the Imperial ality, he loses his Japanese nationality; but this
Household or Keeper of the Privy Seal; does not apply to a person who has become
2. The right to become president, vice- the wife of a Japanese subject, the husband of
president or a member of the Privy a Japanese woman being the head of the house,
Council; or the adopted child of a Japanese subject.
3. The right to hold the position of a gen-
24. Notwithstanding the provisions of the pre-
eral or admiral;
ceding five articles, a male person of the age
4. The right to become president of the
of seventeen years or upwards loses his Japa-
Supreme court, of the Board of Ac-
nese nationality only if he has already per-
counts or of the Administrative Liti-
formed his service in the army or navy or is
gation Court;
not bound to perform such service.
5. The right to hold the position of Court
Councillor; 25. A person who holds a civil or military po-
6. The right to be elected as or to vote sition can lose his Japanese nationality only
for a member of the Imperial Diet. on obtaining the permission of his official
chief.
17. The Minister of the Home Department
A person who has lost Japanese national-
with the sanction of the Emperor may except
ity by marriage, but after the dissolution of
from the restrictions of the preceding article a
such marriage has a domicile in Japan may by
person who has been naturalized under the
the permission of the Minister of the Home
provision of Art. 11, after five years from the
Department recover Japanese nationality.
time when he acquired Japanese nationality,
or any other person after ten years. 26. If a person who has lost Japanese nation-
ality according to the provisions of Arts. 20 or
18. A Japanese woman who marries an alien
21 has a domicile in Japan, he may with the
loses thereby her nationality.
permission of the Minister of the Home De-
19. A person who by marriage or adoption has partment recover Japanese nationality; but this

36
 CIVILIZATION

does not apply to a person mentioned in Art.

16, who has lost the Japanese nationality.
27. The provisions of Arts. 13-15 apply cor-
respondingly to the cases mentioned in the
preceding two articles.
28. The time when this law shall take effect
shall be determined by Imperial Order.

Barton, Roy F. (1973 [1949]) The Kalingas: Their

Institutions and Custom Law.
The Civil Code of Japan. (1896)

Civil law deals with le-

CIVIL LAW gal offenses between pri-
vate parties. It differs
from criminal law in that criminal law deals with Justinian I (483-565) ruled the Byzantine Empire
legal offenses against the society as a whole. The from his capital in Constantinople and had Roman
body of a civil offense (a private wrong) is known statutes compiled into the Codex constitutionum.
as a tort. A good example of the difference be-
tween the two is the legal actions that various
parties may take after a homicide has been com- Civil law has another meaning as well. It
mitted. After a homicide, the society may de- refers to the legal systems that have developed
cide that a crime has been committed and try out of the Roman legal system (Justinian Code),
the alleged killer on murder or manslaughter mainly the legal systems of continental Europe
charges. Whether the alleged killer is convicted (such as the French, Austrian, Spanish, etc.) as
of a crime or not, the family of the victim may well as the legal systems of South American na-
bring legal charges against the alleged killer in tions and of the state of Louisiana in the United
civil court. The family can sue the killer to re- States. When civil law is used in this meaning,
cover monetary awards for the love and affec- it is often to contrast it with common law, the
tion lost when the victim died, as well as for the legal system that developed in England and is
services he or she would have performed in the the foundation of the United States, Canadian,
future and whatever monetary earnings the vic- New Zealand, and Australian legal systems.
tim would have earned in his or her lifetime. In
See also COMMON LAW.
instances in which someone other than the killer
is also responsible for a death, they can be sued
as well. An example of this is cases in which a
prisoner is killed by another inmate. The prison
system, which is responsible for prisoner safety, The term civilization,
has been sued by the families of inmates killed ClVILl/ATlON from the Latin civis
in prison for monetary awards. (citizen), has different

37
CLASS

meanings for different social scientists. For many, ties or characteristics. A class may be based upon
the term is synonymous with the word "state." any quality or characteristic one wishes to name,
For others, the term signifies a special complex including age, sex, height, skin color, last name,
of cultural traits and social features. Perhaps the or favorite foods. The kind of class social schol-
best-known definition of civilization is that pro- ars refer to most often is economic class, in which
vided by the archaeologist V. Gordon Childe. people are classified into categories on the basis
He listed a set of attributes that if found together of their wealth or their annual financial income.
in a society meant that it had undergone an "ur- Wealth is considered the most important basis
ban revolution" and is or was a civilization: of social position within any society, according
1. Urban centers of at least 7,000 people each. to many social scholars, and so the classes to
which people belong are assumed to be the great-
2. A surplus of food produced by peasants,
est factor in social stratification. The classes are
which is used to feed the governmental ad-
conceptualized as running from low to high on
ministrators.
a vertical scale, the lower classes being the poorer
3. Monumental public buildings. ones and the higher classes being the wealthier
4. A ruling class of priests and military and ones. In addition, economic classes are consid-
civilian leaders and officials ered to be markers of social class, in that mem-
5. The use of numerals and writing. bers of a class act in fashions characteristic to
6. The knowledge and use of arithmetic, ge- their class and exhibit beliefs and attitudes that
ometry, and astronomy. are also characteristic of that portion of a soci-
ety whose wealth falls at a certain point on a
7. Sophisticated artistry. scale of wealth. Economic classes are found pri-
8. Long-distance trade. marily in state societies, since in band and tribal
9. An institutionalized political organization societies wealth and power depends primarily on
that rules by the use of force, which is the personal, family, or other group qualifications
"state," according to Childe. rather than class associations. Because economic
classes are also related to matters of political
power, prestige, and access to resources, they are
See also STATE.
social classes as well as strictly economic classes;
they are often referred to as socioeconomic
classes.
Childe, V. Gordon. (1950) "The Urban Revo- Classes are considered by many scholars to
lution." Town Planning Review 21(1): 3-17. have some of the properties of a group. They
are, for one thing, considered to have relatively
Service, Elman R. (1975) Origins of the State and
stable membership over time. That is, people do
Civilization: The Process of Cultural Evolution.
not change class affiliation often, since they usu-
ally stay with one type of employment over their
lifetime, and this type of employment usually
pays them an income that is approximately the
same relative to other sources of income over
A class is a culturally time. Class membership is also considered to be
CLASS defined category of largely stable in that children whose parents be-
people who possess a long to a certain class also are likely to remain in
certain quality or characteristic or set of quali- that class as they grow older. A social and eco-

38
 CLASS

nomic system in which it is easy to move from to reach elective office unless they work for the
one class to another is said to be open, or it may interests of at least some wealthy supporters.
be said that there is a lot of class mobility in that The idea of class as a useful concept in the
society. explanation of human societies was first cham-
Caste systems are systems of social class in pioned by Karl Marx and Friedrich Engels and
which there is no class mobility and in which elaborated on later by Vladimir Lenin. For Marx,
the class is like a group in that it is endogamous Engels, and Lenin, classes were important be-
(that is, members of the group or caste are re- cause the people who were affiliated with each
quired to marry other members of the group or class could be expected to behave in a certain
caste). In India, each caste is associated with a way because their economic interests were the
certain job or range of jobs in any particular geo- same as other people of the class. Thus, Marx
graphic area, so social class frequently determines showed how people who ran the industries of
or strongly affects the economic wealth of the nineteenth-century Great Britain and Germany
members of the caste. Also, Indian castes tradi- had a common interest in getting cheap labor to
tionally were endogamous. work in their factories so that they themselves
Those who conceive of classes as grouplike could become wealthier faster. The industrial
structures usually also accept the grading of them ownership class, further, was able to influence
along a vertical range from low to high. Thus, laws and legislation so that the factory and mine
classes are conceived of as vertical layers in a so- workers had little or no physical or health pro-
ciety, in that higher classes are thought of as tections, which have cost the owners of the fac-
being above lower classes; this is what is meant tories and mines money.
by the commonly used phrase "social stratifica- Marx, Engels, and Lenin wrote to convince
tion." However, classes are not groups. Social people who work for employers and for the low-
groups by definition have functions, reasons for est wages that they belonged to a class (the
being in existence, whereas classes never do. working class or, as Marx liked to call it, the
Another feature of economic classes is that proletariat), and that their interests, as a class,
those associated with various classes have, on the were in taking ownership of the factories, fields,
whole, different degrees of access to material re- mines, and other sources of wealth away from
sources and political power. Those belonging to the owners and for themselves. The three men
the lower classes generally have less influence never achieved to their satisfaction an awareness
on their society's political situation and political of class, what they called class consciousness,
future than do people who are associated with among the workers of the world.
the higher classes. This can be seen in the na- In recent decades, the interests of political
tional politics of the United States, in which anthropologists (as well as sociologists and many
candidates need the support of the wealthy be- political scientists) have largely focused on classes
fore they can afford to mount a campaign that of various types, almost to the exclusion of stud-
has any chance of success. The candidate who ies of groups and individuals, which were the
wins an election is expected to remember the traditional units of study of political anthropol-
interests of those who financed his or her cam- ogy. This interest in categories of people by sta-
paign when various legislation affecting those tus or some other attribute has branched out
interests appears before the legislature. Some- from studies of economic categories to catego-
times, wealthy candidates for office are able to ries of people by ethnicity, race, sex, geographic
finance, or largely finance, their own campaigns. location, and native language as well as other
Those who are poor have a relatively small chance qualities.

39
CLASS

Vladimir Ilich Lenin, authorofThe State and Revolution (1917) and leader of the Soviet state,
in Moscow, 25 May 1919

The concept of class is usefil to explain how benefit primarily the wealthy, many of whom
certain categories of people are affected by the make a lot of money through capital investments.
actions of others. For example, changes in the Other classes of people, in the United States and
tax laws that reduce the tax rate for capital gains elsewhere, including blacks, American Indians,
would benefit people of all classes, but would Spanish-speakmg peoples, and women, have not

40
 COLLECTIVE LIABILITY

always received equal protection under the law Tyler, Stephen A. (1973) India: An Anthropo-
and have been the victims of other forms of nega- logical Perspective.
tive discrimination. Weber, Max. (1947) The Theory of Social and
While classes of people thus receive the ef- Economic Organization.
fects of the actions of others, they do not them-
selves take action. Only individuals and groups
take action. A group maybe composed of people
who are classed together according to some crite-
rion (wealth, age, race, etc.), but it is a group The idea of collective li-
that exists separately from the class; rarely if ever COLLIXTIVL ability is that an entire
do all the members of a class work together to LIABILITY group is legally respon-
do anything. Also, people frequently advocate sible for the actions of
and work toward political changes that appear any of its members. This idea is all but unknown
to hurt the interests of themselves and of others in our own society, but is common in some parts
of their own class, in the belief that they are of the world, and was indeed characteristic of
working to improve society overall. Thus, in the some earlier European societies.
United States we have wealthy industrialists who It may seem odd that a group is responsible
have supported legislative changes designed to for the actions of one person. It may even seem
shift wealth from the rich to the poor, and thus unjust. After all, why should I have to pay com-
reduced their own wealth. Also, in the belief that pensation to the family of a man murdered by
people should get only what they themselves my second cousin? Or, even worse, why should
earn, and all that they themselves earn, there are I be at risk of losing my own life in retaliation
poor working people who support laissez-faire for the death of a person killed by my second
economic policies, policies that often mean that cousin?
the poor are poorer than they would be with The idea of collective liability makes a great
governmental financial assistance paid by taxes deal of sense in societies in which one's welfare
on the wealthy. There are industrial workers who is insured by one's group. In our society, we de-
likewise oppose unions, even though their rep- pend upon the government or private insurance
resentation by a union would likely mean that companies to help us when we cannot take care
they would be paid a higher wage. In other of ourselves. In many societies, the government
words, people who are affiliated with a class ac- cannot do this, and there are no such things as
cording to whatever criteria may be chosen do insurance companies. If a plague hits, if one's
not always perceive their interests to be the same crops are ruined by insects, or if a drought forces
of other people of that class. For this reason, all the game away, one must turn to other mem-
classes do not take political action, although a bers of the group to acquire food, shelter, and
number of people of a certain class may indi- clothing. In most such societies, the group to
vidually or in groups take action. which one turns is a descent group, such as a patri-
lineage or matrilineage. In other societies, it is
often the kindred, the quasi group, that is made
Lenin, Vladimir I. (1976 [1917]) The State and up of one's kin on both the father's and mother's
Revolution. side. Naturally, if one depends on these groups
Marx, Karl, and Friedrich Engels. (1968) Karl and quasi groups for insurance, one wishes to
Marx and Friedrich Engels: Selected Works in see them prosper, for they cannot help if they
One Volume. themselves fall on hard times. For this reason, a

41
COMMON LAW

murder of one of the group's members cannot

be allowed, because it removes a productive per- Gluckman, Max. (197r4) African Traditional Law
son from the ranks of those who might help you. in Historical Perspective.
Thus, it is in the group s or quasi group s inter-
est to seek a payment from the group of the killer
to replace the value of the work that would have
been done by the murdered person. Among the
Anglo-Saxon people, the ancestors of the mod-
ern-day English, this compensation payment was Common law refers to
known as wergild or, literally, "man-payment." COMMON LAW the legal system of En-
The entire group to which the murderer be- gland, which was
longed would have to pay the compensation pay- brought to many parts of the British Empire and
ment, because usually the murderer did not have now forms the basis of the legal systems of the
enough wealth to pay the compensation payment United States (and all of the state legal systems
himself. If the murderer's group refused to pay with the exception of Louisiana), Canada, New
the compensation payment, or if it could not Zealand, Australia, and Hong Kong. It is often
provide an amount acceptable to the murdered contrasted with civil law, which had its origins
man's group, then the murdered man's group in Roman law, and which forms the basis of
would be considered justified in taking revenge legal systems in continental Europe, South
by killing a member of the murderer's group. America, and Louisiana.
Sometimes, in retaliation for this second kill- Common law differs from civil law in that
ing, members of the murderer s group, especially legal authorities in the former system depend
if they felt the first killing justified, would take more upon previous judicial precedents (as op-
revenge for the killing of a member of their own posed to legislation) than do legal authorities in
group, and thus a blood feud would start. civil law systems. Of course, many of the prece-
The threat of losing a member of one's own dents set by judges in common law systems do
group in a retaliation killing was usually enough end up being passed as legislation. Thus, the
to prevent most people from killing in the first difference between the two is now a matter of
place. This system worked well in another way. degree in this respect.
If a man killed another, his own group would Of course, the actual laws used by the two
have to pay compensation. The members of his systems differ significantly. One of the major
group would usually be very unhappy because differences is that in civil law systems women
of this, and would let the murderer know of their who divorce are entitled as a matter of basic right
unhappiness. Sometimes, the group would be to half of the assets of the married couple. On
so angry with the murderer that it would banish the other hand, common law systems have for
him from their area or cause him some other centuries been adopting legal principles from
punishment as a consequence. In this way then, civil law systems when they saw them as just.
the method of collective liability worked to keep The example of equal division of marital assets
people from killing one another, especially in the is becoming common across the United States,
absence of a legal system with authority over a for example. Another example is the old Ro-
large number of people. man legal principle of dividing the estate of an
individual who dies intestate (without a will) per
See also CORPORATION. stirpesy a practice that common law adopted long

42
 COMPARATIVE LAW

ago. When a person dies without a will, his or domestic court well, and so maybe incorporated
her estate is divided among his offspring (as- into the domestic court's decision.
suming that there is no living spouse) equally. A good example of the applied use of the
For example, a man has two sons, one of whom comparative method is found in the case of
had two sons of his own prior to dying. Thus, Greenspan v. Slate, decided by the Supreme
an equal division would result in one half of the Court of New Jersey in 1953 (see Schlesinger,
estate going to the living son, and one half of 1980: 2-5). In this case, the teenaged daughter
the estate going to the two grandsons, among of the defendants injured her leg playing bas-
whom that half would be equally divided. The ketball. Her parents believed that the only in-
estate would not, for example, be divided into jury she had was a sprain, and for this reason
thirds. gave her no medical treatment. A third party
saw her condition and took her to a doctor. The
See also ClVIL LAW.
doctor took X-rays of her leg and discovered that
her leg was fractured. The doctor's professional
opinion was that she needed to be treated im-
mediately or risk permanent injury, and so gave
her a cast and a pair of crutches on the spot. The
Comparative law refers doctor then asked the parents for a fee of $45,
COMPARATIVE to a method of studying which they refused to pay. The doctor, Green-
LAW law in which legal sys- span, sued to recover the fee. The defendant
tems are compared with parents relied upon the fact that they had not
one another. One may compare large numbers entered into a contract with the doctor, and thus
of entire legal systems with each other, one may could not be forced to pay for services they had
restrict one's study to one aspect of two legal not requested. The question that the court had
systems, or one may make a study of any inter- to answer is whether or not the parents are le-
mediate scope. A single legal system may also gally responsible for taking care of their chil-
be compared with itself at an earlier date, in or- dren in emergency situations. Under the general
der to understand the changes the system has principles of American law specifically, and com-
undergone. The different types of comparative mon law (law of British origin, including U.S.
legal studies differ not primarily with size and law) generally, the obligation of parents to care
scope, but with the goals of the researcher. The for their children is considered a moral rather
practicing attorney or judge, for example, might than a legal one. However, since there were no
be primarily interested in learning about foreign good actual legal precedents on this question in
legal systems, or even about specific points of U.S. law, the court was able to look to other le-
law in foreign legal systems, in order to better gal systems for an answer. The court in this case
solve a case at hand; this would be an example decided to look at the so-called civil legal sys-
of applied comparative law. It is often the case tems (the legal systems of continental Europe
that a foreign legal authority has come across a that grew out of Roman law). Under the laws of
dispute or legal question that has never before France, Germany, Italy, Austria, and Switzer-
been seen in a domestic court, or the foreign le- land, parents are required by law to support their
gal authority may have come up with a particu- children until they can support themselves. The
larly clever or just answer, or clever or just reason court applied this principle to the case at hand
for giving a particular answer, that will serve a in New Jersey and ruled in favor of the doctor to

43
COMPARATIVE LAW

collect the $45 he asked for his fee to treat the party and awards him $500,000 for pain and
girl's leg. suffering, medical expenses, and lost wages. The
Studies of comparative law are often strongly court also decides to award him another $1 mil-
philosophical in character. This is because when lion for punitive damages, so as to give the manu-
legal systems are compared, their differences facturer a warning not to continue its shoddy
show up not merely as different legal principles, manufacturing practices. If the German manu-
but also as the reasons and justifications for the facturer goes to a German court to protest this
differences in those principles. For example, take award, it is highly likely that the court there
the case above. The difference in legal principles would reduce it substantially. In 1991, German
revealed was that in the United States, at the courts were allowing at most twice the size of
time of the decision, the ability of legal parties comparable German judgments to be sustained
to make or not to make contracts was superior against German corporations by U.S. courts. The
to the right of children to be supported by their highest award for physical injuries in German
parents. The civil law systems of continental courts are 350,000 deutsche marks for paraple-
Europe saw the right of children to the support gia of young people, whereas U.S. courts not in-
of their parents to be of great importance. The frequently award millions of dollars for any severe
authority in the case determined, in a precedent- injuries that will affect a person for a very long
setting decision, that the power of people to time to come. The reason for the much lower
make contracts was less important than the right German awards is that the German legal sys-
of children to receive the support of one's par- tem stringently separates civil law from crimi-
ents. Legal philosophy incorporates a hierarchy nal law. In other words, the private dispute
of rights that the law protects differentially. In between the company and the injured party is
other words, every legal system has made choices dealt with entirely by civil law, and only the pain
as to which rights are more important than oth- and suffering, lost wages, and medical expenses
ers. Thus, virtually all comparative law cases have related to the injury are paid by the company to
a philosophical component because, in order for the injured, and these payments are quite low. If
one to understand why a legal system has its own the government or public prosecutor, on the
peculiar principles, it is necessary for one to un- other hand, finds that the company has been
derstand the philosophical premises upon which manufacturing a defective product that has in-
the principles are founded. jured or is likely to injure people, they may in-
A good example of this may be seen in a stitute criminal charges against the company, and
study that compared product liability awards in any fines that the company is forced to pay will
the United States and Germany (Stiefel, et. al., go to the government and not to an injured in-
1991), and explained to the reader why not all dividual. The reason for this approach is that it
product liability awards made in U.S. courts are greatly reduces the number of fraudulent suits
upheld in Germany. Let us say that an Ameri- against corporations, suits in which people may
can buys a German-made appliance, which be- exaggerate the extent of their injuries, or even
cause of a manufacturing flaw explodes and make entirely fraudulent injuries, in order to try
injures the buyer. The American goes to court to enrich themselves by playing on the sympa-
and sues the manufacturer for damages, includ- thy of jurors. Further, German courts do not use
ing pain and suffering, medical expenses, lost juries to determine the size of awards to injured
wages, and punitive damages. Let us say that parties, but rather specialists trained for just that
the U.S. court decides in favor of the injured kind of question. The danger posed by fraudu-

44
 COMPARATIVE LAW

lent claims, especially if they result in large a part of the natural order is certainly still alive,
awards, is that companies may resist going into as seen in the fact that an adherent of Natural
business, developing new and more technologi- Law philosophy, Clarence Thomas, sits on the
cally advanced products, or they may decide to United States Supreme Court.
go out of business; all of these results harm a On the other hand, under traditional Chi-
nation's economy and employment rates. nese philosophy, as Escarra points out, law is
The reason for the American courts' use of nothing more than a necessary evil created by
high awards for product liability cases is that it men to control the actions of people who be-
is often difficult to fully punish negligent or have poorly. People who are in alignment with
malicious corporations for selling dangerous the natural world behave well and do not need
products in criminal cases. Therefore, they de- to be controlled by the law. In fact, when man
cided to use civil suits as a means to increase the first appeared on Earth, it was believed, law did
liability of corporations for producing danger- not exist. Further, if the emperor is properly vir-
ous products. In short, the philosophical differ- tuous, he brings universal harmony to all of his
ence between U.S. courts and German courts followers, and so the need for law is removed or
with respect to product liability awards is that at least greatly reduced.
the U.S. courts are primarily interested in pun- We can also see in comparative studies of
ishing companies for producing dangerous prod- the substantive law (the actual legal principles
ucts, whereas the German courts are primarily that are used to regulate behavior) of different
interested in preventing fraud from entering the societies just what people in those societies think
legal system and possibly causing great harm to is very important and what they use the law to
the economic system by making it even more protect. For example, in the United States, as
difficult for companies to start up or to remain well as in much of Europe, laws are made to
in business. encourage the growth of commerce. The U.S.
A second type of comparative law studies is legal system, for example, is effective in enforc-
purely philosophical. Some scholars are inter- ing business contracts. It also provides for a lower
ested in understanding the philosophical bases taxation rate for businesses than for other forms
of different legal systems as an end in itself. of property. Further, under U. S. law, businesses
Escarra s comparison of Chinese law with Eu- may deduct many expenses from their taxable
ropean/Roman legal systems is a good ex- income, including business lunches, entertain-
ample of studies of this type. All legal systems ment, and transportation. U.S. tax law also allows
carry their own reasons for existence. For West- businesses to depreciate business equipment.
ern legal systems, which all originated to some By contrast, pre-Communist Chinese law
degree from the Roman legal system, the law, did not protect commerce nearly so well. On the
originally at least, was believed to have divine other hand, Chinese law protected something
origins. Laws, that is, especially Natural Law, that most Americans do not even consider to be
were given to us by God and are discoverable by properly within the purview of legal protection,
a thoughtful mind through philosophical con- namely filial piety. The law encouraged filial pi-
templation. In short, Western legal philosophy ety in response to the beliefs of the Chinese
understood law to be a part of the natural order people, who were tremendously influenced by
of things. To a degree, this is still true, although Confucian philosophy; according to Confucian
few legal philosophers today are willing to in- philosophy, filial piety is one of the requirements
voke God as a source of law. The idea that law is for a good society. The law protected filial piety

45
CONDOMINIUM LAW

to the point that it made a mourning period for the peasants of Tirol. Because the comparative
parents mandatory, and in so doing made it a method was used in making this general theory,
legal offense to engage in certain behaviors, in- it has thus far also been applicable to all societ-
cluding contracting marriage, during this period. ies against which it has been tested. Other gen-
It also made disobedience to a parent or grand- eral theories that Pospisil has formulated and that
parent a legal offense and gave the father the are cross-culturally valid are theories on the
right of life and death over his offspring. change of legal systems, the change of laws, and
A third type of comparative legal study is justice. The cross-cultural validity of these gen-
the anthropological one. Legal anthropological eralizations is a result of the comparative method
studies, and anthropological studies in general, being used in their construction.
are comparative by nature. This is because an-
See also CIVIL LAW; COMMON LAW; LAW; MUL-
thropology is a science, and as such seeks to make
TIPLICITY OF LEGAL LEVELS.
generalizations and predictions. Anthropology
cannot make accurate generalizations and pre-
dictions unless it compares all societies and
cultures, and this is no less true of legal anthro- Escarrajean. (1926) Chinese Law and Compara-
pology. Could a general statement about law be tive Jurisprudence.
accurate if it was not tested against all legal sys-
Pospisil, Leopold. (1974 [1971]) Anthropology
tems? Of course, it cannot.
of Law: A Comparative Theory.
We can see how comparative law helps the
legal anthropologist in the following example. Pufendorf, Samuel von. (1927 [1682]) De Officio
The great scholars of international and Natural Hominus et Civisjuxta Legem Naturalem Libri
Law, Hugo Grotius and Samuel von Pufendorf, Duo. Translated by Frank Gardener Moore.
had asserted that law s ultimate function is to Schlesinger, Rudolf B. (1980) Comparative Law:
preserve social integrity. This generalization CasesTextMaterials. 4th ed.
stood for centuries, but conflicted with the Stiefel, Ernst C., Rolf S turner, and Astrid
modern-day law of a Micmac band on a Nova Stadler. (1991) "The Enforceability of Ex-
Scotia reserve, which actively promoted social dis- cessive U.S. Punitive Damage Awards in
unity. Thus, while the generalization made by Germany." The American Journal of Compara-
Grotius and Pufendorf applies to most societies, tive Law 39: 779-ZQ2.
it is not a universally applicable generalization. Strouthes, Daniel P. (1994) Change in the Real
Several excellent examples of the use of com- Property Law of a Cape Breton Island Micmac
parative law by an anthropologist are to be found Band.
in the writings of Pospisil (1974). He was able
to develop a theory of law, which has thus far Whewell, William. (1853) Grotius on War and^
been applicable to all societies against which it Peace. Vol. I.
has been tested, by using the comparative
method and studying a large number of societ-
ies. This theory is discussed in the entry on Law.
He also invented the theory of legal pluralism/ The term condominium
multiplicity of legal levels by studying a large CONDOMINIUM law refers to a legal situ-
number of societies, and especially by studying LAW ation in which a society
three societies personally and in depth: the is under the jurisdiction
Kapauku Papuans, the Nunamiut Eskimo, and of two or more politically and legally indepen-

46
 CONFESSION

dent societies. Condominium law is less com- offenses. In such cases, the district officer, a Brit-
mon today than it was in the past. ish man, was aided by an assessor, a native per-
From 1906 until 1980, the Republic of son whom the district officer had appointed to
Vanuatu, a Melanesian archipelago in the Pa- act as a middleman. The district officer always
cific Ocean, was known as the Anglo-French responded readily to his assessor's requests for
Condominium of the New Hebrides. Under the help, since this was a good way for the district
terms of their agreement, Great Britain and officer to make sure that his assessor maintained
France were strictly equal in their power over power and authority in the native communities.
the New Hebrides. For example, the two gov- The two men, the district officer and the asses-
ernments each demanded that their own educa- sor, together decided the outcome of the case
tional system be implemented there, although and the sanction, if any, to be imposed. The as-
few schools were actually built and many island- sessor, being familiar with the parties involved,
ers found themselves far away from schools of as well as native standards of justice, had a great
any type. Each district was represented by a Brit- influence on the decisions made.
ish officer and a French officer. The condo- The question thus is, why did the native big
minium law stipulated that both district officers men of east Aoba care to involve a colonial dis-
together make a tour of the district three times trict officer at all in their legal proceedings? Why
per year. did they not, like the people of west Aoba, handle
With respect to the administration of civil their own affairs secretly? The answer was that
and criminal law, however, the involvement of the colonial government provided a range of
the British and the French was anything but powerful legal sanctions that the big men of east
equal. All behavior was ostensibly regulated ac- Aoba used to punish troublesome people in the
cording to the provisions of the Native Crimi- area under their control. The big men sponsored
nal Code, a legislated code of criminal offenses the assessors, gave them wealth, prestige, and
and sanctions made up by the colonial powers power, and then used them to bring in the pow-
for use by the native people of the New Hebrides. erful sanctions of colonial Britain to give them-
On the other hand, on the island of Aoba selves more control over their own people.
(Ambae), the native leaders/authorities, who
See also BIG MAN.
were big men, controlled minor disputes accord-
ing to their own native laws and not according
to the externally imposed Native Criminal Code.
Major disputes, however, were handled differ- Rodman, William. (1985) " A law unto Them-
ently. In Aoba, the people living on the western selves': Legal Innovation in Ambae, Van-
side of the island wanted as little to do with the uatu." American Ethnologist 12(4): 603-624.
colonial powers as possible, and so did not in-
form the colonial district officers when legal of-
fenses occurred. They handled all such breaches
themselves. On the eastern side of the island,
the people disliked the French but tolerated the
British. The result was that the French district A confession is a state-
officer had very little involvement in the lives of CONTKSSION ment made by one ac-
the people of Aoba. cused of wrongdoing in
The people of east Aoba called upon the which he or she admits guilt. In the United
British district officer to decide serious criminal States, a confession cannot be admitted into a

47
CONSTITUTION

legal proceeding unless it can be proven that the rules and/or legal principles are not written, but
confession was made voluntarily and not under are nevertheless well known to those who govern.
duress, and that the confessor was made fully The latter situation is of course common in
aware of his or her right not to confess or to say traditional band and tribal societies. Among the
or write anything that could incriminate him Ashanti of West Africa, the constitutional rules
or her. that were in place in the Feyiase and post-Feyiase
In Japan, the law regarding confessions is period, when the various divisions of the Ashanti
quite different. There, most criminal cases are were united into a confederacy, were gathered
decided by the confession of the person charged together by an anthropologist; some of these are
in the crime. It is also the case that the police described below.
force many people to confess, even if they are There was a king of all Ashanti, who owned
innocent. In a 1983 investigation by three bar all of the land in Ashanti territory. In addition,
associations, for example, three people who had each territory within the Ashanti kingdom was
been induced to confess to murder were found ruled by a chief, who took an oath of loyalty to,
to be innocent. and could be removed by, the king. The king
The police there often interrogate those who and the chiefs were political leaders and authori-
do not freely confess their crimes from early ties as well as legal authorities. The king and the
morning until midnight. They are frequently chiefs were formal authorities, and their office
held in special police detention cells, where they was known as a stool, just as an English king's
are watched twenty four hours a day, and in office is known as a throne. Each chief was
which the flourescent lights are never turned off. guided by a group of elders known as a
The food served them is of low quality; how- mpanyimfo. Each territorial division also had its
ever, if they confess, they are given a good meal own army in which all adult men served.
(which they must pay for) as a reward. The overall organization of the Ashanti
kingdom was feudal. As the territorial chiefs
were loyal to the king and served at his pleasure,
Van Wolferen, Karel. (1989) The Enigma of Japa- so too were there subordinate chiefs (birempon)
nese Power. who were loyal to the territorial chiefs and served
at their pleasure. If a lower-ranking chief did
not acknowledge loyalty to a territorial chief, he
would be forced to do so by armed men under
the control of the territorial chief.
A constitution may be Chiefs were sacred while in office (while on
CONSTITUTION defined as the funda- the stool), and because of their supernatural pow-
mental rules and/or legal ers could not strike an ordinary Ashanti, since it
principles that are used to regulate a society's was believed that to do so would cause the ordi-
government. In some societies, constitutions are nary person to become insane. The chief's deci-
codes of written rules that are specifically set sions were considered to be made by the dead
apart from other written rules as special, as in ancestors, and thus to be always correct, and for
the United States. In other societies, much of this reason could not be questioned by common-
the constitution may be found in written legal ers. However, his every political or legal pro-
principles, although these principles maybe dis- nouncement was carefully considered by his
persed within the overall body of the society's advisors before he delivered it, and a chief's fail-
law, as in Great Britain. In yet other societies, the ure to say what his advisors had counseled him

48
 CONSTITUTION

to say would be grounds for his destoolment. gold, rum, guns, gunpowder, metal rods, and salt.
Some chiefs took on the duties of the prosecu- The king and chiefs could not engage in the trad-
tor on legal cases, in addition to their usual role ing of slaves, as other traders could do; once a
as legal authority. This attempt to increase their chief acquired a slave, it was property that could
own power often caused them to become hated only be handed down to the next occupant of
by the common people. There is also a group of that stool. Certain of the chief's retinue carried
people, called the Wirempefo, who remove the out trading on his behalf; these people included
deceased chief's stool, and who may keep it and the drummers, horn blowers, hammock carri-
thus prevent the next chief from taking office if ers, and bathroom attendants. The stools also
the next chief is not to popular liking. regulated trade within the borders of their terri-
Each territorial division and subdivision had tories, and required traders who passed through
a special matrilineage that always produced the their roads to pay a toll.
respective group's chiefs. A chief normally served A third means by which the Ashanti stools
for life, and when he died, in earlier times, his gained wealth was through court fines and fees.
attendants were killed so that they could serve The chief had the right to keep the fine paid by
him in the next world. Before he died, a mem- a man convicted of murder so as to avoid the
ber of the particular branch of the matrilineage death penalty. The stools also gained wealth
that was to provide the next chief had already through the profits made by mining gold. They
been selected by the mpanyimfo and groomed kept two-thirds of the gold that any miner found
for office as the heir apparent to the stool. on his land.
The Ashanti government acquired wealth Finally, the stool was entitled to tax people
in a variety of ways. One of the most important for the chief's funeral expenses, for the chief's
ways in which it did so was to inherit a portion enstoolment expenses, for the purpose of con-
of each man s valuable personal property upon ducting a war, and for any other purpose. The
his death, especially gold, cloth, and slaves. This stools also collected a portion of all war spoils,
wealth rose to the higher ranks of government and could require the people to give them game
from the common man indirectly and over a long and fish.
period of time. If, for example, an ordinary man The revenues that the stool collected were
who was subordinate to a member of a usually spent quickly, and so the wealth of the
mpanyimfo or a birempon died, the member of stool was circulated around within the commu-
the mpanyimfo would receive a portion of the nity. Further, the occupant of the stool, the chief
man's personal property, but only if he made a or king, could not become wealthy as a result of
contribution to the cost of the mans funeral. his office. If he were destooled, for example, he
When the member of the mpanyimfo died, part could keep only one wife, a servant boy, and some
of his personal property went likewise to the gold dust; everything else, even the property and
birempon, so long as the birempon paid a part of wives he brought with him to the office, would
the mpanyimfo^ funeral costs. The wealth went remain with the stool.
in the same way from birempon to territorial Finally, the Ashanti constitution regulates
chief, and thence to the king. Thus, the territo- the waging of war. A chief or king may plan to
rial chief, for example, had great potential wealth, make a military attack upon an enemy over a
but at most points in his life had no assets he period of months or even years, during which
could readily expend. he plans the attack itself, gathers munitions, and
The chiefs and king also gained wealth by assembles his troops. The troops are adult males
trading goods, including kola nuts, livestock, subordinate to the chief or king, as well as the

49
CONSTITUTION

chief's or king's slaves, who might number in woman who had been made pregnant by the
the hundreds. The chief or king would appoint Creator of the universe. Before he was born, a
a captain to help him lead the troops into battle. supernatural being came to his mother's mother
The captain would then swear an oath before and told her that he would be born a male and
the stool to be brave in battle; however, a person was to be named Deganawida. After he was born
taking this military oath is not subject to a fine and grew to be a man, he set out on the mission
for breaking the oath, as he would be if he broke given him by the Creator, to bring his message
any other kind of oath made before the stool. of peace, known as the Great Peace, to the
On the other hand, the Ashanti expected their Iroquois peoples, who at the time were given to
warriors to be extremely brave in the face of the internecine warfare with each other. In the pur-
enemy, and this was especially true with regard suit of this goal, he traveled and later met up
to the chiefs and king. The chiefs and king led with Hiawatha, an Onondaga man, who asked
battle and would never retreat. They would en- Deganawida to prove the truth of his supernatu-
list the aid of their ancestral ghosts by standing ral abilities and mission by surviving a fall off a
on their stools, an act designed to enrage the cliff, which he did. Following this, the two men
ghosts and make them fight harder. If it looked worked together to bring about peace.
as if the battle were lost, the king or chief would Following a number of exploits involving
use gunpowder to blow himself up, or he would Deganawida s supernatural powers, Deganawida
kill himself with poison, which he brought with and Hiawatha gathered together representatives
him especially for that purpose. All Ashanti sol- of the five Iroquois nations (Mohawk, Cayuga,
diers, in fact, were expected to be brave in war; Onondaga, Oneida, and Seneca) and told them
if one showed cowardice he was usually killed. that they wanted them to come together to form
However, the coward was allowed to pay money a confederacy. All agreed, with the exception of
in lieu of suffering death, but any man who did the Seneca. Deganawida appeased the Seneca
so was forced to wear women's waist beads, have by proposing that the Seneca would have the
his hair dressed as a woman s, and have his eye- function of military leaders for the entire Five
brows shaved, and he was unable to seek com- Nations Confederacy, and this caused the Sen-
pensation from a man who seduced his wife into eca to assent to join. Deganawida then appointed
adultery. from the representatives of the five nations the
If the Ashanti warriors were able to capture members of the first council of the confederacy,
an enemy captain, either alive or dead, they tried and gave them deer antlers to wear on their heads
him, decapitated him, dismembered him, and as badges of office. Those chosen selected other
then sent the head and legs of the enemy to the members of their own tribes as additional mem-
military leaders of the Ashanti army. If a mem- bers to complete the full membership of the
ber of the Ashanti army captured a girl and then council.
had sexual intercourse with her, it would be likely The five members of the confederacy held
that he would be killed, since captured girls be- positions within the council related to their geo-
came wives of the chief, and to seduce a wife of graphic positions relative to one another. The
the chief was punishable by death. group farthest to the east, the Mohawk, became
In contrast, the constitution of the Iroquois the confederacy's Keeper of the Eastern Door.
Confederacy, also known as the Confederation The group farthest to the west, the Seneca, be-
of the Five Nations, takes a greatly different came the Keeper of the Western Door. The
form, that of the legend of Deganawida and group in the middle, the Onondaga, became the
Hiawatha. Deganawida was born to a virgin Keeper of the Sacred Council Fire as well as the

50
TheAshanti of West Africa were ruled by kings who followed unwritten but widely accepted and understood legal
principles, which, by definition, are aform of constitution. ThisAshanti chief sits with advisors in 1910.
CONSTITUTION

confederacy's keeper of the wampum, and it was brothers, each side is apprised of the others po-
in the central settlement of the Onondaga that sition and given another chance to debate it
the council of the confederacy met. These three among themselves. If there is no agreement af-
groups were called either the "Fathers" or "The ter this, then the Onondaga make a final and
Elder Brothers," depending on which particular binding judgment. If the Mohawks disagree with
account of the legend is being told. The other the Seneca, and the Cayuga disagree with the
two groups, the Oneida (geographically located Oneida, then the separate decisions are given to
between the Mohawk and the Onondaga) along the Onondaga, who make a final and binding
with the Cayuga (located between the Seneca decision on the matter. This procedure is still
and the Onondaga) were known as either "The followed today.
Sons" or "The Younger Brothers." When the Deganawida chose the original confederacy
Tuscarora Indians (another Iroquoian people) chiefs. The names of these chiefs became the
moved northward and joined the confederacy names of the offices they held. Thus, when the
approximately 100 years later, they became an- original chiefs died, their replacements took their
other "Son" or "Younger Brother." names and, in so doing, their offices. The names,
After giving roles to the five nations, and thus the offices, belong to the clans of the
Deganawida assigned a seating plan for the men who originally held them. Since they are
council meetings. The elder brothers sat on one the property of the clans, it is the responsibility
side of the fire and the younger brothers on the of the clan leaders to reassign them when the
other. The Onondaga members of the council holders are no longer confederacy chiefs because
were given the responsibility to be the first to they have died or were removed from office. The
address any new business before the council. Iroquois are a matrilineal people and for this rea-
After giving their opinion on the matter, they son the leadership of the clans is in the hands of
passed the problem to the Mohawks. From the elder female members of the clan. The clan
them, the question was passed to the Senecas. If mother, the senior female member of the clan,
the Mohawks and the Senecas agreed on a course in conjunction with other female members of
of action, then the matter was passed across the the clan, select the next man to take the name
fire to the Oneida. The Oneida, in turn, passed associated with a position on the Iroquois Con-
the matter on to the Cayuga representatives. The federacy Council. Thus, while only men can
Cayuga told their decision to the Oneida, who, serve on the Iroquois Confederacy Council, only
if they agreed, told their combined decision to women can select them. If a clan has no appro-
the Mohawk. If the elder brothers' decision priate candidates for the name, the name can be
agreed with that of the younger brothers, then lent to another clan for the length of the office-
the Mohawk announced the combined agree- holder's term.
ment of the four tribes' representatives to the Deganawida made other rules regarding the
Onondaga. If the Onondaga agreed, then they operation of the confederacy. Only members of
certified the decision as the final decision of the the council can speak on matters of their own
council. The Onondaga could reject the deci- choosing in council meetings; other parties can
sion made by the other four tribes, but only if only speak if invited to attend by the council and
they could point to some great flaw in the deci- then only to answer the council's questions. The
sion. If the Onondaga rejected the decision, they duties of being a member of the council are con-
stated their reason for the rejection and returned siderable. Deganawida made attendance of the
the question to the others. If the disagreement council members compulsory. If a member failed
is between the older brothers and the younger to attend, and refused one request from the coun-

52
 CONSTITUTION

cil to attend, the council required that those who Chief also has the responsibility of removing the
appointed him select a replacement. If a council weapons held by a society that the Iroquois have
member commits a murder, he is not only re- defeated in a war. If a defeated society, and its
moved from the membership of the council but leader, repeatedly refuses to accede to a peaceful
is banished from Iroquois territory altogether. surrender, then the War Chief is bound to kill
Those members found guilty of rape or theft are that leader and initiate warfare once again until
also quickly deposed. If a council member who the enemy society is ready to accept a peaceful
repeatedly acts in a manner that the Iroquois surrender.
people find to be either contrary to the interests The third type of leader included within the
of the welfare of the people or contrary to Constitution of the Iroquois Confederacy is the
Deganawida s Laws of Great Peace, he may be Pine Tree Chief. The Pine Tree Chief is a mem-
removed from office if he continues his poor ber of the Confederacy Council who has been
behavior after the council has given him one selected and installed by the members of the
warning. Further, a council member who be- council, rather than by the clan heads. Selection
comes mentally deficient, blind, deaf, dumb, or as a Pine Tree Chief is done as a mark of honor
impotent could not participate, but must defer for someone who is of unusually great ability,
to a deputy selected by the same clan that se- wisdom, and honesty. Their positions are not
lected him. Finally, a council member can only hereditary, and last only so long as the Pine Tree
resign voluntarily if the other members of the Chief himself is alive. Pine Tree Chiefs may not
council accept his resignation. be deposed, but if they violate the laws of the
The Iroquois Confederacy Constitution also Great Peace, the other members of the council
provides for three other types of leaders. Two of will cease to listen to them. Pine Tree Chiefs are
these are two different types of the War Chief. often men of exceptional personal character and
The first type is a special office, of which there political power, men such as Joseph Brant and
is one in each of the five Iroquois tribes. The Red Jacket. That they are not made into regular
men who hold this office are special War Chiefs members of the council is done so as to limit
and do not have seats on the Iroquois Confed- their already great power; installing them as
eracy Council. Their first duty is to lead the regular members would place too much power
warriors in times of war; in an actual military in their hands, the Iroquois feel.
action, the warriors themselves choose one of The Constitution of the Iroquois Confed-
the five as their supreme commander. Their sec- eracy also provides that any member society that
ond function comes into play when the com- desires to destroy the Confederacy will be guilty
mon Iroquois people, particularly the women, of treason, and if that society fails to heed a warn-
are displeased with a council action or decision. ing, will be treated as a military enemy and ban-
In this event, the War Chiefs officially commu- ished from Iroquois territory. The constitution
nicate this displeasure to the members of the also includes ways in which other societies may
council, who are then expected to change their join the Iroquois Confederacy.
behavior. The second kind of War Chief is an As with the Iroquois, a constitution is the
Onondaga Confederacy member having the basic legal and political document for many na-
name/office known variously as Skanatih or tions. Most of these are quite long and detailed
Skanaawadi (meaning "across the swamp"). He and generally cover the issues attended to in the
has the responsibility of notifying the other War following example of a codified constitution (The
Chiefs, just mentioned, of a decision by the Political Laws of the South African Republic, 73-
Confederacy Council to go to war. This War 86). It is the constitution of the Orange Free

53
CONSTITUTION

State, a nation that was independent from 1854 oath of allegiance to the State and its
to 1900, but is now a province of South Africa. laws.
The white people of the region are largely of
Dutch descent. Most of the white people of Section II.How Citizenship is Lost.
southern Africa are of British descent, and it was Citizenship in the Orange Free State is lost
the design of Britain to have control over the by
(a) Obtaining citizenship in a foreign
whole area ever since the British colonized the
country.
southern part of Africa. The desire of the Brit- (b) Taking service without consent ofthe
ish to control the region led them to dominate President in foreign military service,
the people of Dutch descent, in South Africa, or accepting commission under a for-
who were known as Boers (Dutch for "farmers"). eign government.
The people of Dutch descent achieved indepen- (c) Fixing one's residence outside the
dence in 1854, but lost the South African War country with an evident intention of
in 1900 and came again under British control. not returning to this State. This in-
In the constitution, notice who is allowed the tention shall be considered to be ex-
right to vote. pressed when a man settles in a foreign
country longer than two years.
CONSTITUTION
CHAPTER IIBURGHER SERVICE.
ofthe
ORANGE FREE STATE
2. All burghers as soon as they have reached
the full age of 16 years, and all who have ob-
CHAPTER LCITIZENSHIP. tained burgher-right at a later age, are obliged
Section I.How Citizenship is Obtained. to have their names inscribed with the Field-
cornet, under whom they have their place of
1. Burghers ofthe Orange Free State are residence, and are subject to burgher-service
(a) White persons born from inhabitants to the full age of 60 years.
of the State both before and after 23
February, 1854.
CHAPTER IIIQUALIFICATION OF
(b) White persons who have obtained
THOSE ENTITLED TO VOTE.
burgher-right under the regulations of
the Constitution of 1854 or the altered
3. All burghers who have reached the age of
Constitution of 1866.
eighteen years are qualified to exercise the
(c) White persons who have lived a year
right of voting for the election of Field-
in the State and have fixed property
commandants and Field-cornets.
registered under their own names to
at least the value of 150. 4. All burghers of full age are qualified for
(d) White persons who have lived three the election of members ofthe Volksraad and
successive years in the State and have the President:
made a written promise of allegiance (a) Who have been born in the State.
to the State and obedience to the laws, (b) Who have unburdened fixed property
whereupon a certificate of citizenship under their names to the value of at
(burgher ship) shall be granted by the least 150.
Landrost of the district where they (c) Who are hirers of fixed property, which
have settled. has at least a yearly rent of 36.
(e) Civil and judicial officials who, before (d) Who have at least a fixed yearly in-
accepting their offices, have taken an come of 200.

54
 CONSTITUTION

(e) Who are owners of movables to a value 14. The Chairman shall be able to summon
of at least 300, and have lived at least an extraordinary session of the Raad accord-
three years in the State. ing to the state of affairs.
15. The laws made by the Volksraad shall have
CHAPTER IVDUTIES AND POW-
force of law two months after the promulga-
ERS OF THE VOLKSRAAD.
tion, and shall be signed by the Chairman or
by the President, saving always the right of
5. The highest legislative power rests with
the Raad to fix a shorter or longer limit of time.
the Volksraad.
The members of the Raad shall, as much as
6. This Council (Raad) shall consist of a possible, make the laws, which have been
member for each Field-cornetcy of the vari- passed, known and clear to their own public.
ous districts, and of a member for each prin-
16. In case of insolvency, or if any sentence
cipal town of a district. This Council is chosen
of imprisonment is passed against the Presi-
by majority of votes by the enfranchised in-
dent, the Volksraad shall be able to dismiss
habitants of each ward of each principal town
him at once.
of a district.
17. (a) The Volksraad shall have the right to
7. Every burgher is eligible as a member of
try the President and public officials for trea-
the Volksraad, who has never been declared
son, bribery and other high crimes.
bankrupt or insolvent, his residence being
(b) The President shall not be condemned
within the State, has reached an age of at least
without the agreement of three to one of the
25, who also possesses fixed property of at least
members present.
500 in value.
(c) He shall not be condemned without
8. A member of the Raad ceases to be such the full Raad being present, or at least with-
in any of the following cases: out due notice being given, to give all the
(a) If he neglects to come to the Raad dur- members opportunity to be present.
ing two successive yearly sessions. (d) If a quorum is summoned, and is
(b) If he loses one or more of the qualifi- unanimously of opinion that the President is
cations as required in Article 7. guilty of one of the above-named crimes, they
shall have the power to suspend him, and to
9. Members of the Volksraad are chosen for
make provisional arrangements to fulfil the
four successive years, and are re-eligible at the
duties of his office. But in that case they shall
end of the period.
be obliged to call the whole Raad together to
The half shall withdraw after two years,
judge him.
and the first half be regulated by lot.
(e) The members of the Volksraad shall
10. The Volksraad in its yearly meetings take their oath at the commencement of said
chooses a Chairman out of its own members. examination.
(f) In case the President should come to
11. The Chairman of the Volksraad shall de- die, or should resign his post, or be discharged,
cide in case of any equality of votes. or become unfit for the discharge of his of-
12. Twelve members shall make a quorum. fice, the Volksraad shall be empowered to ap-
point one or more persons to act in his place
13. The Volksraad makes the laws, regulates till such unfitness cease or another President
the government and finances of the country, is chosen.
and shall assemble for that purpose at Bloem- (g) The sentence of the Volksraad in such
fontein once a year (viz., on the first Monday cases shall have no further effect than dis-
of May). charge from their office, and the declaration

55
CONSTITUTION

of unfitness ever to hold any post under the defense and welfare of the State; similarly to
Government. But the persons so sentenced take up money on the credit of the State, and
shall none the less be liable to be judged ac- also to dispose of Government property.
cording to the law.
CHAPTER V.DUTIES, POWERS,
18. The Volksraad reserves the right to ex-
ETC, OF THE PRESIDENT
amine the election list of members for the
Volksraad itself, and to declare if the mem-
28. There shall be a President.
bers have been duly and legally elected or not.
19. The Volksraad shall have regular minutes 29. The President shall be chosen by the en-
franchised burghers; however, the Volksraad
of its transactions kept, and from time to time
publish the same, such articles excepted as shall recommend one or more persons to their
choice.
ought in their judgment to be kept back.
30. The President shall be appointed for five
20. The agreement or disapproval of the vari-
years, and be re-eligible on resignation.
ous members on any question put to the vote
must, on the request of one-fifth of members 31. The President shall be the head of the Ex-
present, be inscribed in the minutes. ecutive Power. The supervision of all public
departments and the execution and regulation
21. The public shall be admitted to attend the
of all matters connected with the public ser-
consultations of the Volksraad and to take no-
vice shall be entrusted to the President, who
tice of the transactions, except in special cases,
shall be responsible to the Volksraad, and
where secrecy is necessary.
whose acts and deeds shall be subject to an
22. The Volksraad shall make no laws pre- appeal before the Volksraad.
venting free assembly of the inhabitants, to
32. The President shall as often as possible
memorialize the Government, to obtain as-
visit the towns and give the inhabitants of the
sistance in difficulties, or to get an alteration
same and of the district an opportunity to bring
in some law.
forward at the towns matters in which they
23. The furtherance of religion and educa- are interested.
tion is a subject of care for the Volksraad.
33. The President shall make a report in the
24. The Dutch Reformed Church shall be as- yearly assemblage of the Volksraad about the
sisted and supported by the Volksraad. state of the land and the public service, shall
assist the same with counsel and advice, and if
25. The Volksraad shall have the power to
necessary, lay bills upon the table, without,
pass a burgher or commando law for the pro- however, being able to vote upon the same.
tection and safety of this land.
34. The President shall also be able to
26. After this Constitution shall have been summon an extraordinary meeting of the
fixedly determined, no alteration maybe made
Volksraad.
in the same without the agreement of three-
fifths of the Volksraad, and before such change 35. The President shall have the power to fill
may be made, a majority of three-fifths of the up all empty posts in the public offices, which
votes shall be necessary for the same in two fall vacant between the times of the meeting
successive yearly sessions. of the Volksraad, subject to the ratification of
that body.
27. The Volksraad shall have the power to in-
flict taxes or to diminish them, to pay the pub- 36. The President shall have the right to sus-
lic debt and to make provision for the general pend public officials.

56
 CONSTITUTION

37. The President with a majority of the Ex- by the courts of law, which are established by
ecutive Council shall exercise the right of the law.
mercy in all criminal sentences.
49. Legislation also regulates the administra-
38. The President with the consent of the tion of criminal justice, as also that in police
Volksraad declares war and makes peace. cases, always understanding, however, that
criminal cases brought in the first instance
39. The President shall be able to make con-
before the Higher Courts are judged by a jury.
ventions, subject to the consent of the
Volksraad.
CHAPTER VIILTHE MILITARY
40. The President shall not be able to make SYSTEM.
any treaty without consent of the Volksraad.
50. The Field-cornets shall be chosen by and
41. The President, or any member of the Ex-
out of the burghers of their wards.
ecutive Council, shall have the right at all times
to inspect the state of the finances, as also, the 51. A Field-commandant shall be chosen for
books of the officials. each district, by and out of the burghers of
the same.
CHAPTER VI.EXECUTIVE COUNCIL.
52. The assembled Field-commandants and
Field-cornets who are united on a commando
42. There shall be an Executive Council, con-
shall choose from amongst themselves, in case
sisting of the Landrost of the capital, the Sec-
of war, their own Commandant-general,
retary of the Government, and three unofficial
which General must then receive his instruc-
members, chosen by the Volksraad, to assist
tions from the President.
the President with advice and assistance.
The President shall be the Chairman, and 53. The assembled Field-commandants and
have a decisive vote. Field-cornets have the right, during the course
of the war, when they have just cause for so
43. The Executive Council shall hold session doing, to discharge the Commandant-general
on the second Monday of each second month, who had been chosen by them, and to appoint
and at such other times as the President may another, they being bound in that case to give
desire. notice to the President thereof, who on receipt
44. The Executive Council shall be bound to of such announcement, and on finding the as-
make a yearly report of its transactions to the signment reasons well founded, fixes the day
Volksraad. on which a new election shall take place.
54. After the war there exists no longer any
45. A maj oriry of the Executive Council shall
Commandant-general as such.
have the right to summon an extraordinary
meeting of the Volksraad. 55. The Field-cornets must be resident in
their own wards and possess property therein.
46. The President and the Executive Council
shall have the power of declaring martial law. 5 6. The Field-commandants must be resident
of their own districts, possess fixed property
CHAPTER VII.THE JUDICIAL to the amount of 200, and have lived one year
POWER. in the country.
47. The Landrost holds the power of civil CHAPTER IX.MISCELLANEOUS
commissioner and resident magistrate. SUBJECTS.
48. The judicial power is exclusively exercised 57. The Roman-Dutch law shall be the

57
CONTRACT

principal law of this State, where no other law valid, it must be mutually agreed upon by the
has been made by the Volksraad. contracting parties; that is, one person cannot
5 8. The law is for all alike, always understand- force another person to abide by the terms of a
ing that the judge shall exercise all laws with contract if that second person does not wish to
impartiality and without respect of persons. enter into the contract. Further, the contracting
parties must be legally able to enter into a con-
59. Every inhabitant owes obedience to the
law and the authorities.
tract; thus, in most societies, a child is not able
to enter into a legally binding contract because
60. Right of property is guaranteed. he or she is not considered mature enough to be
61. Personal freedom, provisional on remain- able to distinguish contracts that are to his or
ing within the limitations of the law, is her advantage and those that are not.
guaranteed. Traditionally, the Tswana people of South
62. The freedom of press is guaranteed pro-
Africa had five main types of contracts. These
visionally on remaining within the law. were (1) contracts pertaining to betrothal, (2)
those pertaining to marriage, (3) those pertain-
ing to the alienation of property, (4) those per-
taining to permission to use property, and (5)
Morgan, Lewis Henry. (1851) League oftheHo-
those pertaining to service. Women and chil-
De'-No-Sau-Nee, or Iroquois.
dren were not allowed to make contracts unless
Parker, Arthur Caswell. (1968) Parker on the specifically authorized, in the case of women,
Iroquois: Iroquois Uses of Maize and Other Food by their husbands or, in the case of children, by
Plants, the Code of Handsome Lakey the Seneca their fathers.
Prophet, the Constitution of the Five Nations. The betrothal contract was preceded by ne-
Edited by William N. Fenton. gotiations between the families of the future
The Political Laws of the South African Republic. bride and groom. It was concluded by a pay-
(1896) Translated by W. A. Macfadyen. ment from the future groom s family to the fu-
Rattray, R. S. (1969 [1911]) Ashanti Law and ture bride s family of an animal to slaughter or,
Constitution. instead, items for the future bride, such as cloth
or blankets. Either the future bride s family or
Tooker, Elisabeth. (1978) "The League of the
the future groom's family could break the be-
Iroquois: Its History, Politics, and Ritual."
trothal contract at any time prior to marriage. If
In Handbook of North American Indians. Vol.
only either the future bride or the future groom
15, Northeast, edited by Bruce G. Trigger and
wished to break the engagement, then the mar-
William Sturtevant, 418-441.
riage was still likely to take place, and could be
so ordered by the applicable legal authority (chief
or headman). If the future grooms family wished
to end the betrothal because the future bride had
acted badly (failing to take adequate notice of
their son when he visited or by keeping com-
A contract is a legally pany with or becoming pregnant by another
CONTRACT recognized promise, the man), then the betrothal contract could be bro-
terms of which are pro- ken and the future bride and her family had to
tected by the possibility of legal remedy if they return all that had been given them by the fu-
are not fulfilled. In order for a contract to be ture groom's family. If the future bride s family

58
 CONTRACT

wished to end the betrothal contract because of ally in one year's time), then the creditor reminds
the future groom's behavior (failing to visit the the debtor that the payment is due. If he is not
future bride's family frequently or keeping com- paid, he then waits for another period of time
pany with another woman), then the betrothal before reminding the debtor again. If the debt
contract could be broken, but the future bride's remains unpaid, then the creditor appeals to the
family could keep all that the future groom's fam- kin of the debtor. If this does no good, then the
ily had given them. In such a case, the future creditor takes his case to the chief. If the debtor
bride's family could also be awarded by the legal refuses the chief's order to pay the creditor, then
authority a further compensation to be paid by the chief will order that the creditor may go to
the future groom's family for having wasted the the debtor's house and take whatever is of equal
time that the woman had to arrange a good value to the debt; any effort by the debtor to
marriage for herself. If a future bride died be- stop the creditor is punished by the chief. The
fore marrying, the future groom was entitled to goods that the creditor has seized are not to be
continue his engagement with the dead woman's used or sold by him, since they are merely secu-
younger sister. Likewise, if an affianced man died rity for the payment of the debt. Should a debtor
before marrying, his fiancee had the right to still refuse to pay, or be unable to pay, his debt,
marry his younger brother, but her children his kin are expected to pay the debt. If they refuse
would be considered the children of the dead or cannot do so, then the debtor will have to
man and would inherit from his estate. perform labor for the creditor to satisfy his debt.
A marriage similarly involved a contract Debts are inherited by the heirs to an estate.
between the groom's family and the bride's fam- If the debt is to be paid at a later date with an
ily. The essential feature of a fully completed article of livestockfor example, a cowit some-
marriage was the payment of the bride-price, times happens that the recipient may reject the
called bogadi. The bogadi payment, consisting of offered cow as being unsuitable. This would usu-
a variable number of cattle given by the groom's ally lead directly to a lawsuit, with the headman
family to the bride's family, purchased the bride's or chief as the legal authority. If the recipient of
reproductive powers. Until the bogadi was paid, the cow had not initially specified the condition
and this could be years after the couple began to of the cow that was to be delivered to him, then
cohabit, the couple's children were considered the legal authority would rule that he must take
illegitimate and could not be the legal heirs of whatever kind of a cow was offered to him.
the father. The bogadi was returned to the Contracts were also used in several types of
groom's family if the wife died without having agreements regarding permission to use prop-
borne children or if the couple divorced on the erty. If someone borrows an item and the item
grounds of the wife's inability to bear children. is broken while it is being borrowed, the bor-
If the couple divorced after the bogadi had been rower must inform the owner immediately; oth-
paid and children born, the children remained erwise, the borrower will be liable for the repair
with the father and his family. or replacement of the broken item, even if the
Trading activities also make use of contracts. damage was accidental. With the exception of
When a Tswana man needed a manufactured wagons and teams of oxen, the Tswana do not
article that he himself could not make, he would expect payment of interest on a loan; wagons
have to go to a craftsman and usually would have and teams are rented out at a rate of two baskets
to place an order for it to be made in the future. of corn per load.
If there is a credit transaction, and the buyer does Cattle owners often lend their cattle to other
not pay the creditor at the agreed upon time (usu- herdsmen; cattle so borrowed are called mafisa

59
CONTRACT

cattle. The borrower had to ask the permission his cattle to be herded by another man as if they
of all members of his family before entering into belonged to this other man. The one taking up
a contract to borrow the cattle, since if the cattle the task of herding another's cattle may not sell
were lost it was possible for the entire family to or slaughter them, but bears no liability for the
be held liable for the value of the lost cattle. The loss of cattle due to death, straying, or theft. The
one borrowing the cattle benefits because he can owner also has ownership of the offspring of his
use their milk for himself or, if the cattle are oxen, cattle. In this type of contract, the one herding
use them for plowing his own fields. The one another man s cattle receives no payment for his
lending the cattle benefits because his workload services.
is reduced and because, in the event a disease Cattle owners also sometimes hire another
attacks the cattle of his own herd, he may be man to work solely as a herdsman of his cattle.
able to escape total financial ruin by losing only The herdsman in this type of contract is liable
those cattle and not the ones he has lent. The for the accidental loss of the cattle under his care.
borrower of the mafisa cattle must agree as part The owner pays the herdsman a fee for his ser-
of the contract to take very good care of them, vices, usually a heifer, and may also supply him
to keep them separate from his own cattle, and with food and blankets.
to never slaughter or alienate them or allow them Tswana manual laborers sometimes sell their
to be seized as payment of a debt. The owner of labor for such temporary jobs as roofing a hut or
the cattle also has the right of ownership over clearing a field. Payment and the specifications
any offspring of the cattle, but the owner usu- for the job to be done are decided at the time of
ally gives the borrower the offspring as a reward the making of the contract. If the work is done
if the borrower has taken good care of the cattle. and not paid for, the worker can sue the em-
If cattle are lost to theft, death, or straying, this ployer. If the work is not completed, the worker
must immediately be communicated to the has no legal claim to any compensation, even
owner; if a cow or ox dies, the skin must be partial compensation.
brought to the owner as proof. Failure to make Work party contracts are also used by the
an immediate report or to bring the skin of a Tswana. If a large job needs to be done quickly,
dead animal leaves the borrower liable for the such as clearing a field or weeding it, the owner
value of the lost animal. may ask his friends and kin to help him for a
The Tswana also contract for labor. One day; the owner pays the workers in beer, milk,
important kind of contract is between servant tobacco, meat, porridge, and/or salt. If a man s
and master. Servants are bound by a contract to ox dies, he may give the meat away (and quickly,
their masters for life and receive all the necessi- before it spoils) to all who wish to have a por-
ties of life, the protection of their masters from tion of it in return for a day s labor at an un-
lawsuits, and the payment of their hut taxes. In specified later date. If a recipient of the meat
exchange, they provide services such as herding, repeatedly refuses to work, a legal authority will
domestic work, and plowing. Servants could not order him to work or to repay the meat.
leave the service of their masters without per- Finally, the Tswana make contractual agree-
mission and could take no legal action against ments with magicians for their services. The
them even if mistreated by them. Finally, the employer will pay a magician for divination,
children of servants were required to serve the treatment of illnesses, and for good luck magic
family of their parents7 masters, also for life. for their huts, fields, and cattle. The payment
Another kind of labor contract involves for divinations and for the treatment of minor
cattle herding. If a man wishes, he may allow illnesses is small, but for the treatment of major

60
 CORPORATION

illnesses and for the making of good luck magic, breach of promise. The creditor has no right,
the magician is paid with an ox. The employer for instance, to take any property of the debtor
only pays the magician for treating an illness if if there is a breach, nor can he ask that a legal
the treatment is successful. If the employer fails authority punish the debtor for failing to fulfill
to pay for successful medical treatment, the ma- the obligations of the promise. In short, the
gician can sue him in court. However, people Naskapi have no true contracts as the idea of
rarely fail to pay magicians for legitimate bills, contract is defined. For this reason, it may be
because of the fear that the magicians will use supposed that many kinds of commercial activi-
sorcery against them if they do not pay. Finally, ties are not easy to carry out there.
if an employer has paid a magician the substan- In the former Soviet Union, it was almost
tial payment of an ox, he and his family have the impossible for average citizens to make contracts
right to the magician's services without further with each other. This was because the Soviet
payment at any future time. Union wished to stamp out capitalism. So, it was
The importance of contractual relations forbidden to make virtually any kind of a com-
among the Tswana may be compared with the mercial agreement with another citizen. The only
importance of contracts among the Naskapi In- kinds of contracts allowed were ones in which
dians of Labrador, Canada. Among the Naskapi, one let one's own apartment or dacha, or in
contracts are of no importance to individuals or which one sold agricultural produce grown on
the economy as a whole. The first reason is that one's own plot at the collective farm markets.
promises are not protected by the law, and thus
there can be no true contracts. The second rea-
son is because everybody does the same kind of loffe, Olympiad S., and Peter B. Maggs. (1983)
work, although there is division of labor by gen- Soviet Law in Theory and Practice.
der. Therefore, nobody typically works for an-
Lips, Julius E. (1947) "Naskapi Law." Transac-
other or trades with another. The exceptions are
tions of the American Philosophical Society
in the case of older people who cannot any longer
37(4): 378-492.
do all the things they need to do to live prop-
erly, and even these cases are rare. When such Schapera, Isaac. (1970 [1938]) A Handbook of
promises are made, however, the older people Tswana Law and Custom.
might hire a young unmarried woman to help
them and, in the 1940s, would pay her as much
as $5 or $10 and the material to make some
clothing. If they hire a boy, he is usually expected
to help with the trapping, and receives in com- The corporation is an
pensation half of the furs he takes. CORPORATION artificial person under
In Naskapi society, then, although there are the law, a legal entity
economic promises, they are few and of little that is recognized by the law as a person. As such,
importance and hence the provisions of such the corporation can be a party to legal action,
promises are little protected, and not protected either as a plaintiff or as a defendant. The cor-
at all under the law. All promises are oral and poration is a legal fiction, meaning that it exists
require no witnesses. There is nothing whatso- only in the eyes of the law.
ever to corroborate the fact that a promise was A corporation may be owned by one person
made. There is no remedy available for a breach or several persons or, in many parts of the world,
of promise, and there is no legal penalty for a it may be unowned, as is the case when groups

61
CORPORATION

of people have a corporate identity. A corpora- and it was required that the holder of such rights
tions has the capability to exist in perpetuity; bequeath them to his offspring.
that is, it may continue to exist long after any of The corporate nature of some societies
the people associated with it at any one time are manifests itself in the idea of social substitut-
dead. ability, as Meyer Fortes has called it. In corpo-
The main function of a corporation in the rate lineal societies, such as the Nuer of the
modern Western world is to limit individual le- Sudan, Tallensi of Northern Ghana, and the
gal liability. For example, if a man decides to Bedouin of the Middle East, individuals are to
manufacture airplanes, he would probably want a greater degree than in other societies substi-
to have the airplane company incorporated. If tutable for each other. There and in similar so-
he does so, and one of his airplane designs turns cieties, the social group is conceived of as less of
out to be faulty and causes crashes, only the an actual group of living people than as a system
corporation can be sued by those injured by the of legal and political statuses. When a person
crashes. The man himself cannot be sued, and holding one of these statuses dies, the society
his own personal wealth cannot be used to pay does not face the danger of disintegration, be-
damages awarded by a court to the injured. Only cause someone else will inherit that status.
the assets of the corporation are legally liable. In matters of law and revenge as well, indi-
The obvious benefit to incorporation is that it viduals within the corporation are equal and sub-
encourages people to start and to run businesses, stitutable for each other in corporate societies.
because the fear of personal financial ruin is If a member of a corporate group commits a
greatly reduced. murder, and his victim is a member of another
In many parts of the world, but particularly group, the relatives of the victim may, if it is ap-
in the Middle East and in Africa, lineal societ- propriate in those societies, seek to kill in re-
ies are found, and it is usually true that the lin- venge. However, it is the corporation as a whole
eages that make up one of these societies are that is responsible for the actions of any one of
corporate. In some other societies, tribes as a the members of the corporation. Thus, the
whole can be corporate. people seeking revenge may kill or beat any suit-
The lineage and tribal corporations typically able member (usually an adult male) of the cor-
own the land used by the members of the lin- poration to which the killer belongs; it is not
eage or tribe. For example, among the Yoruba necessary to kill or hurt the killer himself.
people of Nigeria, the corporate tribe owns all This principle of corporate political or legal
of the land the Yoruba people use and claim as responsibility for the actions of one member of
their own. Under traditional Yoruba law, usu- the corporation can be seen in modern Western
fructuary rights to Yoruba land were apportioned business practices as well. If a worker at a fac-
to the members of the Yoruba tribe. Since the tory owned by a corporation makes a bad prod-
land was owned by the Yoruba tribal corpora- uct, and that product injures someone, then the
tion, ownership rights in land could not be alien- corporation that owns the factory and employs
ated. Even a Yoruba king or chief could not the worker is legally responsible for causing the
alienate any of the real property under Yoruba injuries, not the worker himself or herself.
control; a king or chief was no more an owner of
the land as a whole, or of any piece of it, than
any other person on the face of the earth; he
thus had no right to sell or give away land. An Ajisafe, A. K. (1946) The Laws and Customs of
individuals usufructuary rights could not be sold, the Yoruba People.

62
 COUP

Fortes, Meyer. (1953) "The Structure of tion that the central government has not been
Unilineal Descent Groups." American An- sufficiently nationalistic in its policies.
thropologist 55:17-41. The coups in Nigeria in the 1960s, which
Pollock, Frederick, and Frederic W. Maitland. eventually led to civil war and the temporary
(1966 [1899]) "Corporation and Person." In creation of the separate state of Biafra, resulted
Anthropology and Early Law, edited by from tribalist allegiances and politics. The main
Lawrence Krader, 300-336. dispute centered on the position of the Ibo (also
known as Igbo) people of southern Nigeria. The
Ibo were, at the time, hard-working, trade-
minded people who spread out over the land in
Nigeria because their own homelands were
densely populated. Wherever they moved, they
The term coup is short engaged in commerce and wage labor, and in-
COUP for the French term coup vested their earnings in real property and their
d'etat, which translates children's education. They frequently displayed
literally as "a blow to the state." A coup is a quick an arrogant attitude toward others whom they
change of government through the actual or considered backward, lazy, and uneducated, and
threatened use of violence directed specifically this aroused resentment in the others, particu-
at the leadership in power, rather than at the larly in the Moslem northern part of Nigeria. In
group as a whole. Coups come about when one 1956, the northern part of Nigeria acquired self-
segment of society seeks to gain from another rule, and the largely Hausa population prevented
segment of the society control over the society Ibos from holding civil service positions. The
as a whole; coups do not directly involve forces Ibos responded by turning their efforts to mak-
external to the society, though coup leaders may ing money in the private sector.
have ties to external forces and interested parties. In January 1966, Ibo army officers staged a
Coups usually take place in societies that successful coup against the central government,
already have unstable governments, such as killing Prime Minister Balewa and many politi-
states that recently gained independence from cal leaders in the northern part of the country.
colonial powers. Usually, too, coups are military The leaders of the coup enjoyed a great deal of
in origin, since it is the military that usually popular support, including that of many Hausas.
has the force necessary to bring about a coup The leaders of the Ibo faction of the army in-
and to defeat whatever other forces may wish stalled General Johnson Aguiyi-Ironsi as the
to defend the leaders whom the coup wishes to head of the government. Aguiyi-Ironsi estab-
replace. lished a strong Ibo-dominated central govern-
The reasons why coups take place are almost ment. This in turn led to anti-Ibo riots in the
as numerous as the number of coups themselves. north, as the northern Hausas believed that the
There is no one reason for why coups occur. Ibos intended to have total control of the coun-
Some coups take place to restore the old ways of try. Hausas in the north waited until May 1966,
doing things in the face of a reform-minded and then attacked and killed several thousand
government. Other coups take place because Ibos who lived in the north. As the Ibos left to
there is insufficient reform of the central escape to the southern part of Nigeria, their tra-
government's corruption and inefficiency. Other ditional homeland, they were persuaded by the
coups are based in ideological movements, while government to remain in the north so as to help
still further coups come about from a percep- build a strong and united Nigeria. But in July of

63
COUP

Kwame Nkrumah, right, thefirst prime minister of Ghanafollowing independence from Great Britain,
visits with Indian Prime Minister Indira Gandhi, left, on 22 February 1966. In his absence, members of the
Ghanian army overthrew Nkrumah's government in a coup d'etat. Mrs. Gandhi, a Hindu, was assassinated
eight years later by two Sikhs who were her guards.

1966, the northerners staged a countercoup, and In 1967, Gowon redrew district lines in Ni-
put into power Army Chief of Staff Yakubu geria, creating twelve separate units. The east-
Gowon. Coup leaders killed Aguiyi-Ironsi, and ern Nigerians rejected this division and seceded
this was followed by a second massacre of Ibos from Nigeria, establishing a state known as
in the northern part of Nigeria. The Ibos con- Biafra. The resulting civil war lasted until 1970,
tinued to stay in the north to help establish a when a defeated Biafra consented to reunify with
united Nigeria. In September of 1966, there was Nigeria. The civil war cost 1 million Biafran
a third and very large massacre of Ibos in north- (mostly Ibo) lives through fighting, starvation,
ern Nigeria, and it was this action that convinced and disease.
the Ibos that a united Nigeria was impossible. Gowon attempted to rebuild eastern Nige-
Most of those who survived left for eastern Ni- ria and create a multitribal Nigeria, but his ef-
geria, thus accomplishing the aims of the north- forts were cut short by another coup in 1975.
ern Nigerians, who wanted a northern Nigeria The man put in charge by that coup was himself
free of Ibo people. the victim of a coup the following year. Demo-

64
 CRIME

cratically elected officials came into power in Crime is a legal offense

Nigeria in 1979, but there was another success- Cm MI; against a society. The
ful military coup in 1983. society, then, is the sub-
The reasons for the successful February 1966 ject of legal rights and the object of legal duties
coup against the leader of Ghana, Kwame to it. It thus differs from an offense against civil
Nkrumah, were different still from those given law, or tort, in that it involves a public offense
above. Ghana became independent from Great rather than a private one. All societies reserve
Britain in 1957, and Nkrumah became its first for themselves the right to regulate the behavior
prime minister. As time went on, Nkrumah be- of their members so that threats to it do not de-
came increasingly intolerant of political opposi- stroy it. Unregulated behavior can very quickly
tion, going so far in 1964 as to make the existence lead to schisms within a society and to the even-
of all opposition political parties illegal. He also tual end of the society.
established increasingly close ties with the A very broad range of behaviors are classi-
U.S.S.R. and other Communist bloc nations. He fied as crimes or offenses in cultures around the
made extensive use of preventive detention of world. The following is a list of only some be-
people who opposed him, fired judges who pro- haviors that are considered to be crimes in some
duced decisions with which he disagreed, and cultures, organized into the major categories of
had legal cases retried when the verdicts were crime. There is a great deal of variation among
not to his liking. Further, he made an error that cultures in what is considered a crime and no
cost him the support of the military. He asked clear cross-cultural patterning of crimes. Behav-
that two foreign powers, the U.S.S.R. and the iors that are considered crimes in all or most
former colonial masters, the British, train and cultures include incest, arson, theft, political as-
equip the army. The army rebelled against these sassination, nonpayment of debt, and treason.
measures and in February 1966, it overthrew
Nkrumah. In short, Nkrumah was deposed be-
Offenses against Life
cause he allowed little political freedom and be-
abortion evil eye
cause he was insufficiently nationalistic in his blood feuds gossip
leadership. cannibalism insulting
death-hastening behavior kidnapping

Greene, Fred. (1970 [1966]) "Toward Under- Offenses against the Person
standing Military Coups." In African Poli- assault gerontocide
tics and Society\ edited by Irving Markovitz, battery homicide
242-247. child abuse and neglect infanticide
elder abuse suicide
libel sorcery
Legum, Colin. (1970 [1966]) "The Tragedy in rape spouse abuse and neglect
Nigeria" In African Politics and Society, ed- slander witchcraft
ited by Irving Markovitz, 248-251.
Sex and Marital Offenses
Markovitz, Irving. (1970 [1966]) "Ghana with- bestiality extramarital sex
out Nkrumah: The Winter of Discontent." bride theft homosexuality
In African Politics and Society, edited by Irv- coercive sex illegitimacy
ing Markovitz, 252-265. desertion incest

65
CRIME

Sex and Marital Offenses, continued lying noncooperation

miscegenation prostitution moonshining quarrelsomeness
nonsupport seduction
premarital sex sodomy In all cultures except those where all people
are equals (which are very few in number), dif-
Property Offenses ferent categories of individuals often have dif-
arson malicious mischief ferent sets of rules governing their behavior.
burglary poaching These categories include the wealthy, leaders,
cruelty to animals robbery warriors, religious practitioners, the young, the
diverting water source stealing
aged, and, in many cultures, men and women.
embezzlement theft
fraud trespass The status of some of these categories exempts
livestock rustling their members from punishment for offenses that
are meted out to others. For example, warriors
Nonfulfillment of Obligations are often not punished for aggressive behavior
breach of contract negligence within the community, as they are expected to
malpractice nonpayment of debt be aggressive. On the other hand, the special
status of some other categories places greater bur-
dens on their members. For example, religious
Offenses against the Government practitioners are often expected to follow the laws
assassination insubordination and norms of behavior more closely than are
banditry mutiny other people, and they also often have to follow
bribery perjury a special set of rules. The major categories and
conspiracy piracy types of punishments include:
contempt of court political malfeasance
counterfeiting sedition
desertion slavery Physical Punishments
electoral fraud smuggling beating mutilation
espionage subornation capital punishment torture
falsification of tax evasion flogging
documents treason
illegal entry Social Punishments
gossip ridicule
Religious Offenses pillory social isolation
black magic sale of ceremonial
blasphemy objects Property Punishments
grave robbing taboo violations compensation destruction of property
impiety theft of confiscation fines
possession of ceremonial objects
illegal charms violation of Sabbath Deprivation of Rights
ritual offenses witchcraft banishment imprisonment
enslavement military service
Social Offenses
breach of etiquette gambling Cultures vary in the behaviors that are clas-
disorderly conduct greed sified as crimes and how criminals are punished.
drug abuse laziness Among the Micmac Indians of Cape Breton
drunkenness loafing Island, Nova Scotia, crimes include, in addition

66
 CRIME

Many societies consider political assassination a crime. A seventeen-year-old student stabbed Japanese socialist
leader Inejiro Asanuma to death in 1960; the murderer, Otoya Yamaguchiy hanged himself before he could be
brought to trial. Photographer Yasuki Nagao earned a Pulitzer Prizefor capturing the crime on film.

to murder and socially disruptive behavior, drink- would be free of any sanctions, and the federal
ing to excess, child mistreatment, and vandal- authorities would never learn of the homicide.
ism. The Micmac were colonized early, and since People who had committed homicide were
the early nineteenth century have been nomi- judged by the headman not guilty if they killed
nally under the legal authority of Great Britain accidently or if they killed while under the ef-
and later Canada. However, the federal authori- fects of mental illness. If the headman found the
ties had little involvement with Micmac affairs killer to be guilty of murder, he or she would be
until the 1940s. During the era from approxi- taken to the Canadian federal police (the Royal
mately 1800 until 1940, the Micmac headmen Canadian Mounted Police), who would then
used the Canadian federal legal system as a pun- turn him or her over to the court system for trial.
ishment system. In the case of homicide, for The headman would also assist the police in pre-
example, the headman would determine the guilt paring their case against the accused killer. The
or innocence of the accused murderer. If the ac- federal penal system would later mete out the
cused were judged innocent of the charge, they guilty party's sanction.

67
CRIME

In many cultures for many crimes there are ishment. Or, among the Central Thai, thieves
mitigating circumstances that mght influence are likely to go uncaught unless they steal from
how serious a specific criminal act will be con- a person wealthy enough to pay the plice to
sidered and how harshly the criminal will be investgate the matter.
punished. Thus, while cultures have a set of laws Probably the most common mitigating cir-
that define crimes and set punishments for them, cumstance is the status and personal character-
these laws often represent the ideal and are not istics of the criminal. In nearly all cultures with
necessarily bllowed strictly in day-to-day life. status distinctions based on either hereditary or
Major mitigating circumstances are how much earned wealth, power, or education, those with
harm the crime caused, the motivation (purpose- higher status are less likely to be charged with
ful or accidental) of the criminal, the relative sta- crimes and less likely to be severely punished.
tuses of the criminal and the victim, whether In some cultures, rules governing the differen-
the criminal is a member of the society or a for- tial treatment of individuis on the basis of their
eigner, and whether the criminal is insane. For social status are codified in law, while in others
example, if a Kalinga, of Luzon in the Philip- they are simply customary. The Amhara of
pines, can prove immediately that he harmed Ethiopia, for example, have clear rales to assist
someone by accident, he is immune from pun- judges in pronouncing sentence and punishment,

A Muslim in Pakistn convicted ofrape receives 100 lashes administered by Islamic officiah.

68
 CRIME

which are expected to decline in severity in the and where children are raised in ways that stress
following order (Messing, 1957: 312): obedience and self-reliance and, therefore, are
left feeling somewhat unloved. In this situation,
The man who knows the law theft may be an effort to replace the love miss-
The forgetful person (unstable personality) ing in childhood by acquiring the possessions of
others.
The "balagar" (rustic peasant)
The poor and ignorant person (illiterates) See also CAPITAL PUNISHMENT; HOMICIDE.
The stranger
The ignorant woman
The imbecile or invalid Allen, Martin G. (1972) "A Cross-Cultural
The Ethiopian from a non-Amharic- Study of Aggression and Crime." Journal of
speaking province Cross-Cultural Psychology 3: 259-271.
The child below age twelve Bacon, Margaret K., Irvin L. Child, and Herbert
Barry III. (1963) "A Cross-Cultural Study
The Amhara judge also considered the person- of the Correlates of Crime." Journal of Ab-
ality of the criminal and might adjust the pun- normal and Social Psychology 66:291-300.
ishment in consideration of whether the Barton, Roy F. (1973 [1949]) The Kalingas: Their
individual is known to be lawless, a bully, envi- Institutions and Custom Law.
ous, careless, or proud, among other traits. Ember, Carol R., and Melvin Ember. (1992)
Despite the wide variety of types of crime "Warfare, Aggression, and Resource Prob-
and offenses committed in cultures around the lems: Cross-Cultural Codes." Behavior Sci-
world and the equally broad array of punish- ence Research 26: 169226.
ments for those crimes, little is known about the
Ingersoll, Jasper C. (1969) The Priest and the
causes of crime in general across cultures, al-
Path: An Analysis of the Priest Role in a Cen-
though there is fuller knowledge of the causes
tral Thai Village.
of some specific crimes such as homicide, sui-
cide, and rape. We do know, however, with some Messing, Simon D. (1957) The Highland-Plateau
degree of confidence, that personal crime (ho- Amhara of Ethiopia. Ph.D. dissertation, Uni-
micide and assault) is one component of a versity of Pennsylvania.
broader cultural pattern of violence. In cultures Murdock, George Peter, et al. (1987) Outline of
where there is much violent crime (committed Cultural Materials. 5th ed.
in all cultures mostly by men), men often also
Russell, Elbert W. (1972) "Factors of Human
fight in wars, derive personal glory from mili-
Aggression: A Cross-Cultural Factor Analy-
tary successes, are expected to act aggressively,
sis of Characteristics Related to Warfare and
and as children are subjected to harsh disciplin-
Crime." Behavior Science Notes 7: 275-312.
ary techniques that might make them mistrust-
ful of and hostile toward other people. And there Seymour-Smith, Charlotte. (1986) Dictionary of
is also some commonality across cultures as re- Anthropology.
gards theft. Theft is a commonly committed Strouthes, Daniel P. (1994) Change in the Real
crime in cultures where there are clear wealth Property Law of a Cape Breton Island Micmac
differences between individuals and families Band.

69
CUSTOMARY LAW

A customary law may be Once researchers began to genuinely look

CUSTOMARY- LAW defined as a law that is for legal systems, they of course found them in
psychologically internal- all societies they investigated. These societies,
ized by most of the people of a society as a just moreover, had legal systems that were in many
law. In other words, it is considered fair and respects like those found anywhere else, even
morally correct. Customary law is the opposite Europe. They were not mere collections of cus-
of authoritarian law, which is not willingly ac- tom, but rather dynamic institutions that could,
cepted by the majority of people and must be and even did, cause changes in behavior away
forcibly imposed upon them if it is to have legal from the customary.
effectiveness. Still, however, the term customary law is used
The term customary law has another, invidi- by some writers to refer to the law of techno-
ous, meaning as well. In the nineteenth and early logically less-advanced societies that has not been
twentieth centuries, legal scholars in the West- codified, or written down in abbreviated codes.
ern world, on the basis of inadequate informa- For others still, customary law refers to the in-
tion, speculated that technologically primitive digenous law of a people also under colonial
peoples could have nothing so grand, sophisti- control.
cated, or logical as a legal system. These ethno- When using it to distinguish the legal sys-
centric writers believed that only the tems of smaller, indigenous societies from the
technologically advanced societies of Europe and legal systems of state societies, the term custom-
Asia could have something as advanced as a le- ary law is frequently synonymous with the term
gal system. They believed, and their followers folk law. The following decision, made by the
repeated their beliefs, that technologically primi- Tanzanian court system, is interesting because
tive societies had only custom, rather than law. it represents an instance in which the court sys-
Later, a more refined version of this argu- tem of a state society (Tanzania) upheld the le-
ment, again based upon a paucity of knowledge, gal principles (customary or folk law) used by
was that it was custom that served as law in tech- the smaller, indigenous societies within the bor-
nologically primitive societies. This gave rise to ders of Tanzania (The Law Reports ofTanzania,
the term customary law. J. H. Driberg, in an ar- 1979: 27-31).
ticle on customary law in East Africa, defined
(customary) law as "all of those rules of conduct HAMISIABDALLAH v. SAKILUSUNGI
which regulate the behavior of individuals and
communities." In the view of Driberg and oth- HIGH COURT, (RC.) CIV. APR 88-
ers, then, customary law is nothing more than DDM-76,19/11/76
rules of behavior that are generally followed. CHIPETA,AGJ.
This early view of customary law is essen-
tially racist, in that it appears to show that the HELD:
indigenous peoples of Africa, the Americas, (1) Tortious liability exists under custom-
ary law to pay compensation for damage to
Australia, and elsewhere are simply not as ad-
crops caused by tame animals.
vanced as the people of Europe. This view was the
(2) Discrepancies in the testimony of vari-
result of assumptions of European superiority ous witnesses on material points must be care-
and research that was inadequate, in that it did fully weighed in arriving at the evidence.
not seek to find out if the non-European peoples (3) A trial Court has the advantage of see-
had legal authorities, sanctions for misbehavior, ing and hearing witnesses and its findings of
and the other features of a legal system. facts should not be reversed by the appellate

70
 CUSTOMARY LAW

court unless they were not based on evidence. There is ample authority for the proposi-
Appeal allowed. tion that discrepancies in the testimony of vari-
ous witnesses on material or broad points must
be carefully weighed in arriving at the truth.
CHIPETA, AG. J.The appellant in this But trifling discrepancies are to be ignored as
appeal, Hamisi Abdallah, sued the respondent, they are often a test of truth. Several witnesses
Sakilu Sungi and one Mghenyi in Ikungi Pri- testifying to an event witnessed by them are
mary Court, Singida District, for Shs. 2207= naturally liable to disagree on immaterial
being damages for the destruction of the appel- points. It is the broad points in the evidence
lant's crops by the respondent's cattle and goats. that must be considered in weighing evidence.
The primary court unanimously found for
In the instant case there is loud and clear
the appellant, but assessed the damage at Shs.
evidence that the animals of the respondent
120/=. Dissatisfied with the judgement of the
trespassed in the appellant's shamba on at least
trial Court, the present respondent appealed
13 occasions over a period of 20 days. The wit-
to the District Court. The District Court al-
nesses are simple peasants. That being so, it
lowed the appeal. The learned District Mag-
would, in my view, be less than just to expect
istrate who heard the appeal in the District
simple peasants to remember all dates of the
Court allowed the appeal on the following
occurrence of incidents of a similar character
grounds:
over a period of 20 days. To my mind, the dis-
(1) that there were discrepancies in the
crepancy as to dates was a trifling discrepancy
evidence of the appellant and his witnesses re-
which ought to have been ignored, as it was
garding dates;
ignored by the trial Court.
(2) that the appellant did not take legal
steps at the first available opportunity; On the second point, that is that the ap-
(3) that there was no evidence that the pellant had no reasons for failing to take legal
matter had been referred to elders before steps at the first available opportunity, I will
whom the respondent and his co-defendant observe that the learned District Magistrate
are said to have admitted their liability; and cannot possibly have pursued the record with
(4) that on the authority of the case of care. There is ample evidence that the appel-
Aloice Matanda v. Mamanya Ngapanyt (1968) lant referred the matter to elders twice over
H.C.D. 456, the Primary Court had no juris- that period. It was only when the respondent
diction to entertain the suit because the mat- and his co-defendant had failed to honor their
ter was governed by the Animals (Pounds) word to make good the loss that the appellant
Ordinance, Cap. 154 of the Revised Laws, and filed the suit in court. What is so inherently
was therefore outside customary law. wrong about trying to settle civil disputes out
I propose to deal with this appeal on the of court and in an amicable manner in the spirit
basis of those four points as they adequately of African tradition?
cover the matters in dispute and the questions In regard to the third point, namely, that
of law involved. there was no evidence to show that the matter
With regard to the first question, that is, was referred to elders before whom the respon-
that there were discrepancies in the evidence dent and his co-defendant are said to have ad-
of the complainant and that of his witnesses, I mitted liability, I must say, with great respect,
respectfully agree with the learned District that that statement flies in the face of over-
Magistrate that there were discrepancies. whelming evidence on that point. With even
However, I respectfully part company with the greater respect, I allow myself the indulgence
learned District Magistrate's reasoning that of feeling that the learned District Magis-
the discrepancies were such as to make the trate cannot have read the record of the trial
complainant's case suspect. Court with the degree of care required of an

71
CUSTOMARY LAW

appellate court. There was low and clear evi- pellate court where such first appellate court
dence from at least two independent witnesses, misdirected itself on the evidence, as is the case
one of them being no lesser than a ten cell in the instant appeal. The Primary Court fully
leader who himself took part as one of the el- addressed its mind to the credibility of wit-
ders in the deliberations on at least two occa- nesses, and I see no reason to interfere with
sions. I can do no better than quote this witness its findings.
(P.W.2) on this point. He said (and this is a I will now deal with the last ground of
free translation) at pages 12-13, and 14 of the appeal. The learned District Magistrate
trial Court's record: held that the Primary Court had no juris-
diction to try the suit because it does not come
We warned the defendants not to repeat
under customary law but is governed by the
what they had done. They agreed to pay
Animals (Pounds) Ordinance, Cap. 154. He
Shs. 307= so as to redeem their 6
relied on a decision by this Court in the case
goats. . . . But they have not paid up to
of Aloice Matanda v. Mamanya Ngapanyi
now, and since then their cattle have re-
(supra).
peatedly trespassed in the plaintiff's gar-
As I understand the digest of the deci-
den. When the elders met again they
sion, what the court there held was that a Pri-
ordered the defendants to pay the plain-
mary Court has no jurisdiction to hear a suit
tiff Shs. 1207= as damages to his seed-
for costs of keeping a cow that had trespassed
lings and damages suffered by him as a
on someone's land. That case, in my view, is
result of the damage caused by the
not an authority for the proposition that a tort
defendant's cattle in the plaintiff s entire
arising out of crop destruction by tame ani-
garden. . . . They admitted the liability
mals is not within the purview of "customary
to pay Shs. 1207= and were given 30 days
law." However, as the matter has been raised I
to do so at their request.
propose to deal with it.
I therefore fail to see how the learned District From a couple of decisions by this court,
Magistrate could have come to the conclusion and from my own view, it seems to me that
that there was no evidence on this point. the tort of destruction of crops by tame ani-
Before I dispose of the fourth point there mals or persons has long been known to cus-
is one matter to which I should address my tomary law. Customary law recognizes this tort
mind. As a first appellate court, the learned and further recognizes payment of damages
Magistrate was entitled to review the evidence for the tort to the extent of compensation to
and come to his own view based on such evi- the value of the crops destroyed. This court
dence. But in doing so an appellate court must appears to have held that view in the case of
always bear in mind that on questions of cred- Alt Kindoli v. Tuzihirwe Pendaamani (1962)
ibility of witnesses it is not placed in as ad- Digest of Appeals from Local Courts No. 220
vantageous a position as a trial Court which Vol. DC. That view was reaffirmed in the case of
had the opportunity of seeing and hearing the Ruzebe Sweya v. Jacop Kitale (1968) H.C.D.
witnesses. It is for this reason that it has re- n. 407.
peatedly been held that an appellate court In Sweya's case the plaintiff claimed that
should be slow in reversing findings of facts the respondent's cattle had grazed on his
by a trial Court. An appellate court is entitled shamba, damaging cassava. Citing Ali Kin-
to reverse findings of facts only where it is clear doli's case (supra) the court held that a Pri-
that those findings of facts were not based on mary Court had jurisdiction in this type of
the evidence, or where the inferences are tortious liability because it comes within the
plainly wrong; and a second appellate court phrase "customary law" as used in Section 14
will not accept findings of facts by a first ap- of the Magistrates' Court Act.

72
 CUSTOMARY LAW

I am in complete agreement with these

two decisions. There does exist under custom-
Driberg, J. H. (1928) "Primitive Law in East
ary law a tortious liability to pay compensa-
tion for damage to crops caused by one's Africa." Africa 1:65.
animals. Hoebel, E. Adamson. (1954) The Law of Primi-
In the instant case, therefore, the Primary tive Man.
Court had jurisdiction to try the suit within
the provisions of Section 14 of the Magistrates' The Law Reports ofTanzania. (1979).
Court Act. Lloyd, Peter C. (1962) Yoruba Land Law.
On these grounds, I would allow this ap-
peal. It is accordingly so allowed with costs in Pospisil, Leopold. (1974 [1971]) Anthropology
this court and the courts below. of Law: A Comparative Theory.

73
 Ember, Carol R., Bruce Russett, and Melvin
Ember. (1993) "Political Participation and
Peace: Cross-Cultural Codes." Cross-Cultural

D
Research 27: 97-145.

DKSPOTISM

See AUTOCRACY.

Disownment is the legally

DI S0\\ \ M K \ T recognized destruction
of all parent-child ties,
including all reciprocal rights and duties, by the
parent. A parent who disowns a child is legally
no longer the child's parent.
Democracy refers to a
Among theTanala people of Madagascar, it
DEMOCRACY political system in which
is very important to maintain a good reputation
political power rests in
for one's own family. If a family has an adult
the hands of the people of the society. The term
male member who is poorly behaved, the par-
itself is derived from the Greek demos (the
ents may choose to disown the man so as to
people) and kratien (to rule). The democracies
maintain their good family name. The Tanala
with which most people are familiar are various
people only do this when the mans behavior is
forms of representative democracy that trace
extremely bad, since being disowned is consid-
their origins to ancient Greece. Greek democ-
ered a fate worse than death. The Tanala par-
racy, really Athenian democracy because it at first
ents will disown their son only if he is a habitual
was limited to the city-state of Athens, began in
thief or repeatedly engages in incestuous sexual
the sixth century B.C. Modern democracies such
relations. Incest is considered especially bad,
as the United States and other Western nations
since the village's ancestral spirits are believed
are characterized by an an elected chief execu-
to cause sickness and crop failure for the whole
tive with limited or balanced powers, a wide vot-
village when it is committed.
ing franchise, open elections with competing
The process of disownment is public. In it,
candidates, and the protection of individual civil
the parents give presents to all the other extended
liberties. Democracy in the modern world is
families to compensate the village for the loss of
closely linked to economic development; that is,
labor that the young man would have provided.
industrialized and postindustrial nations are
The disowned man is then forced to leave the
more likely to have democratic forms of gov-
village under threat of death should he return.
ernment than are nonindustrialized nations.

Linton, Ralph. (1936) The Study of Man: An

Dahl, Robert A. (1971) Polyarchy. Introduction.

75
 tervene in certain cases being heard by the usual
judges and to impose a decision that conflicted
with the one that the judge had rendered. The

E
praetor's decision was based entirely upon jus-
tice, to the neglect of precedent and statute.
In England, equity in the legal system de-
veloped when the common law courts became
unable to give just decisions in all cases due to
the rigidity caused by following precedent and
statute alone. The King of England, therefore,
created a special high Court of Chancery at the
end of the sixteenth century to give decisions
based upon equitable justice rather than upon
precedent and statute. Originally, a separate set
of rules of equity were set forth that existed in
parallel with the common law system. Later,
equity became a part of common law, and ordi-
nary judges could use the system of equity in
their own courts. The use of equity in the ordi-
Equity may be defined nary court system also was a feature of later Ro-
EQUITY as law that is especially man law. The use of equitable principles is also
aimed at achieving just used in courts in most parts of the United States,
decisions by paying more attention to the spirit and decisions based upon equitable principles
of equality in the law than to the letter of the rather than statute or precedent are called "deci-
law. Equitable decisions are ones that are con- sions at equity." In both Rome and Britain, eq-
cerned more with the merits of the individual uity was originally considered to be the
case than with the treatment of all similar cases conscience of the head of state; in Rome it be-
in an identical matter. The term equity is a prod- longed to the emperor, and in England to the
uct of the English legal system, although the royal monarch.
principles of equity are often practiced in other
See also COMMON LAW; JUSTICE.
legal systems under various different names.
Equity is an aspect of justice in adjudication.
Systems of equity begin when the usual sys-
tem of law starts to become very rigid and un- Maitland, F. W. (1936) Equity.
creative, as many legal systems do over time. This
Pospisil, Leopold. (1974 [1971]) Anthropology
rigidity and lack of creativity begin to produce
of Law: A Comparative Theory.
unjust decisions in that the law is unable to
take into account all the types of wrongs people
suffered. In other words, many types of wrongs
simply cannot be remedied by law courts be-
cause the law does not address those problems. The term expropriation
The first recorded system of equity was es- EXPROPRIATION refers to the govern-
tablished in ancient Rome. There, the praetor, a ment's taking ownership
special kind of magistrate, had the power to in- of privately owned property for its own use.

77
EXTORTION

Expropriation cannot legally be prevented by the viet government expropriated ownership of

private owner. In United States law, expropria- nearly all of the property in the country.
tion is often known as a "taking." The law of The wholesale expropriation of industry
expropriation is part of the law of property. proved to be disastrous, since the state frequently
In the United States, the government, could not run efficiently the factories they had
whether federal, state, or municipal, may expro- expropriated. So, in 1921, the Soviet Union
priate private property under the doctrine of reprivatized some industries under the provisions
eminent domain, the right of the sovereign of the New Economic Policy. However, Stalin
power to use property within its borders for pub- later expropriated ownership of these businesses
lic benefit, and under which the individual prop- once again.
erty owner has no say in the expropriation. Under
United States law, the government cannot ex-
propriate private ownership interests in prop- Vbslensky, Michael. (1984) Nomenklatura: The
erty unless the expropriation is done to benefit Soviet Ruling Class. Translated by Eric
the public, and only if the individual owner is Mosbacher.
justly compensated for the loss of his interests.
In contrast, the leaders of the Soviet Union
carried out expropriations in a much different
manner shortly after the Communist revolution
in 1917. In November 1917, the leaders of the
Soviet Union expropriated the entire banking Extortion is the acquisi-
system that had existed in Russia. First, armed EXTORTION tion of money or other
men took control of the State Bank in Petrograd. benefit from another
On 26 November 1917, Lenin ordered that all person through the use of fear created by illegal
private banks be taken over by the Soviet Union, threats. Extortion is also known as blackmail.
and this was done the next day, also by armed A form of extortion that is not uncommon
forces. Lenin declared all of the banks property in India is the extortion of larger dowries by the
of the Soviet Union, and they were combined groom s family from the bride's family by ha-
into the Soviet Unions State Bank. None of the rassing the recently married bride. In India,
owners of the banks received any compensation Hindu marriage has traditionally included a
for the value of their loss. dowry (in Hindi, known as daan dehej\ a pay-
Since it was Lenin's purpose that the Soviet ment or payments of money and other property
leadership control most of the wealth in the na- by the parents of the bride to the bride and her
tion, he ordered the wholesale expropriation of husband. One function of dowry is to help en-
industrial companies and other business ven- sure that the bride s children will be supported,
tures. The problem he faced, then, was what to even if her husband dies. Some Indians believe
do about all of the small private investors who that the use of dowry is endorsed by religious
held stocks and bonds issued by the expropri- texts such as the Manusmriti. The practice of
ated companies. Lenin solved the dilemma sim- using dowries is very common in the upper eco-
ply by declaring that all stocks and bonds were nomic classes, and thus it is widely considered
null and void. Further, Lenin ordered that all prestigious to use dowries.
debts of the former czarist government, whether The cost of the dowry is often quite high.
owed to foreigners or to Russian citizens, were In a middle-class area of Delhi, the modal cost
likewise null and void. In this fashion, the So- of dowries is 50,000 rupees, although dowries

78
 EXTORTION

Women in New Delhi in 1980 protest the tradition of dowries, payments by the parents of a bride to
the bride and her husband to complete a wedding. Although outlawed by the Indian government
in 1961, the tradition continues.

of 200,000 rupees are fairly frequent. This rep- centesis and abortion of female fetuses has be-
resents a great burden to all but the wealthiest come a serious problem, to the point that the
people. Oftentimes, a family will save money for state of Maharashtra has forbidden the use of
years for a daughter's dowry. Still, it often hap- amniocentesis for sex determination in all medi-
pens that a father has great difficulty in arrang- cal facilities but government hospitals.
ing a marriage for his daughter if he does not Extortion takes place after the wedding. The
have sufficient money for the size of the dow- payments of dowry frequently continue after the
ries requested by potential grooms. It is not un- wedding, though most dowry payments are
known for girls and young women to commit made no later than a few years after the wed-
suicide so as to avoid placing the burden of ex- ding. In some cases, the husband uses threats of
pensive dowries on their families. Parents, too, future beatings or verbal abuse on his wife to
consider the cost of dowries. In the past, female coerce his wife's family to increase the dowry.
infanticide was sometimes practiced. Nowadays, Often in such cases, the man's mother also as-
parents use amniocentesis to determine the sex sists her son in harassing her daughter-in-law
of their unborn children, and many have abor- for more dowry money. Sometimes, the harass-
tions if the fetus is female. The use of amnio- ment culminates in the wife's suicide. In other

79
EXTORTION

cases, the husband becomes enraged by his wife's There have been arrests and convictions under
family's failure to pay more dowry to the point this law, but by and large people in India ignore
that he kills his wife. The typical method of com- it and commonly and routinely violate it.
mitting "dowry death," as it is known, is by burn-
ing the wife with the kerosene used in cooking
appliances. For this reason, dowry deaths are also
known as "bride burnings." Willigen, John van, and V. C. Channa. (1991)
In an effort to end dowry and the violence "Law, Custom, and Crimes against Women:
so often associated with it, the Indian govern- The Problem of Dowry Death in India." Hu-
ment made the payment of dowry illegal in 1961. man Organization 50(4): 369-377.

80
 done by Melford Spiro. Spiro found that in the
town he studied there were two major political
factions that dominated village politics, which

F
were called the Ayoundaw group and the Thamu-
hnamu group. The core of the Ayoundaw faction
was composed of people who belonged to fami-
lies that had for a very long time been the tradi-
tional elite of the village. These people had
recently begun to lose their top economic posi-
tion, but they had clung to their status as the
members of the top social class. The core mem-
bers of the Ayoundaw faction were well educated,
schooled in the social graces, and, in general,
behaved in the manner of leisure classes the
world over. The core members of the Thamu-
hnamu faction, on the other hand, were people
who had only recently become wealthy, usually
through the ownership of large parcels of farm-
lands. They were not well educated and, in gen-
A faction is a political eral, were concerned primarily with hard work
FACTION group or clique within and making money. The core members of the
one or more established, Ayoundaw faction resented the success of the core
politically active groups or parties; a faction tends members of the Thamu-hnamu faction, which
to be united for a short period around a single had cost the former their unquestioned top eco-
issue or group of related issues. A factions mem- nomic status, even though they were still con-
bership cuts across established political group sidered socially superior. In turn, the core
lines; for example, a faction to support a bill in members of the Thamu-hnamu faction resented
the U.S. Congress may have members from both the Ayoundaw factions efforts to suppress them.
the Democratic and Republican parties, but Other members of the Thamu-hnamu faction
other Democratic and Republican senators and included other people who had been hurt by the
congressmen may form another faction opposed members of the Ayoundaw faction in the redis-
to the bill. Also, as a result of political negotia- tribution of the nations land. The Ayoundaw
tions, the membership of each faction can change faction also included people who were fearful of
many times before voting on the bill takes place. being hurt by the great economic power wielded
Both factions cease to exist after the Congress by the core members of the Thamu-hnamu
has either finally passed or rejected the bill. faction.
If a society has a tendency to form factions Spiro was never able to learn the true origin
easily, the political process can become unstable of these factions, because his informants gave
and the welfare of the society can suffer. For this him two different accounts. The first of these is
reason, people who readily support factions in- that the factions began shortly after Burmese
stead of trying to build a consensus of all around independence was achieved in 1948. A group of
a particular issue are sometimes attacked as be- armed guerrilla insurgents occupied the area and
ing self-serving at the public's expense. were powerful enough to have actual control of
One interesting study of factionalism in a the village at night, although the central gov-
town in Burma (now known as Myanmar) was ernment had control over the village during the

81
FACTION

day. The insurgents forced the people of the town also entirely self-regulating. The wealthy land-
to supply them with money and food. The in- owners attempted to bribe the committee so as
surgents also installed one of the village men as to avoid losing portions of the land they owned.
its representative, and this man (U Pain) col- On the other hand, the members of the com-
lected the payments that the insurgents de- mittee extorted bribes from landowners, threat-
manded. According to the Thamu-hnamu ening that they would expropriate lands to which
faction, U Pain kept some of these forced pay- the landowners were legally entitled under the
ments for himself and his friends, the people who Land Nationalization Act. The committee also
later became the Ayoundaw faction. failed to give lands to the eligible poor unless
The second account of the origin of the fac- they also paid bribes. Finally, one of the most
tions begins in 1951 when the people of the vil- serious charges was that land expropriated un-
lage organized the Village Development Society der the act was never delivered to the poor, but
to provide low-interest loans for farmers. Each rather kept by committee members, given to
member of the society contributed a payment of their friends and relatives, or transferred to peas-
one-half bushel of rice to fund the society. After ants in return for even greater bribes.
two years of growth, the society had 100 mem- The factionalism manifested itself in yet dif-
bers, a fair amount of money, and a lot of rice in ferent ways. There was an election for the office
storage. At this point in time, it was discovered of headman of the village. The office had tradi-
that a large amount of money was missing from tionally belonged to the elite, now the core of
the society's coffers. U Pain and his friends in t\iz Ayoundaw. However, the growing economic
the Ayoundaw faction were the officers in charge power of the Thamu-hnamu made their candi-
of the society, and members of the Thamu-hnamu date a strong contender. The Thamu-hnamu can-
faction accused them of embezzling the missing didate in point of fact lost, but had he won, his
money. U Pain made a countercharge that it was faction, with both its wealth and its control of
in fact the Thamu-hnamu faction that had sto- the headman's office, would have permanently
len the money and was merely accusing the ended the influence of the members of the old
Ayoundaw faction with the offense to camou- elite, the Ayoundaw.
flage its own complicity. Later, another One important quality of the factionalism
Ayoundaw member became treasurer of the so- in this Burmese village is its absence of physical
ciety. Still later, the society folded and offered confrontation. There were no public arguments,
each member of the society five bushels of rice let alone fights, as a result of the factionalism.
in the liquidation of its assets. The treasurer dis- The members of the two factions displayed their
covered that there was insufficient rice to give antipathy toward each other by withdrawing
each member five bushels, so he took what he their cooperation from activities associated with
needed from the private granary of a Thamu- the other. The withdrawal of cooperation by the
hnamu member and claimed that the rice actu- Thamu-hnamu was even more pronounced after
ally belonged to the society. it lost the election for headman.
Another factional conflict took place over After the election, the headman, as one of his
the imposition of the federal Land Nationaliza- duties, organized the village's observation of
tion Act, the intent of which was to take some Wazou, a Buddhist holy day. Some members of
land from wealthy landowners and distribute it Thamu-hnamu refused to attend the event, because
to the landless poor. The committee set up to it was organized by the Ayoundaw headman.
administer the land redistribution was made up On the grounds that an Ayoundaw member
entirely of members of the Ayoundaw and was had failed to participate in a mandatory work

82
 FACTION

party crew to maintain the village's chapel, all splintering and internal dissension, and there is
members of the Thamu-hnamu refused to join little solidarity within a faction's membership
the work party. They also refused to use the beyond the issue that formed the factions in the
chapel. first place. An interesting example of this is that
The factionalism spread to performances of of U Lum Byei, the village's wealthiest man and
the village orchestra during public celebrations. the Thamu-hnamu faction's candidate for village
The orchestra, being under the control of the headman. His affinal kinsman Kou Swe was also
ruling Ayoundaw, refused the entry of a drum- a fellow faction member and a great supporter
mer belonging to the Thamu-hnamu faction. of his in the election. Yet, when Kou Swe fell ill
Ayoundaw members accused the Thamu-hnamu and could not fulfill a contract to deliver bam-
of sending the drummer to subvert the other boo to a Malay businessman by the promised
orchestra members to support the Thamu- date, U Lum Byei did not help his kinsman and
hnamu. The members of the Thamu-hnamu be- fellow faction member transport his bamboo;
came angry at this charge, and as a result declared rather, he offered to sell his own bamboo to the
that they would found their own orchestra. The businessman in place of the bamboo of Kou Swe,
village elders, all appointed by the headman, so as to keep the profit for himself.
became concerned that this could mean the end The membership of factional groups is tied
of their village and so proposed that certain very closely to the particular interests of the in-
musical instruments would be played by mem- dividuals involved in making up the factions. In
bers of one faction and other instruments by other words, a faction that develops over one is-
members of the other faction. The Thamu- sue may contain two people who had been in
hnamu agreed to this, but later the only Thamu- opposing factions over another issue. For ex-
hnamu member of the orchestra, the drummer, ample, take the case of the village's wealthiest
resigned. woman, Do Ci. She brought legal charges
The village as a whole was also expected to against Kou Khin Maung for allegedly molest-
provide money for the building of a pagoda at a ing her granddaughter. The dispute became a
nearby Buddhist pilgrimage center, and the political as well as a legal one, and Kou Khin
headman of the village was expected to collect Maung received the support not only of the
this money. The members of the Thamu-hnamu, Ayoundaw headman, but also of the two most
in opposing the Ayoundaw headman, refused to powerful supporters of the former Thamu-hnamu
contribute, and since they had the majority of candidate for headman. On the other hand, the
the village's wealth, the village was unable to former Thamu-hnamu candidate for headman
meet its obligation that year. lent his political support to Do Ci against Kou
The existence of two factions caused inter- Khin Maung.
nal political difficulties, but their disputes did The last characteristic of factionalism in this
not lead to any differences in social solidarity Burmese village was that factionalism was well
with respect to the outside world. For example, camouflaged behind a public display of friend-
when a member of the Thamu-hnamu faction liness between the members of opposing fac-
faced federal governmental opposition, all mem- tions. When the members of one faction make
bers of the village rallied together behind him, allegations of wrongdoing against the members
in large part to maintain a good name for the of the other faction, they do it privately and
village as well as to assist the fellow villager. through third parties. Written allegations filed
Another feature of factions in this Burmese with formal authorities bore no signatures.
village is that factions are themselves prone to Those involved in a plot to remove the

83
FAMILY LAW

Ayoundaw headman from office also invited him bounty money (earned by killing wolves) to a
to coffee, as they would any friend, just hours white trader who came through the area. The
before they attempted to carry out their plan. Tulugak Lake people, on the other hand, spent
This pattern of behavior meant that conflicts much of their time in the bush working, and
rarely were resolved, and that resentments built chartered their own plane to send the products
up over time, leading eventually to a schism they made, their furs, and their bounty money
within the entire village. Much is said privately, to other traders where they could get a better
but almost none of what is spoken about ever deal. This meant that the Tulugak Lake people
comes to pass. enjoyed a higher standard of living, and this, in
In contrast, in band societies, factionalism turn, meant that the Killik River people were
is the chief means by which two or more bands often jealous of the Tulugak Lake people.
are created out of one former band. In such cases, Despite the existence of these factions, the
factionalism may be viewed as a positive event. Nunamiut band was stronger with the two fac-
When a band grows to be too large for the local tions living together than it would have been had
resources to support all of its members, it makes the two factions lived as separate bands. When
sense for the band to divide into two or more difficult times demanded it, differences between
groups and for the groups to move away from the two factions disappeared, and all of the mem-
each other and form separate bands. The two bers of the band worked together as a single team
new bands will thus not deplete the resources to conquer the troubles of the moment.
around them. A second reason why factional- This is not to say that Eskimo bands did
ism benefits band societies (as well as other types not split into two or more bands on occasion.
of societies) is that it allows people who have Band fission occurred when the band s popula-
disputes to move away from each other. In this tion exceeded 150 people for a period of time,
way, the likelihood and severity of conflict be- thus making it difficult to find enough food
tween the disputants are both reduced without nearby for all. When a band split up, it usually
the need for legal remedies. did so along factional lines.
But single bands can also form out of two
See also FISSIONING.
or more separate bands, in which case the origi-
nal populations often coexist as separate factions
within the band. Such was the case of the French, David. (1948) Factionalism in Isleta
Nunamiut Eskimo of Anaktuvuk Pass in the Pueblo.
Brooks Range region of Alaska. There, the two
Gubser, Nicholas]. (1965) The Nunamiut Eski-
factions, known as the Tulugak Lake people and
mos: Hunters of Caribou.
the Killik River people for their earlier homes,
largely kept separate from each other in many Spiro, Melford. (1968) "Factionalism and Poli-
respects. They were mutually distrustful and of- tics in Village Burma." In Local-Level Poli-
ten gossiped about each other, sometimes mak- tics, edited by Marc Swartz, 401-421.
ing accusations about a member of the other
faction's use of sorcery. The two factions also
tended toward endogamy, although there was
some intermarriage. Also, the two factions car-
ried out their economic activities separately and Family law is law that
in greatly different fashions. The Killik River FAMILY LAW applies to the member-
faction sold their furs, manufactured goods, and ship and functioning of

84
 FAMILY LAW

the family. Specifically, family law includes laws Article 1115.In case there are several
pertaining to parent-child relationships, sibling- persons bound to furnish maintenance, the
sibling relationships, husband-wife relationships, order in which they are to perform such obli-
marriage, divorce, and adoption; in more recent gation is as follows:
times in some nations, the legal regulation of 1. Lineal descendants;
surrogate parenthood, abortion, as well as dis- 2. Lineal ascendants;
putes over postdivorce child custody and the 3. Head of the house;
4. Brothers and sisters;
rights of natural parents who do not have le-
5. Members of the house;
gally recognized parenthood have become im-
6. Daughter-in-law and son-in-law;
portant. Additional laws may be involved if the 7. Parents of either spouse.
society normally has extended families living
Among lineal ascendants or lineal descen-
together, since grandparent-grandchild relation- dants, the person nearest in degree of relation-
ships and relationships between an individual ship comes first.
and his or her parent's sibling may also be le- If there are several persons of the same
gally relevant and regulated. degree of relationship bound to furnish main-
A critical part of family law in any culture is tenance, such obligation shall be borne by
the question of maintenance. Maintenance is the them according to their respective means.
material or financial support that one person is Article 1116.In case there are several
legally required to pay to another person who is persons entitled to maintenance, and the
incapable of supporting himself or herself. In the means of the person bound to provide it is not
United States, the only people who have a legal sufficient to maintain all of them, the person
to receive maintenance shall be determined in
right to maintenance are spouses, divorced
the following order:
spouses who receive maintenance in addition to
1. Lineal ascendants;
alimony payments (sometimes maintenance is
2. Lineal descendants;
included in the alimony payment), and minor
3. Members of the house;
children. 4. Brothers and sisters;
In pre-Communist China, however, where 5. Head of the house;
the family was the most important unit of soci- 6. Parents of either spouse;
ety, maintenance was required by law for a great 7. Daughter-in-law and son-in-law.
number of kin. Following are the statutory rules Among lineal ascendants or lineal descen-
concerning maintenance in the Chinese Repub- dants, the person nearest in degree of relation-
lic (The Civil Code of the Republic of China, 1931: ship comes first.
39-41): Where there are several persons of the
same degree of relationship entitled to main-
tenance, each shall receive maintenance ac-
Chapter V cording to his needs.
Maintenance Article 1117.Persons entitled to main-
Article 1114.The following relatives are tenance are limited to those only who have no
under a mutual obligation to maintain one an- means of maintenance and have no ability to
other: earn a living.
1. Lineal relatives by blood; The aforesaid limitation in respect of in-
2. Spouse and the parents of the other ability to earn a living does not apply to the
spouse living in the same household; case of lineal ascendants by blood.
3. Brothers and sisters; Article 1118.A person who can no
4. The head and the members of a house. longer support his own living if he assumes

ss
FEUD

the obligation of furnishing maintenance to groups (groups of brothers who live in the same
another, shall be exempted from such an obli- community), lineages, clans, or extended families.
gation. Some anthropologists have claimed that the
Article 1119.The extent of maintenance feud is a form of primitive law, since the threat
shall be determined according to the needs of of revenge forces people to abstain from com-
the person entitled to maintenance, and the
mitting homicide. Bronislaw Malinowski, a
means and social status of the person bound
to furnish it.
famous anthropologist, wrote (1964:261) "fight-
Article 1120.The manner in which ing, collective and organized, is a juridical
maintenance is furnished shall be determined mechanism for the adjustment of differences
by mutual agreement between the parties, or between constituent groups of the same larger
if they cannot agree, by the family council. cultural unit." Robert Spencer (1959: 161) said
Article 1121.Either party may demand that after a North Alaskan Eskimo was killed,
an alteration in the extent and the manner of "his own kin became embroiled and the legal
furnishing maintenance on the ground that mechanism of the feud was put into action."
circumstances have changed. These statements are misleading. The feud con-
tinues, on and on, because there is no authority
See also ADOPTION; MARRIAGE; PATRIA POTESTAS; who can stop it, and authority is one of the nec-
RIGHTS, CHILDREN'S. essary attributes of law. Feud, because it can con-
tinue so long, can be very destructive to society,
sometimes killing off whole families, bands, or
even tribes. That is why law always tries to pre-
The Civil Code of the Republic of China. (1931) vent killings, revenge killings, and feuds, even
Book IV, Family. Translated by Ching-lin though the parties to the feud may remain
Hsia, James Chow, Liu Chieh, and Yukon angry with each other. Feud cannot be law, fur-
Chang. ther, because feuds do not lead to final settle-
Rwezaura, Barthazar Aloys. (1985) Traditional ments or peace (except when the other party is
Family Law and Change in Tanzania: A Study exterminated), as does law. Feud is the opposite
of the Kuria Social System. of law.
One of the most commonly described types
of feud is the blood feud, in which two groups,
usually kin-based groups such as kindreds, or
descent-based groups such as lineages, avenge
the murder of a member of their own group by
killing one of the members of the killers group.
A feud is defined as pro- If simple revenge is taken, and the dispute is put
Fi:ui) longed, unauthorized to rest, then it is a case of revenge and not of
violence between two feud. Feud occurs when the process of taking
subgroups of a larger group or between two revenge goes back and forth, and it is often the
groups who reside in the same political commu- case that the original killing, or other offense, is
nity (Pospisil 1971: 10). It differs from war in forgotten. Feuds can last generations.
that war is authorized, or approved by the au- A recent study of feuding in 186 societies
thorities, and takes place between independent indicates six levels of feuding in cultures around
groups or societies. Feuding groups are usually the world, noted below with the percentages of
large kinship groups such as fraternal interest societies that practice that form of feuding:

86
 FEUD

feuding is considered with her a substantial dowry and recognizes that

morally imperative 22.0 percent her children will belong to her husband's kin
feuding is considered the group, not the group to which she was born.
most appropriate response 8.9 percent Thus, a woman and her family give up much at
feuding occurs only in marriage. In turn, the husband's family makes
certain circumstances 10.7 percent little material contribution to the marriage, ex-
feuding is considered cept to give its name and honor, which the wife
a last resort 11.9 percent gains upon marriage. Thus, it is important that
feuding occurs but kin groups maintain their good name and honor,
is punished 37.5 percent and any slight to that honor must be erased
kin groups are not through revenge. And, since it is girls and young
recognized as an avenging women who will marry out, slights to their
unit, so feuding does honor, and especially their sexual purity, must
not occur 8.9 percent be revenged. Since it is a family matter, it is of-
ten the brothers (fraternal interest groups) of the
As these percentages show, feuding is per- unmarried sisters who initiate the feuding.
mitted in 53.5 percent of societies. These fig- The Sarakatsani, a Greek-speaking pasto-
ures apply to the situation in the early 1900s. ral people of northern Greece, display the major
Since World War I, feuding has diminished or features of this type of feuding. Family honor is
disappeared in many societies where it was pre- a vital matter to the Sarakatsani and comes into
viously common, evidently because these soci- play when a male member of the family is physi-
eties were incorporated into modern nations cally or verbally attacked by an outsider, when a
where the local, regional, or national police and kinswoman is the victim of sexual assault or in-
legal systems were the primary mechanisms for sult, or when a kinswoman is guilty of sexual
settling serious disputes and they eventually re- misconduct. The notion of honor is much con-
placed feuding. Feuding was especially common, cerned with the concepts of manliness and sexual
and vestiges remain, in societies near the Medi- shame and serves as the basis for the social value
terranean Sea, such as among Sicilians, of the family as judged by outsiders.
Calabrians, Albanians, Serbs, Montenegrins, In accord with their conception of honor,
and Libyan Bedouins. the Sarakatsani seek revenge for two types of
In societies with feuding, the offenses that attacks on their honorkilling of a man and
require blood revenge are the murder of a kins- sexual assault of a woman. The killing of a man
man by a member of another kinship group or requires revenge by killing the murderer or driv-
an affront to the honor of a kinswoman by a male ing him permanently away, with the former pref-
member of another kinship group. An affront erable. To kill the murderer means "to take out
to the honor of a kinswoman is the more fre- the blood" of their murdered kinsman, as the
quent precipitator of violence, and is a major Sarakatsani believe that by taking the blood of
cause of feuding in societies in the Mediterra- their kinsman, the murderer took strength from
nean region because of the status of women in the family. The sexual behavior of daughters, sis-
these societies and the economic arrangements ters, and wives is of central concern, as the sexual
between families whose children marry one an- behavior of women is controlled by the family.
other. In many of these societies, when a woman If a woman commits adultery, she and her lover
marries she moves to the community of her are killed by her husband to restore honor to the
husband's family. In addition, she often brings family. If a daughter loses her virginity before

87
FISSIONING

marriage, she and her lover are killed by her fa-

ther or brothers. If a woman is raped or sexually Campbell,}. K. (1964) Honour, Family, and Pa-
dishonored, such as by having a betrothal bro- tronage: A Study oflnstitutions and Moral Val-
ken, only the man is killed. ues in a Greek Mountain Community.
All of this might suggest that the Sarakatsani
Caudill, Harry M. (1963) Night Comes to the
are in a constant state of feuding, with a real
Cumberlands.
possibility that the men may kill each other off
completely. This does not happen, because in- Ericksen, Karen Paige, and Heather Horton.
sults that require blood revenge do not occur too (1992) "Blood Feuds': Cross-Cultural Varia-
often, the guilty man can flee and stay away per- tions in Kin Group Vengeance." Behavior
manently, the Greek police often intervene and Science Research 26: 5786.
arrest the guilty man, or the offended family Malinowski, Bronislaw. (1964) "An Anthropo-
might choose not to seek blood revenge because logical Analysis of War." In War: Studies from
the cost of the revenge (the likely death of one Psychology, Sociology, Anthropology, edited by
of their own men) seems too high. Leon Bramson and George W. Goethals,
The Micmac Indians of eastern Canada have 245-268.
an ingenious nonlegal means to stop feuds be- Otterbein, Keith F, and Charlotte S. Otterbein.
fore they start. If a man kills another, or com- (1965) "An Eye for an Eye, a Tooth for a
mits some other offense to a family or Tooth: A Cross-Cultural Study of Feuding."
patrilineage, he is safe from the threat of revenge American Anthropologist 67: 1470-1482.
so long as he remains outside of the victim s fam- Pospisil, Leopold. (1974 [1971]) Anthropology
ily territory. The victims family would appear to of Law: A Comparative Theory.
all to be dishonorable if they attacked the killer
in the killer s own family territory or anywhere Spencer, Robert F. (1959) The North Alaskan
outside of their own family territory. If the killer Eskimo. Smithsonian Institution Bureau of
enters the family territory of his victim, he may American Ethnology Bulletin 171.
be severely beaten if he is caught there, and the Strouthes, Daniel P. (1994) Change in the Real
community will treat the revenge as just. Thus, Property Law of a Cape Breton Island Micmac
the usual behavior of the killer is simply to avoid Band.
the family territory of his victim for as long as
he lives, and thus the social peace is preserved.
At the same time, the family of the victim gains
some satisfaction in that everyone in the com-
munity is constantly reminded of the killing,
because the killer is always avoiding part of the Fissioning is the split-
community in his travels, and thus the killer is FISSIONING ting of a community.
ostracized by other members of the community Fissioning occurs when
as long as he lives. Further, the killer is disgraced the groups that form a community separate com-
by being obliged to avoid a part of the com- pletely to form new communities or when one
munity for the rest of his life; in other words, he group moves away and forms a new community
behaves as a coward, and his loss of face is or joins another community. The opposite of fis-
permanent. sioning is fusion, which is the formation of a
community through the joining together of two
See also HOMICIDE; WAR. or more previously independent groups or the

QQ
oo
 FISSIONING

expansion of a community through the arrival or ongoing disputes or disputes that threaten the
of a formerly separate group. survival of the community. The Mbuti of cen-
Fissioning occurs in a number of cultures tral Africa have both internal and external fis-
for a variety of reasons, including better eco- sioning. In the internal form, families who are
nomic opportunities elsewhere, population ex- not wanted are isolated within the camp, as the
pansion that makes the group too large to survive other groups build their huts apart from the un-
on local resources, and disputes or the threat of desirable group. External fissioning generally
disputes that disrupt social cohesion within the occurs when disputes disrupt the cooperation
community. In non-Western cultures, the groups needed in hunting and the community then splits
that form a community (village or band) are kin- into two separate groups or one group leaves and
ship groups such as lineages or families and are joins another band. Among the Yanomamo of
often linked to one another politically, socially, Brazil it is a combination of group size and vio-
and economically. Thus, fissioning is not just lent disputes or the likelihood of continual vio-
moving away, but might also involve severing lence that leads to fissioning. The Yanomamo
ties between groups and establishing ties with live in circular villages with men and women
new groups. However, fissioning does not al- encouraged to marry others from the same vil-
ways result in the severing of all ties and, in fact, lage, and with new groups added through fu-
in some cultures it can be a mechanism that cre- sion. Large villages are preferred and important
ates cultural cohesion and greater cooperation because some Yanomamo groups are in a con-
between groups. For example, Tiv compounds tinual state of war with other groups, and the
in Nigeria often fission after the death of the larger the village the less likely it is that it will
compound head, especially when there are dis- be attacked and the more successful it will be in
putes about succession or the cause of death, or attacks on other villages. However, when the vil-
when some families are dissatisfied with the new lage grows to between 100 and 150 residents,
head. Sometimes, all the families will separate disputes and especially fights and club duels over
and settle elsewhere, although more often only women and extramarital affairs become so com-
one family leaves. The families continue to farm mon that the internal order of the village is
together, or as the Tiv say, they are "sitting sepa- threatened and weakens the effectiveness of the
rately" but use "one field." men of the village as a military force. When the
Among the San of Botswana, families con- threat of internal disorder or actual disorder
tinually leave a band to join new ones. While reaches this point, the village fissions. Some-
unresolved disputes are sometimes the reason for times, the village will separate in half and each
leaving, more often it is simply a desire to live group will establish separate gardens near one
elsewhere or because food is more plentiful else- another so that they can support each other in
where. This continual movement of families cre- raids on and by other villages. At other times,
ates ties among different San bands that help when the disruption is too great, one small fac-
unite them together as a single culture. tion will leave and establish a new village or join
As a form of conflict resolution, fissioning another existing village.
is quite common around the world, with at least
See also FACTION.
some fissioning taking place after disputes in 78
percent of a sample of sixty-four cultures. It is
usually the group that is unhappy with the out-
come of the dispute that moves away. In gen- Bohannan, Paul J. (1957b) Tiv Farm and
eral, fissioning occurs only in response to serious Settlement.

89
FRAUD

Chagnon, Napoleon A. (1968) Yanomamo: The have not been examined, verified, and branded,
Fierce People. shall be punished as if it were an illegal manu-
facture with 40 blows.
Ross, Marc H. (1983) "Political Decision-
Making and Conflict: Additional Cross-
Cultural Codes." Ethnology 22: 169-192.
The Chinese Government. (1887) A Chapter of
Tanaka, Jiro. (1980) The San Hinter-Gatherers
the Chinese Penal Code.
of the Kalahari. Translated by David W.
Hughes. The Law Codification Commission. (1919) The
Criminal Code of the Republic of China (Sec-
Turnbull, Colin M. (1965) Wayward Servants:
ond Revised Draft).
The Two Worlds of the African Pygmies.

Fraud is the practice of

FRAUD deceiving another party
Since law itself is cultur-
so as to cause him or her
a loss and is prohibited by law. One type of fraud FUNCTIONS or ally relative, it should not
involves the use of incorrect weights and mea-
LAW be surprising to find that
ideas on its function also
sures in trade so as to cheat the other party in a
differ from group to group and even individual
business transaction. Another type of fraud is
to individual. According to the anthropologist
counterfeiting. Fraud is recognized and prohib-
E. A. Hoebel (1954: 275), the law has four
ited by most legal systems. Following are stat-
functions:
utes from the Qing Dynasty and the Chinese
Republic regarding fraud. Note how the Chi- 1. To maintain orderly relations between mem-
nese Republic used incarceration as a common bers of society so that social integration may
sanction, whereas the government previous to be maintained.
it, the Qing Dynasty, preferred to use beatings. 2. To select an authority who will choose prop-
erly how to apply force to the end of main-
Chinese Republic taining order.
Article 204. Whoever counterfeits or fraud- 3. To adjudicate actual trouble cases.
ulently alters any current coin, paper money, 4. To change relations between members of
or bank-note with the intent that the same
society as social and cultural conditions
may be put into circulation as standard cur-
rency, shall be punished with imprisonment for
change, this adaptability makes law better
life, or with imprisonment for a period of not able to accomplish its other functions.
less than five years, or with both imprison-
ment for life and a fine of not more then three Across cultures, these basic functions are
thousand yuan, or with both imprisonment for manifested in a variety of ways. Among the
a period of not less than five years and a fine Barotse of Zambia, in Africa, the purpose of law
of not more than three thousand yuan. as conceived of by the legal authorities in that
society is to allow the parties to a dispute to con-
Qing Dynasty tinue to live together, and to be able to carry out
Anyone using weights, measures, or scales their mutual social obligations to each other. In
on the market, which, though being accurate, doing this, the court aims to employ the use of

90
 FUNDAMENTAL LEGAL CONCEPTIONS

ethical principles in determining the law in each In 1923, Wesley New-

case. The legal authorities do not assess the law FUNDAMKMAL comb Hohfeld proposed
only on the basis of abstract principles and pre- LKCJAL four legal conceptions
cedents, but actively try to make the outcome COXCKPTIOXS that have become widely
just. accepted as basic to an
For theorists of Natural Law, the ultimate understanding of all legal relationships. His con-
function of law is to preserve society, and this is ceptions were in the form of pairs of jural oppo-
done by preserving peaceful relations among the sites (also called jural correlatives). All jural
people. The law thus seeks to prevent societal relations fall into sets of pairs; one party cannot
fragmentation, so as to keep the society whole. be characterized by one-half of a pair without
The reason for this is to help the society survive. some other party being characterized by the
If a society does not have a sufficient number of other half. They are as follows:
people who can coordinate their efforts to de-
1. Demand right versus duty. This may be
fend a society, then it follows that another soci-
more easily understood simply as right ver-
ety with the ability to cohere and to raise an army
sus duty. Legally speaking, this is a relation-
can defeat the society that does not have that
ship of behavior that must be followed. A
ability. Similarly, a society with the ability to
legal right is the legal expectation that some-
cohere and to coordinate its population enough
one else will behave toward me in a certain
to raise an army or militia can more readily de-
way. A duty is the expectation that I must
feat internal threats to the survival of the soci-
behave in a certain way to another person or
ety, such as terrorist groups or secessionists.
else I will be punished by the law. A worker
See also NATURAL LAW. who works for an employer has a right to be
paid for his work, and the employer has a
duty to pay him, for example. A man who
enters a store and gives the storeowner the
Gluckman, Max. (196Sa) The Ideas in Barotse price of a sweater has a right to have the
Jurisprudence. sweater, and the storeowner has a duty to
give it to the purchaser. An owner of a shirt
Grotius, Hugo. (1925 [1625]) De Jure Belli ac has the right to wear it as he wishes, and
Pads Libri Tres. Translated by Francis W. everyone else has the duty to allow him to
Kelsey. do so. An owner of a car has the right to
Hoebel, E. Adamson. (1954) The Law of Primi- alienate it (to sell or to give it to whomever
tive Man. he chooses), and the buyer has the duty to
pay whatever price the owner agrees to.
Pufendorf, Samuel von. (1927 [1682]) De Officio
2. Privilege right versus no-demand-right.
Hominus et Civisjuxta Legem Naturalem Libri This maybe more easily understood as privi-
Duo. Translated by Frank Gardner Moore. lege (or no duty) versus no right. Legally
Seidler, Michael. (1990) Samuel Pufendorf s On speaking, this is a legal relationship in which
the Natural State of Men. Translated and an- a person may behave in a certain way if he
notated by Michael Seidler. or she wishes to do so, and someone else
has no right to stop him or her. A factory
Whewell, William. (1853) Grotius on War and worker, for example, has the privilege of
Peace. Vol. I. taking a workday off for illness, and the

91
FUNDAMENTAL LEGAL CONCEPTIONS

employer has no right to fire him, refuse to other party. Party B has no ability to create
pay him, or treat him differently An army a liability in party A. For example, a univer-
general has the privilege of eating in the sity may have an immunity against the pay-
officer s mess, while a private has no right ment of property taxes, whereas a city or
to eat there. The president of the United state has a disability to tax it. The president
States has the privilege of granting pardons of the United States has, as a diplomat, im-
for criminal convictions, but a convicted munity from the criminal laws of another
criminal has no right to demand a pardon. country, and the police force and courts of
3. Power versus liability. Power means that another country have a disability to arrest
party A can initiate a right with respect to him or to try him for a crime.
party B. Party B has liability, meaning that The value of Hohfeld s jural correlatives is
he or she is possibly subject to a duty im- that they may be used to help analyze, and to
posed upon him or her by someone else. For clarify in our own minds, the often complex and
example, the United States government has multifaceted legal relationships between the vari-
the power to draft men for military service, ous parties in all types of legal cases.
and men in the United States have a liabil-
ity to serve in the military when drafted.
4. Immunity versus no power. This may be Hohfeld, W. N. (1923) Fundamental Legal Con-
better understood as immunity versus dis- ceptions as Applied in Judicial Reasoning and
ability. If A is an immune party, then A is Other Essays. Edited by Walter Wheeler
immune to any liability imposed by B, an- Cook.

92
 sense of morality as well. Morality develops
within people over time, as does its force in guid-
ing behavior. Of course, some few people never

G
develop a strong sense of morality, but it is true
that older people are more strongly guided by
their society's mores than are younger people.
We can see this very clearly in two examples.
During the Nazi regime in Germany, those run-
ning the death camps that were used to kill Jews,
Gypsies, Slavic peoples, and others whom the
Germans found offensive, discovered that older
Germans, generally speaking, could not bring
themselves to operate the machinery that killed
people. They may have disliked or even hated
those who were to be killed, but they could not
bring themselves to take their lives in cold blood.
The job of killing people in gas chambers and
by other means was given to young people, few
of whom had the moral scruples of the older
The term gerontocracy people.
GKRONTOCRACY refers to a type of gov- In a second example, Pol Pot of the Khmer
ernment in which the Rouge (Communist Cambodians) enlisted
majority of political power rests in the hands of young adults and children (some of whom were
old people; the word is derived from the Greek quite young) to carry out his orders to execute
words gerontos (old man) and kratos (rule). The political opponents of the Khmer Rouge who
United States, for example, is to a considerable had been taken prisoner. He found young people
degree a gerontocracy. Gerontocracies have the more willing to give themselves wholeheartedly
advantage that they are led by people with a great to killing for no other reason than that they were
deal of experience, people who are less likely to ordered to do so.
make rash or impulsive decisions or to make The Micmac Indians of eastern Canada tra-
decisions without gathering all the necessary facts. ditionally chose gerontocracies to lead them.
Gerontocracies are common throughout the They valued the wisdom of older men. This
world, both in technologically advanced societ- pattern changed in the 1950s and 1960s when
ies and in technologically primitive societies. the Micmac realized that they needed to be able
People know that when their leaders have a lot to communicate clearly with the federal gov-
of experience in life, they are less likely to lead ernment in Ottawa. Since clear communication
their followers in ways that might hurt them. with the government required a good knowl-
An older leader, for example, is less likely to lead edge of English, and since only younger people
his or her people to war, since he or she has prob- had this knowledge, the Micmac have in re-
ably seen war in his or her lifetime and would be cent decades been choosing younger people to
loathe to repeat it, knowing the kind of death lead them. The Micmac experience is typical of
and misery it can bring. that of many indigenous peoples around the
Societies often choose older leaders because world in recent times. In many of these societ-
they usually have a more strongly developed ies, traditional leadership practices that have

93
GUARDIAN

given authority to older and more experienced ever is left over from providing for the orphan's
members of the community have given way to needs goes to the guardian in payment for his
structures that favor younger leaders who are be- effort in working the orphan s fields and taking
lieved to be better able to deal with the com- care of the orphan. The guardian also lives in
plexities of the modern world and to manage the orphan s house until the need for a guardian
relations with outside economic and political has passed.
interests. The Yoruba guardianship relationship ceases
once the orphan either reaches puberty or mar-
ries. If the orphan wishes to become indepen-
Strouthes, Daniel P. (1994) Change in the Real dent of his or her guardian after puberty but
Property Law of a Cape Breton Island Micmac before he or she is sufficiently mature to look
Band. after his or her own property, his or her relatives
will forbid the end of the relationship. Wards
end the guardianship relationship simply by
claiming possession of their property. Boys claim
their property by the time they reach adulthood.
Girls and women claim their property by the
time they marry; since all Yoruba women
A guardian is someone marry, there is always an end to the guardian-
GUARDIAN who is legally respon- ship relationship.
sible for the care of a The guardianship of the mentally ill among
person who cannot care for himself or herself the Yoruba is handled differently. Guardians of
and, if applicable, for his or her estate as well. mentally ill persons are responsible for any dam-
The individual who is cared for in such a man- ages their wards do. Normally, the guardians of
ner is known as a ward of the guardian. People the mentally ill are doctors, and the parents of
protected by guardians may be children or people the wards pay the doctors for their care. Some-
mentally unfit to take care of their own affairs. times, however, the ill person is a ward of his or
Under U.S. law, a ward must live where directed her own parents. Dangerous mentally ill persons
by the guardian, and he or she can be prevented are made the wards of the keeper of prisons, and
by the guardian from entering into contracts. The again, it is the ward s parents who pay for his or
conduct of a guardian is subject to the direction her requirements. The mentally ill person s prop-
of the courts. erty is managed and worked by his or her own
Among the Yoruba people of Nigeria, guard- parents, and the profits produced are the prop-
ianship is not altogether different. The guard- erty of the parents. Should a mentally ill person
ian of an orphan child is the ward s nearest male recover sanity, he or she regains possession of
relative on the mother s side, and is selected by his or her property, but not of the crops on the
the head of the extended family. The head of land or any profits made by his or her parents
the extended family also supervises the guardian s while the illness was manifest.
performance of his duties. The guardians duties
are to take care of the orphan ward's needs. The
financial needs of the orphan are met from the Ajisafe, A. K. (1946) The Laws and Customs of
income from the orphan's property, and what- the 'Yoruba People.

94
 to their decisions, or at least avoid the intimida-
tion of others in making their decisions. In the
Micmac Indian society of Nova Scotia, a soci-

H
ety with headmen as rulers, it is believed by
many that a woman would not have the ability
to resist a man who wanted to physically intimi-
date her.
In some societies, headmen retain their titles
for life. This means that men who are well past
their physical prime continue to lead and to make
decisions. Sometimes these men have made their
followers respect them to such an extent that they
continue to be followed. Such men may even be
more endearing to their followers because they
have gained wisdom as they grew older. How-
ever, in some cases, once the headman has de-
clined physically, and especially if some accident
or disease has impaired his physical or mental
powers, he may be a headman in title alone.
A headman is an infor- Other members of his band may continue to
HKADMAN mal leader and authority address him as a headman, but will refuse to obey
of a band society. As an his decisions or follow his leadership. They may,
informal leader and authority, his rights and in fact, follow another man, one whom they pri-
duties do not arise from occupation of a formal vately address as headman.
office and are thus limited by his personal abili- No matter which society they are found in,
ties and qualities and by the willingness of his headmen usually, if at all possible, have many
followers to follow him and his decisions. Some children. The number of children a headman can
headmen are thus relatively weak leaders and have can be especially large in polygynous soci-
authorities, while others, even those speaking the eties. A large number of children does two things
same language but living in another band, may for the headman. First, it demonstrates that he
be ruthless dictators. Headmen, as the name im- has the wealth or the hunting and fishing ability
plies, are men. Women, it appears, are never to feed a large number of people. This is very
headmen for two reasons. Headmen live in hunt- impressive to potential followers. Second, and
ing/fishing/gathering societies, in which the more importantly, a large number of children
most vital ability is the ability to hunt and to means that he has a large number of loyal fol-
fish. If a band's members fail in their hunting lowers who will continue to be loyal to him in
and fishing tasks, which are male tasks, then the years to come. The sons, especially, will help him
band will likely starve to death. Therefore, a good implement his decisions when they grow older.
hunter or fisherman will attract followers who As well, the daughters can potentially bring their
are eager to share in his success, or at least to husbands and their own children into the band
acquire whatever knowledge and skills he has. their father heads.
Such men often become headmen. Headmen are In some societies, the title of headman tra-
also usually strong men in the prime of their lives. ditionally is passed from father to son, usually
Headmen can thus coerce others into adhering to the oldest son. The son is typically prepared

95
HEADMAN

for the position he is to assume while still young. headman. Once the majority had decided in fa-
His father tells him about the proper ways to vor of one man, a respected member of the band
lead the group and about legal cases he has had would speak on behalf of the chosen man before
to decide and the reasons for his decisions. Fur- the group, which was assembled for the sum-
ther lessons are given in the kinds of behavior mer. If there was no opposition, the man was
appropriate for the headman to engage in. But, thereafter the headman. There were only rarely
of course, sometimes a headman's first son will men who opposed the popular choice on their own
not be physically, intellectually, or temperamen- behalf, and it was considered bad form to do so.
tally suitable for the job of headman. In such A Naskapi headman must be first of all a
cases, a younger son, the headman's brother, or good hunter. When he gets too old to hunt well,
the headmans nephew will be chosen as the next he loses influence, but not his title. The head-
headman. Sometimes, the first son is chosen man must also show skill in negotiating with the
even if he is not a good person for the job of Hudson's Bay Company (to which the Naskapi
headman. In such instances, he may retain the sell their furs) and with other Naskapi. All head-
title of headman but lose his authority and lead- men are also married, and many have large num-
ership because no one will follow him or abide bers of children.
by his decisions. Again, the headman has no The Naskapi headman indicated his posi-
office, and people follow him not because of his tion by wearing a feather headdress and, later, a
title but because of his personal abilities and special coat that was given to him by the
other qualities. Often, a poor leader will cause Hudson's Bay Company. Of course, everyone
many or most of the members of the band to knew whom he was even without the parapher-
leave the area to form a new band. There are nalia, and the headman wore his special costume
also cases known in which headmen in heredi- only during the summer meetings and then only
tary systems have told their sons to refuse to ac- to request that people congregate to discuss some
cept the title, because the job of the headman is important public matter.
so difficult and time consuming, and because The primary duties of the headman were to
in some cases people become angry with the represent his band to people from the outside
headman. world and to maintain peace within his band.
One especially well described example of a The headman had his authority limited by three
headman is the headman of the Naskapi Indi- important factors. The first was that during most
ans of Labrador, Canada. The following example of the year the band was split into small hunting
is of the Naskapi headman as he was during the groups who lived in a very dispersed fashion,
first half of this century. The Naskapi headman meaning that most people could not contact the
traditionally was the first-born son of the previ- headman for assistance even if they wanted to
ous headman. If without a son, the headman's do so. Second, the Naskapi consider it unbe-
brother became headman. If neither a son nor a coming to rely on another person for help, espe-
brother was available, the next headman was cially the headman. It is much more creditable,
elected. The headman holds his position for life. they believe, to handle problems on one s own.
If there was to be an election for the next head- Third, there was a predisposition to solve one's
man, there would be a period of months between disputes on one's own. This is because the people
the death of the former headman and the elec- had to rely upon one another in the harsh envi-
tion of a new man. During this period, people ronment, and so they were very quick to smooth
would think about and discuss their choices for over most social problems.

96
 HOMICIDE

believe they can kill another individual or be

Hamilton, W. D. (1984) The Julian Tribe. killed by these means. For example, the Kapauku
of New Guinea use witchcraft and sorcery to
Lips, Julius E. (1947) "Naskapi Law." Transac-
kill enemies, who are usually people from other
tions of the American Philosophical Society
communities, but sometimes also from one's own
37(4): 378-492.
village. In one case, a Kapauku groom died
Strouthes, Daniel P. (1994) Change in the Real shortly after his wedding and the death was at-
Property Law of a Cape Breton Island Micmac tributed to the actions of a jealous sorcerer. The
Band. sorcerer was judged guilty by the village leader
and executed by the victim's older brother.
In most cultures the norms that govern so-
cial behavior and the legal system delineate dif-
Homicide is the killing ferent types of homicide. The three criteria used
HOMICIDI; of a human being by an- most often to differentiate among types of ho-
other human being. micide are intent, premeditation, and the close-
Murder is the criminal killing of a human be- ness of the relationship between the murderer
ing; criminal acts are legal offenses against a so- and the victim. Intent means that the killer
ciety. But killing a human being can involve more wanted the victim to die. Premeditation means
than just criminal repercussions. There may be that the killer thought about killing the victim
a taboo against killing a human being; if so, the before acting and planned the homicide. Close-
killer may expect to receive supernatural pun- ness means whether the killer and the victim
ishment for the killing. Killing a human being were blood relatives, relatives by marriage, neigh-
can also be a civil offense, and the family of the bors, members of the same community, mem-
murdered person may have a legal claim against bers of the same society, or members of different
the murderer for killing one of their number, for societies.
loss of services and income, among other things. Western legal systems differentiate on the
While Western conceptions of homicide basis of intent and premeditation (as in legal
usually assume that some direct physical action concepts such as manslaughter, murder, homi-
such as shooting, stabbing, poisoning, hitting cide, etc.) and also differentiate on the basis of
with vehicle, etc., must occur for a homicide to relationship, as indicated by the use of specific
take place, in many cultures homicide may also words for certain types of homicide such as
take place through witchcraft or sorcery. That infanticide, matricide and patricide, and
is, an individual calls upon supernatural forces gerontocide. Western legal systems also differ-
to kill another individual, usually through mak- entiate on the basis of the status and role of the
ing them ill or by causing them to have an acci- victim in the community. For example, assassi-
dent. In cultures where people use witchcraft or nation refers to murder of a public official for
sorcery to harm others, it does not matter political purposes, while the punishment for kill-
whether or not witchcraft or sorcery genuinely ing a police officer is often more severe than the
causes a person to die or whether it only explains punishment for killing a civilian, indicating that
a death that resulted from another cause such as killing a police officer is a more serious form of
illness or a serious injury. What does matter and homicide.
what qualifies witchcraft and sorcery as forms In most non-Western cultures, similar sets
of homicide in some cultures is that the people of rules distinguish among types of homicide,

97
HOMICIDE

although these rules may not always be codified cried out. Dumauwat recognized his voice, and
into a set of written laws. These rules are im- carried him home. He furnished animals for
portant not only because they differentiate sacrifice to secure Likyayu s recovery. Likyayu
among types of homicide and indicate which are recovered. Had he died, Dumauwat would
acceptable and which are criminal, but also be- have been called on for the full amount of the
fine; but had Likyayu been firmly engaged to
cause they determine the severity of punishment
Dumauwat s daughter, that is, had the tango
meted out to the killer. For example, the Ifugao
ceremony been performed, the full amount of
of the Philippines recognize four types of ho- the labod fmz would not have been demanded,
micide and have different levels of punishment since the relationship would have been an ex-
for each (Barton 1969, [1919]: 78): tenuating circumstance.
(d) The taking of life by persons in a brawl
(a) The taking of life when there is an or by an intoxicated or insane person. In case
entire absence of both intent and carelessness. the slain died before his slayer could agree to
As for example... when a party of hunters have provide animals for sacrifice, the latter would
a wild boar at bay. The boar . . . charges the probably be killed by the kin of the slain if he
most advanced of the hunters, and in retreating were of a foreign district. He might be killed
backwards, the latter jabs one of his compan- if a non-related co-villager. He would be fined
ions with the shod point of his spear handle. the labod if & kinsman. He would probably go
There is no penalty for such a taking of life. scot free if a brother or uncle.
(b) The taking of life when there is clearly
an absence of intent, but a degree of careless- The Ifugao also differentiate attempted murder
ness. For example, a number of men are throw- from actual murder, with punishment again in-
ing spears at a mark. A child runs in the way, versely related to the closeness of the relation-
and is killed. The penalty is a fine varying from ship of the murderer and the intended victim.
one-third to two-thirds the amount of the full In many cultures, whether or not the killer
fine for homicide according to the degree of
and victim are kin or are members of the same
carelessness.
political community is a major consideration in
(c) Intentional taking of the life of an-
other, under the impression that he is an en- determining whether a homicide is considered
emy when in reality he is a co-villager or a a crime. For example, the Kapauku consider the
companion. In case the killer can make the premeditated murder of a member of one's own
family of the slain understand the circum- kin group or political confederacy a crime and
stances, only a fine is assessed. This fine is execute the killer. However, killing a member of
called labod. If the killer be unrelated to the another confederacy is not considered a crime
slain, the full amount of the labodis demanded: and the killer is not punished, although it might
if related, the amount is usually lessened. lead to a war between the confederacies. Because
Example: Dumauwat of Baay was irrigat- the killing of a close relative is an especially se-
ing his fields at night. Some of his com- rious offense in many cultures, those who kill
panions told him that there were some
their children or parents or any close kin in kin-
head-hunters from an enemy village near. In
based cultures are often thought to be insane,
the darkness, Dumauwat encountered another
man, Likyayu, the betrothed of his daughter. which sometimes though not always excuses
He asked him who was there. On account of their behavior and forestalls punishment. For
the noise of water falling from the rice fields, example, among the Ona a woman who kills her
Likyayu did not hear the inquiry, and said infant is considered insane and the behavior ex-
nothing. Dumauwat speared him. Likyayu cused. Among the Dogon, "the murderer is an

98
 HOMICIDE

unfortunate person, the object of pity as much mass murder

as of repulsion, who could only act as he did at a the killing of a number of individuals at the
moment when an unknown force dominated same time in the same place usually by one
him" (Paulme 1940: 113). However, a Dogon individual
murderer does not escape punishment and is
banished from the community, often for life, matricide
with his wife allowed to remarry and his prop- the killing of a mother by her child
erty divided among his relatives. The murderer
is considered to be dead. parricide
Criminologists and others who study ho- the killing of a parent by his or her child
micide often distinguish among different gen-
eral types of homicide, some of which are serial killing
listed below: the killing of a number of individuals over a
period of time by one individual
assassination
the killing of a political leader or other im-
spousal homicide
portant public figure for a political purpose
the killing of an individual by a spouse
capital punishment
the killing of a criminal that is approved of suicide
by the political community killing oneself

familicide terrorism
the killing of an entire nuclear family by a the killing of civilians by a political group
member of the family, usually the husband/ for a political purpose
father who then kills himself
The supernatural sanctions against murder
feuding (blood revenge) are in many societies the strongest of all super-
after a homicide, the killing of the murderer natural sanctions. Among the Cheyenne Indi-
or a member of his kin group by the kin of ans of the Great Plains, the killing of a Cheyenne
the victim by another Cheyenne would cause the sacred
arrows of the tribe to become polluted. The sa-
filicide cred arrows are the supernatural center of the
the killing of a son or daughter by a parent tribe, and when they have been polluted bad luck
of a supernatural origin could be expected for all
fratricide the tribe. Two kinds of misfortune were particu-
the killing of a brother by a brother larly expected and feared: game would disappear
from the area, leading to starvation, and the
gerontocide Cheyenne would lose in their battles with their
the killing of the aged enemies, costing the Cheyenne the lives of many
of its people. The Cheyenne could end the su-
infanticide pernatural stain on the arrows through a re-
the killing of an infant, usually by a parent, newal ceremony, but the murderer remained
a relative, or with the parents' approval polluted for the rest of his or her life and could

99
HOMICIDE

not attend any arrow renewal ceremony or come the usual means of preventing future homicides.
in contact with any other Cheyenne individuals Moreover, the kinsmen of the slain man could
eating or smoking utensil without polluting it. take his revenge upon any of the kin of the killer,
In many societies, it is legal, and even ex- and not only upon the killer himself. This made
pected, that the kin of the murdered victim will it doubly difficult to kill, since a potential killer
receive compensation for the death from the would have to deal with his own angry kinsmen
killer or from the kin of the killer. In many soci- (who would be potential victims of retaliation)
eties, it is likewise legal and expected that the if he decided to take a life. Normally, however,
kin of the murdered person can kill the mur- the killer and his kinsmen try to arrange a peace-
derer in revenge. ful end to the whole affair by paying the kin of
Homicide is not always criminal or even il- the slain person compensation for the death.
legal. During times of war, it may even be a After a man killed another, he would nor-
criminal offense for a soldier not to kill mem- mally try to get to the house of the Leopard-
bers of the enemy forces. The person who car- Skin Chief, a man who acts as a mediator in
ries out the sentence of one who has been given such matters. As soon as the killing has taken
the death penalty is certainly considered no place, a feud between the kin of the slain and
criminal. Also, there are in all societies of which the kin of the killer exists, but once inside the
I am aware circumstances under which a person Leopard-Skin Chiefs house, the killer cannot
might kill another with no legal repercussions, be harmed by the kin of the man he killed. Some-
including killing in self-defense (or, as it is of- times, the killer s entire family will also live in
ten termed in Western law, justifiable homicide). the house for protection. The killer must ob-
Under traditional Cheyenne Indian law, serve a taboo of not eating or drinking until some
homicide was not considered illegal if it occurred of his blood has been let by the Leopard-Skin
under one of the following four circumstances: Chief. Then a bull calf is slaughtered in a ritual.
1. To defend against incestuous rape. The Leopard-Skin Chief will then attempt
to negotiate a settlement for the homicide by
2. To rid society of a repeated murderer.
appealing to the kin of the slain man. Usually,
3. When necessary for the military police to the kin of the slain are willing to accept a settle-
carry out an important function. ment, since they gain financially by it and would
4. When accidental. gain nothing if they simply killed in retaliation.
The negotiations are a fairly drawn-out affair
Killing was considered less of an offense if it oc- and require the sacrifice of several cattle. The
curred under conditions of drunkenness, provo- total cost of compensation for most types of kill-
cation, or an apparent need for self-protection. ing is forty head of cattle. These include the
Among the Nuer of the Sudan, in Africa, payment to the Leopard-Skin Chief for his ef-
homicide was traditionally always treated as a forts and payments to some of the kin of the
civil offense. This was due in large part to the deceased, especially his father and mother, as well
absence of a centralized political and legal ap- as maternal and paternal uncles. However, the
paratus; in short, there was no authority who majority of the payment goes to the deceased
could punish a man who killed another. man's heir for the purpose of paying the bride-
Homicide among the Nuer carried with it a price of the deceased man. The deceased man's
genuine threat of prolonged blood feud. The kin wife will then bear children who are biologically
of the slain had a duty to avenge the death of those of another man, but who are legally the
their kinsman, and the threat of retaliation was offspring of the deceased. The Nuer consider it

100
 HOMICIDE

very important that the lineage be continued, The killing of a woman is compensated at
and this is the reason for this practice. The com- the same rate as for men, but it is her family (if
pensation is paid by the killer and his kin. she is unmarried) or her husband (if she is mar-
The two sets of kin are expected to observe ried) who receives the compensation. If a mar-
taboos against eating and drinking together and ried woman commits homicide, it is her husband
intermarrying, and this taboo can last for gen- who must pay compensation, and not her or her
erations, even if the civil offense has been peace- family. A woman could not be killed in the pur-
fully settled. The supernatural sanction for suit of revenge for a killing or in a blood feud.
violating the taboo is a bout of painful diarrhea. Witches, ghouls, and werewolves could be
Under Nuer law, a death caused by another killed without having to pay compensation. Kill-
person is a homicide no matter what the cir- ing a person who had the evil eye was compen-
cumstances. However, Nuer law recognizes de- sated at the rate of only six cattle.
grees of homicide, and they are reflected in the An unmarried woman who died in child-
rates of compensation paid. The degree of in- birth was considered the victim of homicide by
tention is a key factor, for example. The Nuer the man who impregnated her, and he had to
believe that the weapon with which a man kills fully compensate the death.
another indicates the degree of intention, and
See also CAPITAL PUNISHMENT; FEUD.
they figure compensation on that basis. If a man
is killed accidentally, then the one responsible
for the circumstances surrounding the death is
held accountable, but is usually made to pay only Barton, Roy F. (1969 [1919]) Ifugao Law.
a token compensation. An example would be if Howell, P. P. (1970 [1954]) A Manual of Nuer
a man died because of a fall while working for Law: Being an Account of Customary Law, Its
another man; the employer would pay a com- Evolution and Development in the Courts Es-
pensation of grass and rope. tablished by the Sudan Government.
The honesty of the killer also comes into Llewellyn, Karl N., and E. Adamson Hoebel.
play in degree of culpability. If the killer denies (1961 [1941]) The Cheyenne Way.
that he committed a homicide, then he has com-
Palmer, Stuart. (1965) "Murder and Suicide in
mitted a second offense and will be forced to
Forty Non-Literate Societies." The Journal of
pay a greater compensation.
Criminal Law, Criminology, and Police Sci-
If a man causes another a wound that kills
ence 56: 320-324.
him within a period of approximately one year,
then the one who inflicted the wound must pay Paulme, Denise. (1940) Social Organization of
full compensation. If the wound causes death the Dogon. Translated by Frieda Schutze.
after several years or more, the compensation to Pospisil, Leopold. (1958) Kapauku Papuans and
be paid is reduced. Their Law.

101
 the man s property was given away as a stylized
means of showing the family's grief at having
lost someone so important and dear to them,

I
and to purify the family of the supernatural pol-
lution caused by the death. It sometimes hap-
pened that the man's widow, brothers, and father
gave away their own belongings as well, as part
of their mourning.
A man could also give his property by means
of a will, though the will was oral and not writ-
ten as in modern U.S. legal practice. Most of
the men who did this were old or ill and foresaw
the nearness of their deaths. All of the wills made
gave the man's property to family members. It
was typical that these wills gave most of a man's
horses to his daughters, since it was felt that the
sons had the ability to get their own horses by
raiding. The man's oldest son usually executed
the will unless the widow decided upon another
Inheritance is tranfer- male as executor.
INHKUITANCK ance of rights in real or The property of an unmarried man who died
personal property to was handled in a like manner by his parents. He
one's heirs according to the laws of testamen- was buried in his finest clothing, and his horse
tary and intestamentary succession. In other was killed and placed on his grave. His parents
words, the laws of inheritance deal with the dis- gave away the rest of his property to people who
position of the property of a deceased person. were not related to him. If he died in a battle as
Inheritance may occur by either intestamentary a result of injuries caused by the enemy, the dis-
succession (descent) if there is no will, or by tes- position of his property was somewhat differ-
tamentary succession (devise) if there is a will ent, however. A portion of his property was kept
and if its provisions deviate from the laws of by his parents and then given to another man,
intestamentary succession. The law also some- usually the deceased's best friend, as an obliga-
times places limits and conditions upon both the tion for him to take an enemy's scalp and thereby
form and the content of a will. to please the deceased man's father.
Among the Cheyenne Indians of the Great Among the Naskapi Indians of Labrador,
Plains, the traditional laws for intestamentary the most valuable and important property a per-
succession were that all of a mans property that son has to leave to an heir is the right to hunt in
was not buried with him was to go to his widow. a hunting territory, because this is the main
If she wished to behave in an ideal Cheyenne source of wealth and food in Naskapi society. In
widow's fashion, she would then give the rest of cases of intestamentary succession, the oldest son
her husband's property to people who were not inherits his father's hunting rights as well as all
related to him. Buried with the man were a set of the apparatus his father had used in hunting
of his best clothing, his weapons, pipe, and other and trapping. If the oldest son is too young to
personal belongings, and his best horse, which hunt and trap, the deceased man's property goes
was killed and placed over his grave. The rest of to his widow until the son is old enough to make

103
INHERITANCE

use of them. However, if the oldest son was born The sequence of heirs in Micmac law con-
elsewhere and a younger son was born on the flicts with that of the federal Canadian Indian
father s hunting territory, the one born on the law, as expressed in the statutes of the Canadian
hunting territory inherits it from the father. Indian Act. According to that act, real property
If the deceased dies without any sons, all of that is lawfully possessed is part of the possessor s
his property goes to his widow. When she dies, estate and is to be divided between the remain-
the property that was once her husband s is in- ing spouse and the offspring. This means that
herited by her oldest daughter and her oldest the widow or widower may be without a house
daughter s husband. If the couple had no chil- in which to live. This legal sequence of heirs re-
dren, the property goes to the widow s brothers flects modern Canadian and U.S. law, which is
after she dies. If she has no brothers, the prop- designed to protect the interests of the offspring
erty goes to the husband's brothers. Next in line before the interests of anyone else. The result
to inherit are the husband's nephews and then has all too often been, among the Micmac as
his sisters. If a family line completely dies out, well as other Canadian Indians, that a father or
the hunting territory goes to the band, which then a mother has been evicted from the house in
redistributes the land to other band members. which he or she lived by his or her own chil-
A Naskapi man may use a will to give some dren. For this reason, the Indian Act was
of his personal property to whomever he wishes amended to allow the Minister of Indian Af-
after he dies. This will is oral and is communi- fairs and Northern Development to grant per-
cated to the wife, oldest son, or daughter. The mission for the widow to occupy the house in
only guarantee that the deceased has that the which she and her husband lived at the time of
provisions of the will are to be enforced is that his death. There is no similar protection for men.
of supernatural sanction. Bad luck is said to come Among the Micmac, most people do not have
to a whole family if it neglects the instructions lawful possession of the land upon which they
of a will. reside, so this provision of the Indian Act does
Among the Micmac Indians of Nova Scotia, not apply to them. Those who occupy the land
the laws regarding intestate inheritance are quite simply follow traditional Micmac law on this
similar to those of the Naskapi. However, among point and allow the remaining spouse to "own"
the Micmac both men and women may own real the house (the Micmac conceive of this interest
property, although it is usually men who do so. as ownership, no matter what the federal Indian
If either spouse should die before the other, the Act says), the land, and all personal property of
remaining spouse becomes the sole owner of the the deceased spouse.
real and personal property of the deceased. When If there is no spouse and no offspring, the
the remaining spouse dies, all of the property of Micmac may rely upon wills to leave their prop-
both parents normally goes to the oldest child erty to a niece, nephew, or an offspring of a niece
regardless of sex. It is believed that the oldest, or nephew. Wills can also be used to invalidate
whether a man or a woman, has the best ability the normal sequence of heirs in intestate suc-
to take care of the needs of the younger offspring. cession. Wills are usually oral and are commu-
Of course, the remaining parent has the right to nicated to other family members. It is up to those
do with the property whatever he or she wants family members, however, to observe the provi-
while alive, but it is considered proper for the sions of the will, and this is not always done;
property to pass on to the oldest offspring. sometimes, there is even a fight over the prop-

104
 INHERITANCE

erty, with victory going to the strongest or the 1). On October 26,1908, Ramdas was adopted
most cunning. It is frequently the case that the by Dhondubai, the widow of a near relative.
remaining spouse will use a will to leave his or In 1920, the plaintiffs sued as heirs to
her house and land to a grandson or granddaugh- Ramdas to recover possession of the property
from the defendants. They alleged that even
ter, because their own children are fully grown
after his adoption Ramdas was in possession
and established with their own families and
of the property in his natural family but that
houses by the time they die and have less need
defendants Nos. 1 to 5, who were children of
of material assistance than do grandchildren. the sisters of Ramdas, dispossessed him in
As the situation involving the Micmac sug- 1910 and 1914.
gests, inheritance law is quite complicated and The defendants by their written statement
decisions are influenced by a mix of sociocul- contended that the suit property was given in
tural considerations. The following is a legal gift to the father of defendants Nos. 1 to 3 by
decision from 1924 in India on the subject of Ramdas in 1898 and that they had become
inheritance as it may be affected by adoption owners of it by adverse possession: that nei-
according to Hindu law (The Indian Law Re- ther Ramdas nor plaintiffs Nos. 1 and 2 were
ports, Bombay Series, 1925: 520-526). the heirs to Narsidas's property but defendants
were the heirs: that it was so held in previous
litigation between the same parties and hence
APPELLATE CIVIL. the present claim of the plaintiffs was barred
as resjudicata.
Before Sir Norman Macleod, Kt., Chief justice,
The trial Judge held inter alia that the de-
and Mr, justice Crump MANIKBAI kom
fendants were the Heirs of Narsidas after the
VISHNUDAS GUJJAR and another (Origi-
adoption of Ramdas: that Ramdas had made
nal Plaintiffs), Appellants v. GOKULDAS
a gift of the suit property to defendant No. 3s
RAMDAS KARADGI and others (Original
father: that defendants Nos. 1 to 4 were not
Defendants), Respondents.
in adverse possession for over twelve years be-
fore suit. The suit was dismissed.
Hindu LawAdoptionRights of daughter of
adopted son on adoption. H. C. Coyajee, with A. G. Desai, for the
appellants.
The adoption of a married Hindu, the sole Nilkanth Atmaram, for the respondents.
owner of ancestral property acquired by
survivorship on the death of his father, does MACLEOD, C. J.:The plaintiffs sued
not deprive his daughter of her right to inher- to recover possession of the plaint property
itance to that property. after a declaration that plaintiff No. 1 was the
The rights of a daughter on the adoption owner or, in the alternative, if plaintiff No. 1
of her father considered. was not an heir, that plaintiff No. 2 should be
This was an appeal against the decision declared the owner.
of N. K. Bapat, First Class Subordinate Judge It was alleged that the property originally
of Bijapur, in Suit No. 327 of 1920. belonged to two brothers, Narsidas and
Suit to recover possession. Shankerdas, but it has been found by the Court
The suit property belonged to one Nar- below, and that finding has not been disputed
sidas, who died in 1883, leaving him surviv- in this Court, that the brothers were not in
ing his son Ramdas. Ramdas has a wife union, and so the following pedigree will be
(plaintiff No. 2) and a daughter (plaintiff No. sufficient for the purposes of his appeal... .

105
INHERITANCE

The property was held jointly by Narsidas the daughters of Narsidas and are his heirs
and his son Ramdas. Narsidas died in 1883. preferable to plaintiff No. 1 or plaintiff No.
Ramdas was adopted in 1908 by one Bhag- 2". He had some justification for so holding,
wandas, a first cousin of Narsidas. At the time as in Ramchandra v. Manubai, Ramdas at-
of his adoption Ramdas had a wife, plaintiff tempted to execute a decree obtained by his
No. 2, and a daughter, plaintiff No. 1. father. The case came up to the High Court
The plaintiffs claim that they were en- when it was held that Ramdas by his adop-
titled to the property originally owned jointly tion lost all rights in his father's estate which
by Narsidas and Ramdas, as against the de- thereafter went to the heirs of Narsidas. The
fendants who are the grand-children of judgment-debtor was the only party to the
Narsidas by his daughters, Radhabai and proceedings, and rights of the present plain-
Ratnabai. tiff No. 1 as daughter of Ramdas were never
It was decided in Kalgavda Tavanappa v. taken into consideration. It would have been
Somappa Tamangarda that when a married sufficient for the Court to decide that Ramdas
Hindu having a son is given in adoption, the was incompetent to execute the decree with-
son does not like his father lose the gotra and out going on to say in whom the right to ex-
right of inheritance in the family of his birth, ecute lay. In any event plaintiff No. 1 is entitled
and does not acquire the gotra and right of to raise the point in the present suit, the ques-
succession to the property of the family into tion is not resjudicata, and the dictum of the
which his father is adopted. It was also held High Court being obiter must at the best be
that when a married Hindu is given in adop- treated with the respect usually attached to
tion his wife passes with him into the adopted such dicta.
family because according to the Shastras hus- The trial Judge says: "By his adoption
band and wife form one body. The 2nd plain- Ramdas lost all rights of inheritance in his
tiff, therefore, can in no case succeed. But the natural family as completely as if he was never
rights of a daughter in the event of her father born in it. Inheritance must be traced from
being adopted have, as far as we can ascertain, the previous male holders".
not being considered either in the texts or re- It is true that his right to the property of
ported cases, neither have they been discussed his adoptive family accrued as if he had been
by any of the writers on Hindu law. It is not born in it, and it is equally true that he lost all
surprising that the texts are silent on the ques- rights to the property of his natural family. But
tion as in olden times the adoption of a mar- I think the Judge is led into a fallacy by using
ried man having children would be repugnant the words "rights of inheritance" without re-
to orthodox Hindu customs. gard to the varying circumstances which may
The trial Judge has taken it for granted exist in different cases. If Narsidas had been
that the main issue was "Who was the heir of alive in 1908 Ramdas would have lost all rights
Narsidas after the adoption of Ramdas?", and to the family property which he had as co-
it cannot be disputed that the defendants were parcener, and all rights to succeed to any self-
never heirs to Narsidas than plaintiff No. 1. acquired property of Narsidas. The adoption
Para. 12 of the judgment says: "After would have put an end to those rights in the
Ramdas left the family by adoption same way as if he had died, but it is quite un-
Ekambribai was the heir of Narsidas to whom necessary to add a further fiction "as if he had
the property belonged and she lived in the never been born in the family".
house till her death which took place on Sep- It is unfortunate that when we get within
tember 12,1912"; and para. 75 says: "the prop- the realm of fiction the ordinary rules of logic
erty in dispute belonged to Narsidas. no longer apply. If the adopted son is to be
Defendants Nos. 1, 2, 3, 4, and 6 are sons of considered as having been born in his adop-

106
 INHERITANCE

tive family, the ordinary result should follow Narayan v. Sabramanya Shieram, that the suit
that he takes the whole of his family then in property was not the estate of the natural fa-
existence into the adoptive family, but as I have ther within the meaning of the above men-
pointed out above he does not take his sons tioned text, and therefore the son was divested
with him, and presumably his unmarried of it on adoption. Consequently the question
daughters are left behind as well. There can who would succeed to it if he were divested
be no difficulty with regard to the rights of did not arise. But I expressed the opinion that
the son in his father's property. If father and then the heir of the defendant at the time of
son are joint the son on his father's adoption his adoption would have had to be ascertained
succeeds by survivorship. If there are other co- as if he were dead.
parceners the result is the same. If there is a In Dattatraya Sakharam v. Govind
daughter unmarried she is entitled to mainte- Sambhajiy also the question was not decided
nance and marriage expenses. The difficulty as the mother of the adopted son was the heir
arises when the adopted son is the sole owner of her son and also of the father.
of ancestral property as Ramdas was. If he is Though there is an objection to referring
to be treated as having civilly died in the natu- to an adopted son as civilly dead in his natural
ral family when he was adopted, the property family (cf. Sri Rajah Venkata Narasimha Appa
should go to his heirs, as he was the last male- Row v. Sri Rajah RangayyaAppa Row\ I can-
holder, and not to the heirs of his father. If in not see myself that there is any reason in this
1908 he had died a natural death, undoubt- case for holding that the property should go
edly plaintiff No. 1 would have been his heir- to the heirs of Narsidas and not to the heirs of
ess, and if he is to be treated as dead by a Ramdas.
fiction, there can be no possible reason for de- In my opinion, therefore, plaintiff No. 1
parting from the ordinary rule of devolution is entitled to succeed to her father's property.
of property under the Hindu law. One result There will be a decree for possession and an
of tracing descent from the next generation inquiry as to mesne profits from date to suit
above would be, that if Narsidas and his with costs throughout.
brother, Shankardas, had been joint, as the
plaintiff contended, since Shankardas survived CRUMP,].:I agree.
Narsidas the property would go to his heirs
and not to the heirs of Narsidas, with the re- Appeal allowed.
sult that Ramdas would have become entitled R.R.
to the property as son of Bhagwandas, his
adoptive father, first cousin of Shankardas, in
preference to his brother's son's daughter or
his brother's daughter's sons. The fallacy in the The Indian Law Reports, Bombay Series. (1925)
passage of the judgment under review lies in Vol. XLIX. Edited by K. Mel. Kemp.
the failure to recognize that Ramdas had no Lips, Julius E. (1947) "Naskapi Law." Transac-
right of inheritance to the property of Narsidas
tions of the American Philosophical Society
to lose. He had already acquired it by
survivorship. In Dattatraya Sakharam v.
37(4): 378-492.
Govind Sambhaji, it was held on the authority Llewellyn, Karl N., and E. Adamson Hoebel.
of the text of Manu, Adhyaya 1, Verse No. (1961 [1941]) The Cheyenne Way.
142, that a Hindu, the sole owner of ancestral
property, lost his right to the suit property on Strouthes, Daniel P. (1994) Change in the Real
adoption, but in the case of property acquired Property Law of a Cape Breton Island Micmac
by partition it was held in Mahableslavar Band.

107
INTERNATIONAL LAW

International law may be international law, and the U.N. has commissions
I\TI:R\ATIO\AI. defined as the law that to pursue that goal.
LA\V is used to decide disputes Another modern source of international law
between nations, or dis- is the International Court of Justice (sometimes
putes between individuals of different nations informally known as the World Court), a part
where jurisdiction by the principle of territori- of the United Nations located at The Hague in
ality cannot readily be relied upon. Since no na- the Netherlands. It has fifteen members who are
tion will always agree to relinquish its own elected by the General Assembly and the Secu-
powers of sovereignty to an external authority rity Council for definite terms. Judgments made
by being bound by its decisions, international by this court may be appealed to the United
law is not always law. In other words, each party Nations Security Council.
to the conflict must agree to abide by the deci- One example of early international law, and
sion of a court of international law for law to a theoretical and historical basis for modern in-
exist. No court of international law has the abil- ternational law as we know it today, is Roman
ity to force a disputing nation to accept its deci- law s ius gentium, or general law. The Romans
sions, especially in the matter of sanctions. developed a law called ius quiritium, which ap-
The United Nations (U.N.) is one of the plied to quiritesy or Roman citizens. It applied
modern sources of international law. It has in to disputes between two Romans no matter
recent years been attempting to acquire the abil- where in the Roman Empire they were. If two
ity to force some nations to accept its judgments non-Roman parties to a dispute originated in
whether they wish to or not. For example, after the same place within the Roman Empire, for
Iraq took control of Kuwait in 1990, the U.N. example Judea, Judean law was applied by the
first requested that member nations cease trad- Roman courts. But if the two parties came from
ing with Iraq, and later asked them to partici- different parts of the Roman Empire, say Judea
pate in an attack on Iraq. Thus, while Iraq was and Gaul, ius gentium was applied. This was a
forced to accept a decision that it did not agree body of law that the Romans developed to ap-
to accept (that it withdraw from Kuwait), the ply to different peoples in the various territories
U.N. was only able to enforce its decision with Rome had conquered. Ius gentium was made up
the voluntary help of member nations. Of course, of laws taken from various parts of the Roman
these other nations, especially the United States, Empire, although the majority of its laws were
would most likely have driven Iraqi military Roman laws from which specifically Roman fea-
forces from Kuwait whether the U.N. had asked tures had been removed.
them to do so or not. Thus, the U.N. s ability to Other theoretical foundations for modern
enforce its decisions rests upon the political will international law are as follows: (1) abstract
of a few powerful nations. reasoning, including Natural Law, (2) judicial
The U.N. does not have this kind of power precedents from earlier cases and from the deci-
in most decisions and has been generally inef- sions of courts within various nations, and (3)
fective in resolving international disputes. The custom.
United States, for example, does not ask the When legal scholars today speak of inter-
U.N. to make decisions when it has a trading national law, they speak about a social move-
dispute with Japan or a dispute over fishing rights ment that began in Europe in the seventeenth
with Canada. century and that depended initially on the fact
The Charter of the United Nations calls for that Roman law formed a common basis of law
the development and eventual codification of in all of the European nations. In the seventeenth

108
 INTERNATIONAL LAW

century, Hugo Grotius, a Dutchman, had been over the interests of indigenous tribal or band
alarmed by the destructiveness of the Thirty societies in determining jurisdiction.
Years War. He wished to reduce both the causes A second question of jurisdiction has to do
and the destructiveness of war, and to do so he with cases in which the territorial principle of
wrote a book called De Jure Belli ac Pads (The jurisdiction is unclear or conflicting, and this
Law of War and Peace). He relied upon Natural usually happens in cases that involve travel on
Law as a philosophical basis for his work. The ships. Take, for example, the case of Regina v.
principles of Natural Law and of Roman law Anderson (Great Britain, Court of Criminal
were similar, and so many of his ideas were fairly Appeal, 1868). In this case, an American man
readily understood by Europeans. These same stood accused of murdering another man while
principles were the basis for the laws of the North on a British ship, which was at the time in French
and South American legal systems. Grotius was waters. Arguments could be made on behalf of
the first to discover that all Natural Law falls jurisdiction in American courts (because the ac-
into one of two categories: either it is public law cused was American), on the basis of the na-
(the law dealing with matters of government) or tionality principle of law, in which the state
it is private law (law dealing with the private af- wishes to have jurisdiction over its own citizens
fairs of individuals). and any other people who have special ties to
A later major voice in the movement towards the state. An argument could also be made for
international law was Sir Henry Maine, who in British jurisdiction, since the offense occurred
his book International Law also sought a way to on a British ship, by the territorial principle of
make war less destructive. These movements law. However, the territorial principle could also
later bore fruit in the various Conventions of be invoked by the French, since the offense oc-
Geneva and Lausanne and many others, the curred in French waters. The British Court of
Treaties of Westphalia and many other interna- Criminal Appeal noted that the French courts
tional treaties, the Permanent Court of Inter- certainly could have tried the case, but by the
national Justice (later reconstituted as the provisions of the treaties of Ortolan, the French
International Court of Justice under the control do not claim jurisdiction over foreign vessels in
of the United Nations), the League of Nations, French waters unless requested to do so by the
and the United Nations. The actual basis for master of the ship or if the case involves a dis-
nearly all international law in the modern world turbance of the peace at a port. It is generally
of nation-states are the agreements that nations regarded in cases of this type that a ship is a
make with each other. The sovereign powers of "floating island" and is part of the nation in
the nations have acknowledged that they will be which the ship is registered. Further, one of the
bound by these agreements and, in effect, have chief principles bearing on the selection of ju-
had to relinquish some of their power as sover- risdiction in legal cases of international involve-
eign states to comply with these agreements. ment is comity. The term comity refers not to a
A critical portion of international law con- legal principle but rather to a principle of cour-
cerns jurisdiction. International courts are some- teous behavior, in which one court that could
times asked to decide which nation has claim jurisdiction allows another court, which
jurisdiction over a specific territory. These kinds could also claim jurisdiction, to try the case if it
of questions are usually answered on the basis of has claimed jurisdiction first. In the case above,
which nation has sovereignty, and laws have been the British claimed jurisdiction first, and the
established to answer such questions. The in- French courts did not try to take jurisdiction by
terests of nation-states always take precedence virtue of comity.

109
Hugo Grotius (1583-1645), Dutchjurist and author ofDe Jure Belli ac Pacis (The Law of War and Peace)
 INTERNATIONAL LAW

One of the most important parts of inter- Ratified by Norway July 10,1893
national law concerns extradition. Because na- Senate advice and consent to ratification No-
tions wish that those who break their own laws vember 1,1893
be held accountable to their courts, they agree Ratified by the President of the United States
with other nations to surrender an alleged crimi- November 3,1893
Ratifications exchanged at Washington No-
nal to the jurisdiction where the crime took place.
vember 8,1893
The basis for extradition is treaty, usually a bi- Proclaimed by the President of the United
lateral agreement between two nations for one States November 9,1893
to extradite to the other wanted alleged crimi- Entered into force December 8,1893
nals. Originally, the treaties specified the crimes Amended by treaty of December 10,1904
for which one could be extradited, but this Supplemented by treaty of February ly 1938.
method did not work very well since some im-
portant crimes were often accidentally omitted; 28 Stat. 1187; Treaty Series 262
therefore, the usual way is to specify extradition
for crimes that carry possible sentences of, for The United States of America and His
example, two years or more. In modern times, Majesty the King of Sweden and Norway, be-
nations will extradite alleged criminals only if ing desirous to confirm their friendly relations
and to promote the cause of justice, have re-
they are to be tried on the charges for which
solved to conclude a new treaty for the extra-
they are extradited (and not some other new
dition of fugitives from justice between the
charges), only if the alleged offense is a crime in United States of America and the Kingdom
both nations, and only if sanctions are relatively of Norway, and have appointed for that pur-
congruent. This allows the extraditing nation to pose the following Plenipotentiaries:
make sure that the individual extradited is tried
more or less in concert with its own laws and The President of the United States of
morals. For example, Canada, which has no death America, W. Q^ Gersham, Secretary of State
penalty, will not extradite U.S. citizens to the of the United States, and
United States if they are to face the possibility His Majesty the King of Sweden and
of the death penalty once in a U.S. court. Na- Norway, J. A. W. Grip, His Majesty's Envoy
tions also sometimes give preference to their own Extraordinary and Minister Plenipotentiary to
the United States,
citizens; Germany, Italy, and France, for example,
will not extradite their own citizens to a foreign who, after having communicated to each other
country. As a further protection for the rights of their respective full powers, found in good and
the accused, modern nations will not extradite due form, have agreed upon and concluded
an individual if they determine that there is in- the following articles:
sufficient evidence to take the case to trial.
Following is an actual treaty of extradition Article I
between the United States and Norway (Trea- The Government of the United States and the
ties and Other International Agreements of the Government of Norway mutually agree to de-
United States of America, (n.d.) Vol. 10,445-449). liver up persons who, having been charged with
or convicted of any of the crimes and offenses
NORWAY specified in the following article, committed
EXTRADITION within the jurisdiction of one of the contract-
ing parties, shall seek an asylum or be found
Treaty signed at Washington June 7,1893 within the territories of the other: Provided,

in
INTERNATIONAL LAW

that this shall only be done upon such evi- 11. Crimes committed at sea:
dence of criminality as, according to the laws of (a) Piracy, by statute or by the law of na-
the place where the fugitive or person so charged tions.
shall be found, would justify his or her appre- (b) Revolt, or conspiracy to revolt, by two
hension and commitment for trial if the crime and more persons on board a ship on
or offense had been there committed. the high seas against the authority of
the master.
Article II (c) Wrongful sinking or destroying a ves-
Extradition shall be granted for the following sel at sea, or attempting to do so.
crimes and offenses: (d) Assaults on board a ship on the high
1. Murder, comprehending assassina- seas with intent to do grievous bodily
tion, parricide, infanticide, and poisoning; harm.
attempt to commit murder; manslaughter, 12. Crimes and offenses against the laws
when voluntary. of both countries for the suppression of sla-
2. Arson. very and slave-trading.
3. Robbery, defined to be the act of felo-
niously and forcibly taking from the person of Extradition is also to take place for participa-
another money or goods, by violence or put- tion in any of the crimes and offenses men-
ting him in fear; burglary. tioned in this Treaty, provided such
4. Forgery, or the utterance of forged pa- participation may be punished, in the United
pers; the forgery or falsification of official acts States as a felony, and in Norway by impris-
of government, of public authorities, or of onment at hard labor.
courts of justice, or the utterance of the thing
forged or falsified.
5. The counterfeiting, falsifying or alter- Article III
ing of money, whether coin or paper, or of in- Requisitions for the surrender of fugitives from
struments of debt created by national, state, justice shall be made by the diplomatic agents
provincial, or municipal governments, or of of the contracting parties, or in the absence of
coupons thereof, or of bank notes, or the ut- these from the country or its seat of govern-
terance or circulation of the same; or the coun- ment, may be made by the superior consular
terfeiting, falsifying or altering of seals of state. officers.
6. Embezzlement by public officers; em- If the person whose extradition is re-
bezzlement by persons hired or salaried, to the quested shall have been convicted of a crime
detriment of their employers; larceny. or offense, a duly authenticated copy of the
7. Fraud or breach of trust by a bailee, sentence of the court in which he was con-
banker, agent, factor, trustee, or other person victed, or if the fugitive is merely charged with
acting in a fiduciary capacity, or director or a crime, a duly authenticated copy of the war-
member or officer of any company, when such rant of arrest in the country where the crime
act is made criminal by the laws of both coun- has been committed, and of the deposition or
tries and the amount of money or the value of other evidence upon which such warrant was
the property misappropriated is not less than issued, shall be produced.
$200 or Kroner 740. The extradition of fugitives under the pro-
8. Perjury, subornation of perjury. visions of this treaty shall be carried out in the
9. Rape; abduction; kidnapping. United States and in Norway, respectively, in
10. Willful and unlawful destruction or conformity with the laws regulating extradi-
obstruction of railroads which endangers hu- tion for the time being in force in the state on
man life. which the demand for surrender is made.

112
 INTERNATIONAL LAW

Article IV ticle, the decision of the authorities of the gov-

Where the arrest and detention of a fugi- ernment on which the demand for surrender
tive are desired on telegraphic or other infor- is made, or which may have granted the ex-
mation in advance of the presentation of tradition, shall be final.
formal proofs, the proper course in the United
States shall be to apply to a judge or other Article VII
magistrate authorized to issue warrants of ar- Extradition shall not be granted, in
rest in extradition cases and present a com- pursuance of the provisions of this Treaty, if
plaint on oath, as provided by the statutes of legal proceedings or the enforcement of the
the United States. penalty for the act committed by the person
When, under the provision of this article, claimed has become barred by limitation, ac-
the arrest and detention of a fugitive are de- cording to the laws of the country to which
sired in the Kingdom of Norway, the proper the requisition is addressed.
course shall be to apply to the Foreign Office,
which will immediately cause the necessary Article VIII
steps to be taken in order to secure the provi- No person surrendered by either of the
sional arrest or detention of the fugitive. high contracting parties to the other shall,
The provisional detention of a fugitive without his consent, freely granted and pub-
shall cease and the prisoner be released if a licly declared by him, be triable or tried or be
formal requisition for his surrender, accom- punished for any crime or offense committed
panied by the necessary evidence of his prior to his extradition, other than that for
criminality, has not been produced under which he was delivered up, until he shall have
the stipulations of this Treaty, within two had an opportunity of returning to the coun-
months from the date of his provisional arrest try from which he was surrendered.
or detention.
Article IX
Article V All articles seized which are in the pos-
Neither of the contracting parties shall be session of the person to be surrendered at the
bound to deliver up its own citizens or sub- time of his apprehension, whether being the
jects under the stipulations of this Treaty. proceeds of the crime or offense charged, or
being materially as evidence in making proof
Article VI of the crime or offense, shall, so far as practi-
A fugitive criminal shall not be surren- cable and in conformity with the laws of the
dered if the offense in respect of which his respective countries, be given up when the
surrender is demanded be of a political char- extradition takes place. Nevertheless, the rights
acter, or if he proves that the requisition for of third parties with regard to such articles shall
his surrender has, in fact, been made with a be duly respected.
view to try to punish him for an offense of a
political character. Article X
No person surrendered by either of the If the individual claimed by one of the
high contracting parties to the other shall be high contracting parties, in pursuance of the
triable or tried, or be punished, for any po- present Treaty, shall also be claimed by one or
litical crime or offense, or for any act con- several other powers on account of crimes or
nected therewith, committed previously to his offenses committed within their respective
extradition. jurisdictions, his extradition shall be granted
If any question shall arise as to whether a to the state whose demand is first received:
case comes within the provisions of this ar- Provided, that the government from which

113
INTERNATIONAL LAW

extradition is sought is not bound by treaty to Another field of international law deals with
give preference otherwise. domestic courts that are called upon to make
decisions concerning companies that do busi-
Article XI ness in more than one nation. The laws regulat-
The expenses incurred in the arrest, de-
ing business activities differ from nation to
tention, examination, and delivery of fugitives
under this Treaty shall be borne by the state in
nation, and one branch of a business in one na-
whose name the extradition is sought: Pro- tion may be forced by law to do things that are
vided, that the demanding government shall forbidden by law in another nation. For example,
not be compelled to bear any expense for the German bank secrecy laws prohibit the disclo-
services of such public officers of the govern- sure of some types of bank documents. But in
ment from which extradition is sought as re- the case of U.S. v. First National City Bank (U.S.
ceive a fixed salary: And, provided, that the Second Circuit Court of Appeals, 1968), the
charge for the services of such public officers court subpoenaed documents in the possession
as receive only fees or perquisites shall not ex- of the German branch of the First National City
ceed their customary fees for the acts or ser- Bank. The bank protested that it could not re-
vices performed by them had such acts or lease the documents, because to do so would re-
services been performed in ordinary criminal
sult in their prosecution by German authorities.
proceedings under the laws of the country of
The U.S. court said that the bank must comply,
which they are officers.
because whatever liabilities the bank suffered
Article XII were insufficient to excuse its not releasing the
The present Treaty shall take effect on the document. The courts have generally said that,
thirtieth day after the date of the exchange of in this and similar cases, local law always pre-
ratifications, and shall not operate retroactively. cedes the law of other nations.
On the day on which it takes effect the Con- In reading studies of international law, one
vention of March 21,1860, shall, as between
will almost always see authors referring to the
the governments of the United States and of
tradition of Western law as the only source of
Norway, cease to be in force except as to crimes
therein enumerated and committed prior to international law. Many will claim that interna-
that date. tional law did not exist before a point in time
The ratifications of the present Treaty shortly after the turn of the twentieth century,
shall be exchanged at Washington as soon as when Western philosophical and social move-
possible, and it shall remain in force for a pe- ments came together, prompted by the carnage
riod of six months after either of the contract- of World War I, to begin to build institutions to
ing governments shall have given notice of a dispense international law. Others have said that
purpose to terminate it. international law only came about after the de-
In witness whereof, the respective Pleni- velopment of modern nation-states, and could
potentiaries have signed the above articles, not have preceded them. This is not true. Inter-
both in the English and the Norwegian lan-
national law has been observed in several tribal
guages, and have hereunto affixed their seals.
and band societies, though there probably have
Done in duplicate, at the city of Wash-
ington this seventh day of June, one thousand been more societies in which international law
eight hundred and ninety-three. existed but for which we have no evidence. We
find international law in band and tribal societ-
Walter Q^ Gersham [Seal] ies where we find efforts to improve relations
J. A. W. Grip [Seal] between adjoining societies.

114
 INTERNATIONAL LAW

The Choctaw Indians of what is now the Perhaps the best described case of interna-
Mississippi region, for example, concluded a tional law in a tribal society is that of the
treaty with a group of Cherokee Indians to the Kapauku Papuans of New Guinea. The Kapauku
effect that if a Choctaw murdered a Cherokee, live in villages that are frequently united under a
or vice versa, only the offender could be killed powerful big man into confederacies. In the
in revenge, and that any other person, even a 1950s, when their society and legal system were
member of the family of the killer, could not be studied, it was the case that when members of
harmed in revenge. The Choctaw also made a the same Kapauku confederacy had disputes,
similar treaty with the nearby Chickasaw Indi- most were handled legally or in accordance with
ans. After much of the population of the established legal principles. However, when dis-
Choctaws and of other Indian peoples of the putes involved two people of different confed-
Southeast were forced to move to Oklahoma, eracies, the law came into play in only a minority
the Choctaws, along with other relocated of disputes. In fact, disputes between members
peoples, the Cherokees, Chickasaws, Creeks, of different confederacies sometimes became the
and Seminoles, made a code of international law basis for war between the confederacies. Other
in 1859 to govern their relations. This code pro- disputes were settled peacefully without the in-
vided for extradition of accused criminals, for volvement of authorities. In cases involving le-
the trying of criminal acts (including the har- gal decisions in disputes between private parties
boring of escaped slaves) according to the prin- of different confederacies, the cases were usu-
ciple of territoriality, for the changing of tribal ally decided by an authority who was a member
citizenship, and for intertribal cooperation in of the confederacy to whom the offender be-
reducing the sale of alcoholic beverages. longs. It was up to the authorities of the same
Other societies also came together to regu- confederacy to which the offender belonged to
late their intergroup relations through the use punish the offender, or to require him to pay
of international law. The five Iroquois tribes of compensation, in order to maintain good or
what is now New York State (the Mohawk, Sen- peaceful relations with the confederacy to which
eca, Cayuga, Oneida, and Onondaga) united in the victims belonged. The authority did so to
the Iroquois Confederacy, well before European avoid warfare against the entire membership of
contact, in an effort to end their hostilities with the village or even confederacy. The entire vil-
each other. This confederacy was similar in struc- lage was considered by the victim of an offense
ture, function, and purpose to the much-later liable for the damages or thefts caused by any
League of Nations and United Nations. This member of the village. Thus, a group, usually
confederacy also served to coordinate interna- including the victim, would come to the village
tional military activities, just as the present-day of the offender to press the case of the victim, or
United Nations does in fighting its common to take revenge or whatever compensation they
enemies. In fact, a group of Indians further to the felt was just from anyone in the village, and by
northeast, the Penobscot, the Passamaquoddy, force if opposed. This is seen in the following
the Maliseet, and the Micmac, who were long- case, which occurred in 1955 in the village of
time enemies of the Iroquois, also came together Botu (and which is taken from Pospisil, 1958:
among themselves in the Wabanaki Confederacy 223-224).
in order to coordinate their military resistance to the
Iroquois and to the English; in the process, they de- A man of the village, named Ij Bun, made his
veloped international law amongst themselves. living primarily by theft and fraudulent

115
INTERNATIONAL LAW

transactions involving the buying and selling respect to Ij Bun. He was not killed, but merely
of swine, rather than by horticulture, which reprimanded. In addition, the authorities col-
was the normal way of making an honorable lected from Ij Bun s kin the amount of the debt
living. One time, Ij Bun, who belonged to the so as to pay off his creditor. They reprimanded
Ijaaj-Pigome Confederacy, was travelling in him by warning him that he would come to a
the Tigi region, where there was another con- bad end if he did not change his ways, and
federacy. There, he met Ba Amo, who, on Ij that he had narrowly escaped such a fate this
Buns promise of three large pigs, loaned Ij Bun time.
a considerable sum of money (pigs, being the
major source of wealth in the Kapauku world,
were worth a good deal of money). Some See also CONSTITUTION.
months later, people from the Tigi region came
to collect the pigs, and found out that not only
did Ij Bun have no pigs, but had also spent Bishop, William W., Jr. (1971) International
the money he had received from Ba Amo, and Law: Cases and Materials.
thus could not return it. The people from Tigi Debo, Angie. (1961 [1934]) The Rise and Fall of
threatened to forcibly take what was justly due the Choctaw Republic.
them from the other members of the village.
Kratochwil, Friedrich. (1985) "The Role of
The people of Botu pleaded with them not to
Domestic Courts as Agencies of the Inter-
do that, but to take their revenge upon Ij Bun,
who was away and who, when summoned, national Legal Order." In International Law:
refused to return. Some men of the Ijaaj- A Contemporary Perspective^ edited by Rich-
Pigome Confederacy called for Ij Bun's death. ard Falk, Friedrich Kratochwil, and Saul
Then a large party of armed men from the Tigi Mendlovitz, 236-263.
region returned two weeks later, and con- Maine, Henry Sumner. (1978 [1888]) Interna-
fronted Ij Bun, who had returned to Botu. tional Law: A Series of Lectures Delivered be-
After his promise to pay his creditor, as guar- fore the University of Cambridge 1887.
anteed by the village headman and Ij Buns
relatives, the armed men left. Pospisil, Leopold. (1958) Kapauku Papuans and
Then Ij Buns trial began. The authori- Their Law.
ties included three village headmen, a lineage Swift, Richard. (1969) International Law: Cur-
headman, and the headman of the entire Ijaaj- rent and Classic.
Pigome Confederacy. At the trial, which took
several days to complete and which involved Treaties and Other International Agreements of the
much public denunciation of Ij Bun and pub- United States of America, 1776-1949. (n.d.)
lic speeches by members of the village, the Vol. 10, Nepal-Peru. Compiled under the di-
authorities finally decided on leniency with rection of Charles I. Bevans, LL.B.

116
 a reservation, an argument could be made that
the trial should be held in a federal court be-
cause the reserve is federal land and Indians are
administered by the federal government and not

j
by the states. Because they were both active mili-
tary personnel at the time of the murder, an ar-
gument could also be made that a military court
should hear and decide the case.
Jurisdictional issues in the Tibetan legal
system were equally complex. There were nine
factors that could influence the selection of ju-
risdiction in a particular case.
The first of these factors was the territorial-
ity principle. Normally, a case was handled
within the territorial unit in which the offense
occurred. However, if the parties to the case
wanted their legal hearing to be conducted in
another court, the local courts of the territory
could not prevent them from doing so. Further,
The \exw\jurisdutwn re- if the local courts wished, they could refuse to
JURISDICTION fers to the authority to hear and decide a case that occurred within the
decide a legal case. It is territory they represented.
derived from the Latin juris dictio (the judge's The type of offense committed was also a
speaking). Jurisdictional issues are questions as factor in Tibetan Jurisdictional issues. The ter-
to which legal authority is to decide any par- ritorial principle, as noted above, could be ne-
ticular case. This issue is of central importance glected if the parties to the dispute so chose.
in discussions of the subjects of the territorial However, this option did not exist for cases in-
principle of law, the personality principle of law, volving serious crimes such as murder, rioting,
and international law. Jurisdictional issues come or large-scale robbery; it was compulsary for lo-
up in U.S. courts and in the very similar Cana- cal courts to hear and decide such cases.
dian courts more frequently than one might sus- Consent was a third factor in deciding ju-
pect. In Canada, the wills of Canadian Indians risdiction. It was required in all but a few types
have been probated by provincial courts, even of cases that both parties involved in the dispute
though the federal Indian Act gives jurisdiction and the court itself agree that the case be handled
over the probate of Indian wills to the federal by the chosen court. If any of the three (either
Department of Indian Affairs and Northern De- party or the court) did not agree to the choice of
velopment. We might also take as a hypotheti- court, the legal hearing would be held elsewhere.
cal case one in which a Native American who is This factor was operative unless the case con-
a corporal in the army murders another Native cerned the serious crimes noted above or a gov-
American who is a captain in the army while ernment official commanded that he himself
both are on the Navajo reservation in Arizona. would decide the case in his court.
Because they were in Arizona, an argument A fourth factor was the power of the gov-
could be made for the trial to be held in an Ari- ernment to refer some cases to particular courts.
zona state court. Because they were Indians on It was the Cabinet and the Highest Ecclesiastical

117
JURISPRUDENCE

Office that referred most of these cases, and it Nepalese, while those in the rural hinterlands
was these governmental bodies that decided the were handled by the local district courts. Legal
appropriate court for any particular case. For disputes involving all other foreigners were de-
example, the Cabinet was known sometimes to cided by the Office for Foreigners, located in
refer relatively small property cases or civil suits Lhasa.
to the High Court of Tibet. Tibetan monks also had their own courts,
It was also possible for those who had which dealt with cases involving disputes be-
worked for a particular court, or who had rela- tween monks that occurred within the monas-
tives who worked for a particular court, to have tery. Disputes that occurred outside the
their legal hearings at these courts. Of course, monastery, involving either two monks or a
the likelihood that the court would decide in monk and someone who was not a monk, were
favor of someone related to or on friendly usually resolved by secular courts.
grounds with the legal authorities was consid- Finally, military men also had their own
ered, and the opponent in the case always had courts that decided disputes between military
the right to refuse his or her consent to the use personnel. If a member of the military was a
of that court. However, the opponent might al- defendant in a case involving someone who was
low the court to be used, especially if he or she not in the military, the case was also decided by
had a strong case, because the party with rela- the military court system. On the other hand, if
tives or friends in the court would be more likely the military man was the plaintiff or victim of a
to accept that court s verdict. crime, the case was decided by the ordinary Ti-
Jurisdiction also depended on the factor of betan courts.
the social rank of the individuals involved. Those
See also INTERNATIONAL LAW; PERSONALITY
of very high rank were not brought before ordi-
PRINCIPLE OF LAW; SELF-REDRESS; TERRITORIAL
nary courts. The father of the Thirteenth Dalai
PRINCIPLE OF LAW.
Lama once beat a man in the city of Lhasa, and
he could not even be arrested by ordinary po-
lice; his case was dealt with by a specially as-
sembled group of governmental officials. The Barton, Roy F. (1973 [1949]) The Kalingas: Their
Dalai Lama himself was a legal authority for at Institutions and Custom Law.
least some disputes among royalty. Some of the
French, Rebecca. (1990) The Golden Yoke: A Le-
disputes involving the highly ranked were treated
gal Ethnography of Tibet Pre-19 59.
in political rather than legal forums, including
the National Assembly and the Cabinet. On the
other hand, disputes among the lowest social
ranks, including blacksmiths, beggars, butchers,
and executioners, were almost never tried in the
courts. Such people often settled their disputes Jurisprudence may be
by means of self-redress. They were further un- JURISPRUDl-XCK defined in two ways.
likely to be taken to court by a plaintiff, since One commonly used
they rarely had any money that could be taken meaning for the term is as a synonym for law.
from them in a legal settlement. Legal scholars, on the other hand, use the term
Foreigners frequently had court systems of to refer to the science of law. As a science,y&ra-
their own in Tibet. Cases involving Nepalese in prudence refers specifically to the lawyer s study
Lhasa were handled by the the Office for of legal precepts and technique in light of infor-

118
 JURISPRUDENCE

mation supplied by disciplines other than law. order to make scientific generalizations
Much of what is called jurisprudence in mod- about the law, such as whether laws have the
ern U.S. legal journals is not this, but rather intended effect on behavior. Legal anthro-
simple discussions of recent trends in legal pologists are most interested in this last cat-
decision making. egory of sociological jurisprudence.
The noted legal scholar Roscoe Pound
proposed four categories of jurisprudence, as The following decision (The All Pakistan
follows. Legal Decisions, 1993 45: 44-53) shows how le-
1. Analytical. Analytical jurisprudence in- gal authorities in an Islamic country solved a po-
volves the study of legal precepts to under- tentially difficult legal dilemma. They had to
stand how they form logical and consistent decide whether the statutes made by the Paki-
patterns. One of the most important tasks stani legislature were in conflict with the rules
of analytical jurisprudence is to prevent laws set down in the Qur'an (Koran). In predomi-
from becoming contradictory with each nantly Islamic countries, governments attempt
other and with principles of justice, some- to implement rules in the Qur'an in the nation s
thing that is not done very well in U.S. law. actual legal system. Thus, ideally, all legal stat-
For example, people who commit man- utes made by the legislatures should agree with
slaughter may receive prison sentences of the rules laid down in the Qur'an, and if they do
only a few years, but in one case a man who not they are frequently cast aside by the legal
pinched two women was sentenced to ten authorities.
years in prison. In this example, we see an
obvious conflict between the law and prin- PLD 1993 Federal Shariat Court 44
ciples of justice; principles of justice are sup-
Before Tanzihur Rahman, C. J., Fida
posed to be built into sentencing laws in the
Muhammad Khan
United States. Another subject studied by
andAbaid Ullah KhanJJ
scholars of analytic jurisprudence is theo-
ries of justice, such as Natural Law. SOHAIL HAMEEDPetitioner
2. Historical. Scholars of historical jurispru- versus
dence study the history of jurisprudence it- FEDERATION OF PAKISTAN
self, as well as the history of particular legal Respondent
systems. They want to answer questions like
"How did we arrive at the legal system we Sariat Petition No. 4-K of 1992, decided on
12th November, 1992.
have?"
3. Philosophical. Philosophical jurisprudence (a) Islamic Jurisprudence
involves the application of philosophical rea- Crime and punishmentPerson who com-
soning to the problems of justice in the law. mits a crime, he alone would be liable to pun-
ishment for the commission of the crime and
4. Sociological. Scholars of sociological juris-
no other person would be liable in his place.
prudence study a range of related subjects.
[P.46]A
Some study human behavior and how it con- Al-Qur'an: 165:6; 79:38; 2:286; 16:126
forms to the law or how it differs from the and 6:164 ref.
law. Others are interested in how human
behavior influences the law. Still others study (b) Islamic Jurisprudence
the relationship between law and society in Crime and punishmentIntentionMere

119
JURISPRUDENCE

intention not coupled with any preparation or complete the offence. The culpability of all the
attempt to translate the intention into action accused in such cases is co-extensive and em-
is not liable for any punishmentEven after braces the principal actor and his accessories
having an intention to commit a crime fol- to the act. All the participants with common
lowed by preparation to commit same, if a intention deserve like treatment to be meted
crime is not committed for some reason the out to them in law.
mere intention or preparation is not liable to Section 34, P.P.C. does not offend any In-
punishment specified for the crime itself, un- junction of Islam, laid down in the Holy
less the preparation by itself is a crime, [p. 47] B Qur'an and Sunnah of the Holy Prophet
(p.b.u.h.). [p.53]H
(c) Islamic Jurisprudence
Crime and punishmentIntentionIf a Petitioner in person.
person performs a bad deed with good inten- Iftikhar Hussain Ch., Standing Counsel
tion, the badness of that action will remain for Respondent.
there, [p. 47]C
Date of hearing: 7th October, 1992.
(d) Islamic Jurisprudence
Crime and punishmentQisasIf a group
JUDGMENT
of persons kill a person, then the entire group
involved in the murder would be put to death
in Qisas. [p. 49]D TANZIL-UR-RAHMAN, C. J.1.
This Sariat Petition challenges section 34 of
(e) Islamic Jurisprudence the Pakistan Penal Code on the ground of its
Crime and punishmentCommon inten- being repugnant to the Injunctions of Islam
tionIf several persons commit an act of ag- as laid down in the Holy Qur'an and Sunnah
gression against a single person in furtherance of the Holy Prophet (p.b.u.h.). The said sec-
of common intention, all of them would be tion is reproduced as under:
liable to punishment, [p. 50] E "S.34. When a criminal act is done by
several persons, in furtherance of the
(f) Penal Code (XLV of I860) common intention of all, each of such
S. 34Scope and implication of S.34, persons is liable for that act in the same
P.P.C. [pp.51,52]F8cG manner as if it were done by him alone."
Inam Bux v. The State (PLD 1983 SC According to section 34, when a criminal act
35); Sultan v. Emperor (AIR 1931 Lah. 749) is done by several persons in furtherance of
and Ibra Akanda v. Emperor (AIR 1944 Cal. the common intention of all, each of such per-
339(358): 45 Cr. LJ 771 ref.) sons is liable for that act in the same manner
as if it were done by him alone.
(g) Penal Code (XLV of I860)
S.34Constitution of Pakistan (1973), Art.
2. The contention of the petitioner is that
203-DRepugnancy to Injunctions of Is-
in Islam there is no punishment for intention.
lamProvision of S.34, P.P.C. does not of-
Reliance has been placed on the following
fend any Injunction of Islam.
verse:
An individual involved in a criminal act
may not be sufficiently motivated to execute "No bearer of the burden can bear the
his criminal design but aided, abetted and en- burden of others." (Al-Qur'an, 165:6).
couraged by the presence and participation of It, however, seems relevant to also quote the
others may provide him the sufficient tools to following verses of the Holy Qur'an:

120
 JURISPRUDENCE

"Every soul will be held in pledge for its "Mere intention is not subject to pun-
deeds." (Al-Qur'an, 79:38). ishment unless it is done practically."
"In his favor shall be whatever good he
does, and against him whatever evil he 6. On account of his principle mere in-
does." (Al-Qur'an, 2:286). tention not coupled with any preparation or
attempt to translate the intention into action
"If you have to respond to an attack (in is not liable for any punishment. Thus even
argument) respond only to the extent of after having an intention to commit a crime
the attack leveled against you." (Al- followed by preparation to commit it, if a crime
Qur'an, 16:126). is not committed for some reason the mere
"And whatever (wrong) any human be- intention or preparation is not liable to pun-
ing commits rest upon himself alone." ishment specified for the crime itself, unless
(Al-Qur'an, 6:164). the preparation by itself is a crime.

7. The petitioner also submitted that the

3. According to the above verses of the
actions (liable to reward) go into intentions.
Holy Qur'an the basic principle of Islamic
This phrase is, in fact, a part of a long Hadith
criminal justice seems to be that the person
of the Holy Prophet (p.b.u.h.) narrated from
who commits a crime, he alone would be li-
him by Hazrat Umar. This Hadith is narrated
able to punishment for the commission of the
by Imam Bukhari in his Sahih as first Hadith
crime and no other person would be liable in
under Kitab al-Wahi and is also mentioned in
his place.
Al-Mishkat as the first Hadith under Kitab
al-Imam. After the above part of the Hadith
4. As regards the contention of the peti- the Holy Prophet (p.b.u.h.) Said, i.e., a human
tioner that there is no punishment for the mere being will get (in result) what he intends for.
intention, the following Hadith seems to be It was then stated by the Holy Prophet in
relevant and are thus quoted below: the said Hadith that:
(i) "It is reported from the Holy Prophet
(p.b.u.h.) To have said that "i.e., who migrates with the intention to
seek pleasure of Allah and His Apostle,
"Allah Almighty has exempted their fol-
his migration from Makka to Madina
lowers from any penalty for what is in
will be for the sake of Allah and His
their hearts unless it is translated into
Apostle and who migrates (from Makka
action."
to Madina) for worldly gain and marry-
(ii) "It is also reported from the Holy ing with certain woman, his migration
Prophet (p.b.u.h.) To have said that will be relatable to that intention with
"The person who intends to do any vir- which he migrated."
tuous act but does not perform it, a re- Therefore, it can be inferred that if one per-
ward shall be written in his account and forms a bad deed with good intention, the
the person who intends to commit a badness of that action will remain there, e.g.,
crime but for some reason, does not act if a person steals another's property with the
upon it in such circumstance, nothing intention that he will help the poor with that
shall be recorded against him." stolen property, the mere intention will not
render the theft as lawful. The theft will re-
5. Abu Zahra, a renounced renowned ju- main theft and he will be liable to punishment
rist of Egypt in his Al-Jarima wal Uquba fil in accordance with law. No matter the inten-
Shari'ah Al-Islamia page 350 writes that tion of committing theft may be good.

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JURISPRUDENCE

8. In so far as the question of doing an act to kill several persons in retaliation of a

jointly in furtherance of common intention single person. It was an Ijtihad of Hazrat
and its liability on each of them is concerned, Umar to have said, 'If all inhabitants of
it seems pertinent to refer to an incident that San'a participated jointly in committing
occurred during the days of Umar, the second this crime, I would have killed all of
Caliph. It is narrated in Al-Musannaf Abi them/The object of his declaration was
Shaibah, Vol. IX, page 347 that the protection of human lives and to de-
"The husband of a woman of the city ter others from committing the crime.
San'a disappeared by leaving her step-son However, Hazrat Umar was not sure
in the house. In his absence, the woman about the correctness of his decision un-
had illicit relations with a person and said til he asked Hazrat Ali that 'if you ap-
to her friend that this child will nickname prehended several persons in committing
them by disclosing their relation and a crime of theft, would you order ampu-
asked him to kill the child. When he re- tation of their hands?' Hazrat Ali said,
fused to do so she discontinued her il- yes! 'The same principle would be ap-
licit relation with him. Ultimately, the plied here.'Then, Hazrat Umar ordered
woman, her friend, her servant and an- to kill all of them." (Al-Mufiqat fi Asul
other person jointly agreed to kill the al-Shari'ah, Labi Ishaque Al-Shatibi,
child. After killing, they cut his body into Vol. Ill, page 11 Dar al-Ma'rafat, Beirut,
pieces and then threw it into a well. Lebanon).
When the incident came to the knowl-
edge of the people the Governor of 10. There is another incident that Hazrat
Yemen arrested the persons concerned. Ali had also ordered the execution of three per-
He and other culprits make confession sons in retaliation of killing a single person. It
before him. The Governor of Yemen is thus so stated in as under:
brought the matter into the notice of Likewise, Hazrat Ali also executed, many
Hazrat Umar. In reply, Hazrat Umar or- persons in retaliation of one person (This
dered him to kill all of them and said "By precedent is followed by the majority of
God, if all the inhabitants of San'a par- Jurists and Companions of the Holy
ticipated in committing this crime, I Prophet).
would have killed all of them."
11. Imam Malik, in Mu'atta has also been
9. The same incident has been stated in quoted as saying that if a person catches hold
Al-Mufiqat by Imam Shatibi. It reads as of a person and another kills him and then it
under: is found that he had caught hold of him for
"Hazrat Umar executed five or seven per- being killed, then both would be put to death.
sons in retaliation of a single person, (Mu'atta: Imam Malik, Vol. II, p. 873 Kitabl
whom they had killed treacherously. Be- Aqul-Babul-Qisas fil-Qatl).
cause Hazrat deemed it expedient for the
protection and security of human lives. 12. Maulana Salmat Ali in his translation
If several persons are not killed in retali- of Kitabul Ikhtiyar known as Islami Faujdari
ation of a single person, then the crime Qanun has also stated on the authority of Al-
of human massacre will not be completely Kafi that if a group of persons kills a person,
eradicated by the law of retribution. Here then the entire group involved in the murder
wisdom may hesitate, because it does not would be put to death in Qisas. (Article 560,
seem to be a protection of human lives p. 194).

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 JURISPRUDENCE

13. In Fiqh terminology, two words on the decision of Hazrat Umar who had ex-
Tawafuq and Tamalu' are very common to ecuted seven persons, in retaliation of killing
denote such a situation. There is, however, a a single person and is reported to have said
big difference between the Hanafis and the that if all inhabitants of San'a had participated
rest of the Jurists in determining the meaning in committing the said crime, I would have
of Tamalu'. According to Jamhoor Tamalu' is killed all of them, as referred to above.
like Tawafuq to commit a crime jointly with-
out having prior agreement or conspiracy, that 16. It is reported that there seems to be
is to say they just agree on the spot to commit consensus of opinion among the Companions
a crime jointly without prior planning and of the Holy Prophet (p.b.u.h.) That if several
agreement. While according to Malikis Jurists, persons commit an act of aggression against a
Tamalu' meant to commit a crime jointly by single person in furtherance of common in-
several persons in furtherance of common in- tention, all of them would be liable to punish-
tention and prior agreement. According to ment. It is, however, stated in Al-Muhalla by
them each member of the group shall be li- Imam Ibn Hazam Zahiri that the Compan-
able to punishment specified for the commis- ions of the Holy Prophet (p.b.u.h.) Cannot
sion of the crime regardless of their direct be said to be unanimous as Ma'az bib Jabal, a
participation in the crime. Each of them would prominent Companion of the Holy Prophet
be considered as it was done individually. (p.b.u.h.) Is reported to have not agreed on
the issue of joint liability with Hazrat Umar
14. In other words, according to Malikis, and Hazrat Ali. This is so stated in Abu
mere presence at the spot of occurrence of Zahra's book, page 402 (ibid).
crime with an intention of such commission
is sufficient to make a person liable to punish- 17. However, the jurists are of the opin-
ment for such crime irrespective of the nature ion that if the concept of joint liability is ig-
of his participation and assistance. According nored, then "Mischief in the land" will spread
to Hanafis, however, all participants shall be on earth. The criminals will conspire to com-
punished with a punishment of Qisas in the mit a crime jointly for the purpose of availing
case of murder and the person, who after acquittal of some of the participants. There-
agreement, merely assists at the place of oc- fore, it is also in the interest of keeping peace
currence he will, however, be awarded Ta'zir and harmony in the society, if the acts com-
punishment which may go to the extent of mitted with common intention be made pun-
death punishment but only as Ta'zir, not as ishable for all and each of them for committing
Qisas. such crime.

15. According to Shafi'is and Hambalis, 18. It appears that this Court in exercise
all will be liable to the same punishment pro- of its suo mo tu jurisdiction under Article 203-
vided they all intended to commit the said D(l) of the Constitution, had issued public
crime and participate in the commission of the notice dated 30-8-1987 in S.S.M. No. 41-A
crime, even if other person or persons engage of 1987 to examine some of the provisions of
themselves in some minor act like beating with the Pakistan Penal Code, 1860, including sec-
a stick, etc. However, the preferred opinion of tion 34, and had invited the opinions of law-
the Jumhoor of the Fuqaha (multitude major- yers, jurists and ulema etc. A public notice
ity overwhelming of the Jurists) is that if sev- appeared in the National Dailies of Pakistan,
eral persons participated in killing a single both Urdu and English and the Court started
person, all of them shall be liable to death examination of the said section 34 along with
punishment. Their opinion is, in fact, based certain other provisions of the Pakistan Penal

123
JURISPRUDENCE

Code from 17th to 21st January, 1988 at some or all of the following acts; com-
Islamabad and the matter was heard on dif- mon motive, pre-planned preparation
ferent dates at Karachi, Lahore and Quetta and concert pursuant of such plan, com-
during 1989 and 1990, but there appears to mon intention, however may develop
be no judgment written or pronounced in the even at the spur of the moment or dur-
said S.S.M. No. 41-A of 1987, with the result ing the commission of the offence.
that section 34, P.P.C., now under consider-
The principle enunciated is that if two
ation also remained undecided.
or more persons intentionally do a thing
19. It may, however, be mentioned that jointly the position is just the same as if
in response to the earlier publication of the each of them had done it individually by
public notice in the Dailies of Pakistan, a num- himself."
ber of Scholars submitted their comments on
the different provisions of law in a general 21. To understand and appreciate the im-
form. However, Professor Fazle Hadi Qasmi plications of section 34 it seems necessary to
of Peshawar, made his comments on certain also refer to sections 35, 37 and 38, P.PC.
sections of the Pakistan Penal Code as asked Section 34 deals with the doing of separate
for. About section 34 his comments are re- acts, similar or diverse, by several persons; if
produced as below: all are done in furtherance of a common in-
tention, each person is liable for the result of
20. Section 34, as reproduced (supra), only them all as if he had done them himself. Sec-
enacts a rule of co-extensive culpability when tion 35 in effect provides for a case where sev-
offence is committed with common intention eral persons join in an act which is not per se
by more than one accused. Meeting of more criminal, but is criminal only if it is done with
than one mind in doing an act (intended as a criminal knowledge or intention; in such a
agreed) to an offence can be said to result in case each of those persons who joins in the act
having common intention in doing it. That with that particular knowledge or intention
creates co-extensive criminal liability under will be liable for the whole act as if it were
this section. The principle which is embodied done by him alone with that knowledge or
in section 34, is participation in some act with intention, and those who join in the act but
the common intention of committing a crime. have no such knowledge or intention will not
If one such participation among more than one be liable at all. Section 37, in effect, provides
person is established section 34 is attracted. for a case where several persons cooperate in
The Hon'ble Supreme Court of Pakistan in the commission of an offence by doing sepa-
Inam Bux v. The State (PLD 1983 SC 35) rate acts in different times or places, which
has thus held that: acts, by reason of intervening intervals of time,
"Section 34 of the Penal Code, 1860 is may not be regarded as one act or which may
intended to meet a case in which it may not be necessarily committed with a common
be difficult to distinguish between the intention. Section 38 provides that if several
acts of individual members of a party who persons are engaged or concerned in the com-
act in furtherance of the common inten- mission of a criminal act, having been set in
tion of all. It does not create a distinct motion by different intentions, they may be
offence but merely enunciates a principle guilty of different offences by means of that
of joint liability for acts done in further- act. This section, which is the converse of sec-
ance of common intention animating the tion 34, provides for different punishments for
accused leading to the doing of a crimi- different offences where several persons are co-
nal act in furtherance of such intention. accused in the commission of a criminal act,
Common intention usually consists of whether such persons are actuated by the one

124
 JUSTICE

intention or the other. The basic principle seem to be out of context as they relate to the
which runs through all these sections is that law of creation/extinction whereas we are at
an entire act is to be attributed to a person the moment concerned with the legislation as
who may have performed only a fractional part to the law of crime and punishment.
of it. Sections 35, 37 and 38 begin by accept-
ing this proposition as axiomatic, and each of 24. It may thus be stated that an indi-
them then goes on to lay down a rule by which vidual involved in a criminal act may be suffi-
the criminal liability of the doer of a fractional ciently motivated to execute his criminal
part (who is to be taken as the doer of the en- design but aided, abetted and encouraged by
tire act), is to be adjudged in different situa- the presence and participation of others may
tions of mens rea.The axiom itself is laid down provide him the sufficient tools to complete
in section 34 is which emphasis is on the act. the offence. The culpability of all the accused
What has to be carefully noted is that in sec- in such cases is co-extensive and embraces the
tion 35 and in section 37 and in section 38 principal actor and his accessories to the act.
this axiom that the doer of the factional act is All the participants with common intention
the doer of the entire act is taken up as the deserve like treatment to be meted out to them
basis of a further rule. Without the axiom these in law.
sections would not work, for it is the founda-
tion on which they all stand. Reference may 25. We are, therefore, of the considered
be made to Sultan v. Emperor (AIR 1931 Lah. view that the above section 34, RRC. does not
749 (750) and Ibra Akanda v. Emperor (AIR offend any Injunction of Islam, laid down in
1944 Cal. 339 (358): 45 Cr. LJ 771). the Holy Qur'an and Sunnah of the Holy
Prophet (p.b.u.h.).
22. Mr. Iftikhar Hussain Chaudhary,
learned counsel for the Federal Government, 26. The petition is, therefore, dismissed
submitted that the principle of collective re- as being without merit.
sponsibility is well-established in history. The
Holy Qur'an mentions extinction of the tribes Petition dismissed.
of Ad andThamud. These people had aban-
doned the worship of true god and lapsed into
incorrigible idolatry. To Ad, Hazrat Hud was
The All Pakistan Legal Decisions. (1993) Vol. 45.
sent but they did not believe him and the tribe
was obliterated from the face of the earth by a
Edited by Malik Muhammad Saeed.
hot and suffocating wind that blew for seven Austin, John. (1954) The Province of Jurispru-
nights and eight days without intermission and dence Determined and the Uses of the Study of
was accompanied by a terrible earthquake. The Jurisprudence.
idolatrous tribe of Thamud was bestowed with Pospisil, Leopold. (1974 [1971]) Anthropology
the presence of Hazrat Salih but the unbe-
of Law: A Comparative Theory.
lievers persisted in the incorrigible impiety and
a violent storm overtook them and they were
found prostrate on their breasts in their abodes.
Thus, groups, tribes, people or nations were
given punishment for their collective wrong-
doings and males, females and children were
The subject of justice is
treated alike.
Jusna; a very complex one. Jus-
23. The above instances, as quoted by the tice may play a role in
learned Standing Counsel for the Federation, virtually all aspects of the law. In many societies,

125
JUSTICE

half," showing that they conceive of justice as a

balance between the parties.
Most questions of justice focus on the jus-
tice of the law. However, there is another cat-
egory of justice known as justice of the facts. In
order for a legal authority to render a decision,
he or she must discover and investigate the facts
of the dispute. Justice of the facts concerns the
quality of the information that the legal author-
ity uses to decide a case. What is important in a
legal action is what the legal authority assumes
happened, and not what actually happened. It is
usually the job of the legal authority to objec-
tively seek the truth with regard to the facts of
the case, and so the authority must consider the
possibility that witnesses lie and that both par-
ties to a case have committed offenses. The le-
gal authority must determine credibility, and will
sometimes use the standard of the reasonable man
in determining this.
Justice, represented as a blindfolded 'woman holding a Among the Kapauku of Papua, New Guinea
sword and scales on which to weigh truth, rests on a (Pospisil, 1971: 237), the legal authority has an
throne in an eighteenth-century engraving. advantage over legal authorities in Western
courts in that he has the opportunity to hear the
parties to a case argue violently over it, and in so
the concepts of law and justice are virtually in- doing may hear more of the truth than he would
distinguishable from one another, and it is be- hear in a calm courtroom in the West.
lieved in those societies that the purpose of the The legal authorities of the Micmac Indi-
law is to provide justice. ans of eastern Canada are lucky in that they usu-
However, it is not true that the law is al- ally never have to worry about justice of the facts.
ways just, or even that law always provides jus- All of the true facts of the case are presented to
tice. In Nazi Germany, for example, Adolf Hitler them in short order by the parties to the case.
committed many injustices in killing people in The plaintiff will tell the headman or Indian act
his concentration camps, but these injustices chief (legal authority) truthfully what the alleged
were strictly legal at the time in Germany. wrongdoer has done, but will omit whatever of-
While it is probably true that all societies fensive acts he or she has himself or herself com-
have concepts of justice, ideas about what spe- mitted. Then the headman or chief will go to
cifically constitutes justice vary from society to the alleged wrongdoer. The alleged wrongdoer
society. Among the Koreans, justice is often con- will admit the truthful allegations made by the
ceived of as being synonymous with virtue. In plaintiff, and will then accuse the plaintiff of the
Western legal traditions, equality, or equity (in commission of offensive acts, which the plain-
France, egalite), is often thought to be the goal tiff had neglected to mention. In short, the usual
of justice. Among the Kapauku Papuans of New legal strategy of the alleged wrongdoer is to claim
Guinea, justice is known as uta-uta, or "half- that the plaintiff is without "clean hands" (has

126
 JUSTICE

himself or herself done wrong things in relation tries, are all doctrines applied to the question of
to the case, and should not therefore have just justice in adjudication.
cause to complain). The alleged wrongdoer will Many legal scholars, on the other hand, have
also argue the interpretation of the facts, and been interested injustice in principles of the law.
the application of the appropriate law or rule to That is, they want to know whether the prin-
the facts, but will rarely deny true facts. ciples behind the legal decisions themselves
The second branch of justice is the justice are just.
of law. This may be further broken down into How is it that one assesses the justice of le-
justice of adjudication and justice in principles gal principles? One has to look at questions of
of the law. Justice in adjudication may either be substantive justice, the goal of which is to pro-
formal, involving uniformity in application of vide a scale of values in order to make such as-
legal principle and equal sanction for equal sessments. One such scale of values was provided
crimes, or it may be on a case basis, with the by the doctrine of Natural Law.
merits and demerits of each case weighed sepa- The other part of substantive justice is pro-
rately. For example, the Micmac Indians are firm cedural justice. This involves the way in which
believers in formal justice in adjudication. They large philosophical doctrines, such as Natural
believe that all similar offenses should be treated Law, are converted into actual laws to be used in
in exactly the same way. Their insistence on uni- the regulation of human society. Ideas on this
formity is largely a result of the not uncommon subject are, like those pertaining to substantive
practice of legal authorities making decisions on justice, largely philosophical, and are treated in
the basis of political self-interest and in the in- the entry on Legal Anthropology.
terest of benefitting kin and friends with light
See also EQUITY; LEGAL ANTHROPOLOGY; NATU-
sanctions; corruption of the legal system is all
RAL LAW; REASONABLE MAN.
too common in a community in which all people
know each other and/or are related through kin-
ship to each other.
When deciding principles of law, it is im- Barton, Roy F. (1969 [1919]) Ifugao Law.
portant to treat crimes of relative equality in
much the same manner, to decide which crimes Bohannan, Paul J. (1957a) Justice and Judgement
are more reprehensible than others, and, in among the Tiv.
democratic systems, to ensure that certain classes
of people do not receive preferential treatment. Gluckman,Max. (1967 [1955]) The Judicial Pro-
Accordingly, among the Ifugao people of the cess among the Barotse of Northern Rhodesia.
Philippines, fines are adjusted on the basis of Pospisil, Leopold. (1974 [1971]) Anthropology
wealth. The poor pay one amount for a particu- of Law: A Comparative Theory.
lar offense, those of the middle class pay a higher
amount, and the wealthy pay the greatest fine. Strouthes, Daniel P. (1994) Change in the Real
Natural Law, equity, and the standards of Property Law of a Cape Breton Island Micmac
the reasonable man, discussed in their own en- Band.

127
 of the society's people and its lands. These char-
acteristics, along with the characteristic of di-
vine rule, are all that kingdoms around the world

k
seem to have in common. Differences in suc-
cession, power, duties, responsibilities, and a host
of other factors distinguish one society's royalty
from that of another.
For instance, Yoruba kings (only males can
be monarchs) are in an alternating fashion
elected from one of two segments of the royal
lineage. In comparison, the British and Japanese
monarchs descend according to primogeniture,
while the Tibetan monarch, the Dalai Lama, is
by ordinary kinship reckoning unrelated to his
predecessor. Some monarchs can abdicate the
throne, such as those in Great Britain, but
Yoruba kings can only leave office in death (on
the other hand, those who elected the Yoruba
king could require him to commit suicide by
Kingship maybe defined drinking poison).
KINGSHIP as a type of political The supernatural qualities ascribed to mon-
leadership in which the archs vary along with differences in the official
leader of a society rules with divine right or di- religions to which the monarchs belong. The
vine power. In many kingdoms, the king or British monarch is the head of the Church of
queen is believed to have descended from a god, England, but not a god, whereas the Japanese
or to himself or herself actually be a god. King- emperor and Polynesian kings and queens are
doms differ from theocracies in that the latter themselves deities. Neither the Japanese emperor
are governed by religious practitioners, such as nor the Polynesian monarch may be touched by
priests, rather than by the objects of veneration a commoner.
themselves. The reason that the Polynesian monarch
Kingship was found in many places through- may not be touched by a commoner illustrates
out the world in traditional times, including the differences and similarities in the divine
Europe, India, Polynesia and other parts of power held by monarchs. The Polynesian mon-
Oceania, China, Cambodia, Japan, West and arch was believed to possess more of a super-
East Africa, Mexico (the Aztec), and Peru (the natural power called mana than anyone else.
Inca). Where monarchies remain in the mod- Mana is a formless supernatural power that may
ern world, they have lost most of their power. be likened to an electrical charge, in that it can
Yoruba kings, for example, are under the power be transferred by contact. A person with very
of the Nigerian government, and the monarchs little mana can be killed by touching someone
of Great Britain, Japan, and the Netherlands are with a great deal of mana, and someone with a
subordinate to national parliaments. great deal of mana could lose it by touching su-
Kingdoms are generally regarded as state pernaturally polluted objects. Mana is univer-
societies. Furthermore, in most if not all cases, sal, the Polynesians believe, and present to some
the monarch is regarded as the personification degree in all objects. A fish hook that has caught

129
KINGSHIP

a lot of fish has more mana than one that has had more mana than either of his parents, and it
not; the same is true for a spear that has killed is for this reason that the king of Tahiti abdi-
many men. An army that wins a battle has more cated his throne in favor of his son. When dif-
mana than the losing army. The king, of course, ferent types of mana came into contact, they
has more mana than anyone, and therefore can- discharged each other, much like electrical forces
not be touched without killing the person who of opposite polarities. Thus, the best way to ac-
touches him. In fact, the king was believed to cumulate mana in one s family is for siblings, who
have so much mana that he had to be carried have the same kind of mana, to marry each other,
everywhere so that the ground would not be- and this was actually done by the royal families
come contaminated and later kill any commoner of Polynesia in the past.
who walked on the same spot. The practice of children marrying each other
People inherited mana through both their was also practiced by some Egyptian royal fami-
fathers and their mothers lines. Thus, a child lies, and for the same reason: to conserve and

The royal family of Japan rules by divine right and follows the tradition of primogeniturethefirstborn son
becomes the ruler upon the death of hisfather. Emperor Hirohito, shown mounted on hisfavorite horse in 1936,
succeeded hisfather Emperor Yoshihito in 1926 and was succeeded by his sonAkihito in 1989.

130
 KINGSHIP

increase the royal essence in the royal line of Among the Zulu of South Africa, the king as a
descent. We see, then, that although the divin- matter of course killed all of his brothers to pre-
ity or supernatural power held by royalty differs vent their assassinating him in order to take the
in kind from one society to another, there is a throne.
common belief among all that this supernatural
power can be quantified, in the sense that it can
be determined that one person has or does not Beattie, John. (1960) Bunyoro: An African
have it, or that one person has more than does Kingdom.
another. British royal family members must Gluckman, Max. (1940) "The Kingdom of the
marry others who have "blue blood," as they say, Zulu of South Africa." In African Political
or give up any claim they have to occupy the Systems, edited by Meyer Fortes and E. E.
throne. Evans Pritchard, 25-55.
The fact that the royal essence, however it
Hocart, A. M. (1927) Kingship.
is expressed, runs through a line of descent (in
most cases) means not only that royal incest was Lloyd, Peter C. (1967) "The Traditional Politi-
practiced at times and in places, but that the cal System of the Yoruba." In Comparative
monarch's own siblings had large amounts of it Political Systems, edited by Ronald Cohen and
as well, and thus represented possible rivals to John Middleton, 269-292.
the throne. It was not unknown, therefore, for Oberg, K. (1940) "The Kingdom of the Ankole
European kings and princes to kill the members in Uganda." In Comparative Political Systems,
of their immediate families whom they regarded edited by Ronald Cohen and John
as threats to their own rule, present or future. Middleton, 121-162.

131
 ship between the two parties to the dispute,
called obligatio. It states the rights of one party
and the duties of the other with respect to each

L
other. For example, if a man steals the wallet of
another man, the legal authority might say in
his decision that, before the theft, the first man
had the duty to not take the wallet and that the
second man had the right to keep it. The au-
thority would also say, once the theft occurred,
that the second man had the right to have the
wallet restored to him and that the first man
had the duty to return it. There is, thus, a two-
directional relationship between the parties to a
dispute, and the authority states what that rela-
tionship is, how the initial relationship became
unbalanced by the offense, or delict, and how
the relationship may be repaired.
3. The third criterion is that law must be
regularly applied or, in other words, that the
The definition of law authority must apply the law in the same way in
LAW that has proven to be the all similar cases.This criterion maybe called the
most useful, as well as intention of universal application. A legal au-
one that can be used in all societies, is the one thority must, for example, use the same law
developed by anthropologist Leopold Pospisil: whether the disputants before him are his per-
law is "principles abstracted from decisions" sonal friends or not. If the authority gives pref-
(Pospisil 1978: 30). For example, a Micmac In- erential treatment to his friends, he is dealing
dian headman, when told that a man had killed not in law but in politics, and we may say that
another while both were out hunting, decided his decisions are politically corrupted. This does
that the homicide was not murder and that the not mean that all individuals are treated the same
killer had no legal liability because the killing way by authorities. For example, juveniles in our
was an accidental shooting. We may abstract society are treated by the courts very differently
from this decision the legal principle, or law, as than adults. Among the Inca of Peru, there were
follows: the individual who kills another through two separate legal codes, one for commoners and
an accident is not guilty of an offense. one for nobles. Commoners faced different sanc-
Law further has four criteria that must be tions than nobles when found guilty of a crime.
met for a legal principle to be truly a law. The commoners faced physical sanctions (beat-
1. The first criterion is that the legal deci- ings, death, forced labor), while the nobles faced
sion that contains the law must be made by a primarily psychological ones (public ridicule, loss
legal authority. Only someone who is authorized of office).
to make legal decisions can make a legal deci- 4. The fourth and last criterion for law is
sion. Decisions made by someone else are not sanction, or detriment. Legal authorities must
legal decisions and have no bearing. have the ability to impose sanctions or their
2. The second criterion is that the decision decisions will carry no weight. Sanctions may
contains a statement of the proper legal relation- be either negative, in which case rewards or

133
LAW ENFORCEMENT

favors that would have been granted had the law Law enforcement con-
not been violated are withdrawn, or positive, in L.\\v sists of giving force to
which case some painful physical or psychologi- EMX)RCI:MI.\T the laws made by the
cal experience is inflicted. When we think of legal (and sometimes
legal sanctions, we usually think of the physical moral) authorities. In the United States, two
sanction of imprisonment. Many societies, how- different kinds of professions enforce the law.
ever, almost never use physical or other coercive The first is the police, whether they are munici-
sanctions. The traditional Micmac of Cape pal, state, or federal police. The police stop the
Breton Island, Nova Scotia, for example, almost commission of illegal acts by arresting and bring-
never used physical sanction. Most often, they ing to the legal authorities those whom are be-
used psychological sanctions. Often, the legal lieved to have committed such acts. If the legal
authority would lecture the offender in public, authorities determine that the accused individual
thereby humiliating and embarrassing him. has committed an illegal act, they may prescribe
During an annual religious festival near one of some sanction. Sometimes, the sanction must
the reserves, people who acted improperly were be administered by a person or persons, and these
placed on a small island near the festival. The persons constitute the second kind of law en-
island was almost bare of vegetation; therefore, forcement personnel, known as penal officers.
the offenders could be seen by everyone at the Since the penal officers carry out the imposition
festival. Though the offenders could easily swim of the sanction, which is part of the law, they
away and escape, most did not as a matter of too are law enforcement officers. In the United
honor; instead, they simply sat out this period States, we see that law enforcement officers and
of intense public humiliation. legal authorities are separate. This helps to keep
Among the Kapauku Papuans of highland any group from having too much power. Imag-
New Guinea, on the other hand, economic sanc- ine if a police officer had the power to deter-
tion was usually preferred. A killer could some- mine an alleged offender's guilt, impose a
times pay blood money to avoid losing his own sanction, and then execute the sanction. Such a
life. If an individual refused to pay what he owed person would have a great deal of power in a
in a contract, his personal property was some- society and would be able to force a lot of people
times seized or destroyed. If a legal authority to do whatever he or she wanted, even illegal or
loaned money to a poor man, the authority unjust things.
would sometimes ask for the loan to be repaid However, in many technologically primitive
early if the man was insubordinate to him. societies, the police, legal authority, and penal
officer are all found in one and the same person.
A good example of this is the military societies
of the Cheyenne Indians of the North Ameri-
Pospisil, Leopold. (1974 [1971]) Anthropology can Great Plains. The military societies were
of Law: A Comparative Theory. given the responsibility, among others, of mak-
ing sure that the tribe s large communal bison
(1978) The Ethnology of Law. hunts went well. Cheyenne bison hunts were
large so that many bison could be killed at once.
Strouthes, Daniel P. (1994) Change in the Real Each time the bison herd was hunted, it would
Property Law of a Cape Breton Island Micmac run away from the hunters. This meant that in-
Band. dividual members of the tribe could not go about

134
 LAW ENFORCEMENT

hunting the bison by themselves, because this class and has the same interests, problems, and
would cause the herds of bison to become fright- concerns; once public opinion begins to turn
ened and to move far from the Cheyenne tribe, against an individual or group, it involves virtu-
making it difficult or impossible for the tribe to ally all of the band's population.
hunt the bison and endangering the survival of In one case, a couple spent so much time
the whole tribe. together that the rest of the band considered
At one point in time, the Shield Soldiers, a them legally married, despite the fact that no
military society, had ordered that no one was to minister had formally married them.
hunt the bison. A Cheyenne man named Man In a second instance, a man repeatedly
Lying On His Back With His Legs Flexed heard hunted outside of his band's territory, in the ter-
this and told the Shield Soldiers that because ritories of other bands. This caused political
his family was hungry, he was going to go out trouble for the members of his band, and so by
and kill some small game. The Shield Soldiers unanimous public opinion he was banished from
approved this. However, when Man Lying On the band and the band's territory. Unable to be
His Back With His Legs Flexed went hunting, admitted to any other band, he and his family
he came across by accident a herd of bison and starved to death; no family can long survive on
could not restrain himself from killing one. its own in the forests of northern Canada.
Someone reported this to the Shield Soldiers, Ostracism is used to enforce moral as well
and they went to pay a visit to the offender. They as jural law. We have, for example, the case of
decided his guilt on the spot and immediately Camatuet, a Naskapi man who married his own
began to impose the sanction of destroying his sister. Incest is not a criminal offense in Naskapi
tipi. Man Lying On His Back With His Legs law, and the headman took no notice of the
Flexed did not say a thing; he knew that he was matter. However, the rest of the community was
guilty and that he would suffer the sanction. outraged, and treated Camatuet as an outcast,
Of course, concentrating all this power in making him very anguished. His treatment made
the hands of one group could easily lead to him so miserable that he left the band.
abuses, and it did sometimes happen. Last Bull, Public opinion, finally, compels people to
one of the chiefs of the Fox Soldiers, another render assistance to others in need, even if those
Cheyenne military society, became too harsh in people are despised personal enemies. If an in-
his punishments when he acted as a policeman, dividual or family is in the forest in the winter
often beating people too severely. However, the and starving, he puts up signals to that effect
military societies are legal authorities when it where they are likely to be seen. If someone pass-
comes to the conduct of their own members, too. ing by does not help, he will likely face the same
As a result, the Fox Soldiers decided to remove fate if he is ever in trouble.
Last Bull from office. There are, however, three weaknesses in
The Naskapi Indians, a hunting and gath- public opinion as a means of law enforcement
ering people of Labrador, Canada, use consid- in Naskapi society. The first is that public opin-
erably different methods in enforcing their laws. ion comes into play only after an offense has been
For the Naskapi, the prime means of law en- committed. It cannot stop the commission of a
forcement is public opinion. The strength of crime, though it can act as a deterrent to those
public opinion is much stronger in a society like who think of it before deciding to commit an
the Naskapi than in our own because of the ho- offense. The second weakness is that public opin-
mogeneity of the society. Everyone is of the same ion only functions in the warmer months when

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LEADER

the entire summer band is collected. In the win- ral bird of a wholly unnatural shape who will
ter, when small bands split up to live and to hunt give the trespasser one more warning. Failure to
in the forest, it has little effect because few people heed that warning will bring a bear or a wolver-
can know of an offense. Finally, public opinion ine that will destroy the trespasser s traps. At this
is not usually aroused unless an offense affects point, the trespasser s hunting magic, which the
the welfare of the entire band. Offenses that af- Naskapi believe is essential for the ability to hunt,
fect only a nuclear or extended family are not and thus to survive, will be destroyed. The sha-
likely to bring the wrath of public opinion un- man thus enforces secular law by using the su-
less they are truly serious. pernatural world to punish those who break it.
Another agent of law enforcement among
the Naskapi is the headman and council, the lat-
ter of which is composed of the oldest and most Lips, Julius E. (1947) "Naskapi Law." Transac-
respected men. The headman and council met tions of the American Philosophical Society
in the summer, when the entire band was col- 37(4): 378-492.
lected in one place, to decide legal cases. In most
Llewellyn, Karl N., and E. Adamson Hoebel.
instances, the guilt of the accused was already
(1961 [1941]) The Cheyenne Way.
an established fact, which is not unusual for small
societies in which everyone knows everyone else s
business. The council was also responsible for
carrying out the sanction after the hearing According to Leopold
concluded. LKADKR Pospisil of Yale, a leader
Law enforcement is also provided in Naskapi is an individual who
society by the shaman, who deals primarily with makes a decision and leads in the execution of
cases of hunting law, especially that of hunting the decision; thus, one who is followed. A leader
territories. The shaman also functions primarily may also have authority.
during the winter months when the band is dis- Among the peoples of the Trobriand Islands,
persed and the headman and council are not in in Melanesia in the Pacific Ocean, village lead-
session. Winter is also the time that hunting ter- ership is acquired in a very special and precise
ritories are utilized and their borders infringed manner. First, to become a village leader, a man
upon. If one man discovers that another man must become a subclan leader. However, he can-
has been hunting on his territory, he will usually not lead just any subclan in order to achieve this
ask the second man to refrain from doing so. If status; the subclan must be of elite status. Such
the one breaking the law continues to do so, the subclans are known as guyau subclans, and these
territory owner may ask the shaman for his help. are considered by the Trobrianders as elite be-
The shaman will then try to discover the facts cause their members are believed to hold special
of the alleged offense on his own. If he finds powers, often supernatural ones, that make the
that the allegation is true, he will warn the tres- male members especially powerful and danger-
passer to cease trespassing by informing him that ous. In one region, for example, members of the
he had had a dream in which the trespasser was Tabalu subclan are believed to have magical con-
identified to him as a trespasser and then cau- trol over weather and economic wealth, and thus
tioning him that continued trespassing will cause were thought responsible for the prosperity of
him injury or other damage. Failure to heed the the entire island, making them the leading
second warning will bring the shaman to the subclan in that area. In another area, the
trespasser in the form of a very large supernatu- Toliwaga subclan was thought to control super-

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 LEADER

natural military powers and the men were The best way for a man to do this was to marry
thought to be great fighters; therefore, the Toli- a number of women, especially women who are
waga subclan was the most powerful in that dis- related to the right people. The more wives a
trict. Thus, the leadership of these subclans, and man had, the better were his chances of being
other guyau subclans, was a matter of great im- selected as the successor to the existing village
portance to all people of a village and, some- leader. Of course, for the young man this is not
times, larger areas. Those who became leaders merely as simple as marrying several women.
of the commoner subclans earned the notice only These women, and their children, must be sup-
of the members of those subclans. ported materially. This means more work for the
To become a leader of a subclan, especially ambitious leader-to-be. Not only must he grow
one of the guyau subclans, takes determination more food in his own gardens, he must also be
and perseverance, and many men simply do not diligent in his pokala activities so he can acquire
have the qualities of persistence and ambition more land on which to grow this food.
required. To become a village leader, one must But having wives brings not only an obliga-
be the legitimate successor to the previous leader, tion to feed them and their children. In addi-
who held his position until death. It is the pro- tion, men also must bear urigubu responsibilities.
cess of becoming a legitimate successor that takes These typically involve gifts to close relations.
drive and determination because of the amount In other words, a man who marries must give
of work entailed. The young man who sets his gifts, typically of garden produce, to some mem-
sights on becoming a leader of a subclan begins bers of his wife's consanguineal family. So, to
by giving gifts to and working for older mem- marry many wives in the pursuit of the position
bers of the subclan who are either older broth- of village leader becomes a great burden.
ers, mother's brothers, or mother's mother's Finally, it often happens that the existing
brothers; this activity is known as fulfilling the village leader is old and feeble for some years
pokala responsibility. Typically, the gifts range before his death. Often, the man who is chosen
from fish to firewood, and the help given in- by the old leader to bear the burden ofhispoka/a
cludes that of helping the older person with his responsibilities is the man who will become the
gardening work and with his commitments to next village leader. While the man who takes on
garden for others. While all young men must the task of helping the old leader must feel as-
provide these services, the one who wishes to be sured of becoming the next leader himself, he
noticed and selected to be a successor to the ex- can be, for years at a time, a slave to his own
isting subclan leader must work far harder; as a pokala and urigubu responsibilities, as well as the
subclan leader, he will be expected to assume a responsibilities of the elderly leader.
great many responsibilities involving physical Frequently, the ambitious man may be just
labor, and one who does not work hard would one of several men who seek to become village
be unsuitable. Not only does the hardworking leader. In their competitive efforts, the men must
young man achieve notoriety, he also has the work very hard to show themselves to be supe-
right to ask those whom he has been assisting rior to each other. Often, however, men attempt
for land or coconut palms of his own. to eliminate the others from competition
In addition to demonstrating an ability to through the use of sorcery and poison.
work hard, a man who wished to become a vil- The village leader plays several roles in the
lage leader needed to have a large number of the village. He is the spokesman for the village and
village people as his kin, since kin are likely to the chairman of village council meetings, where
support one of their own as the village leader. the adult men of the village discuss and decide

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LEASE

village matters. He has the right to make the villages in the cluster; if these women come from
final statement of village council decisions and subclans that are at odds with his own, he often
to lead the execution of these decisions, and he has to threaten them with war before they will
has the responsibility to lead public opinion in allow him to marry one of their women. Just as
support of the councils decisions. It is in this importantly, a man who wants to be a village
last role that the village leader is perhaps most cluster leader gives festivals that allow him the
powerful, for it is difficult for the individual to opportunity to display his wealth and generos-
ignore public opinion. Should an individual dis- ity. The man who is successful in these power-
regard public opinion, the other members of his gathering activities can sometimes extend the
or her subclan usually will shame the dissenter reach of his influence into village after village,
and even banish him or her from the village. Shame creating for himself a truly great amount of
sometimes leads a dissenter to commit suicide. power that sometimes becomes dictatorial in
A tool at the disposal of the village leader is nature. The Trobriand Islander leader is an in-
sorcery, and in his hands it is an acceptable sanc- formal leader whose potential power is limited
tion. However, he does not overuse sorcery, since ultimately only by his own characteristics and
to do so would call into question his abilities as abilities.
a leader.
See also BIG MAN; CHIEF.
A third device by which the subclan or vil-
lage leader can enforce compliance with his de-
cisions is to withhold from dissident individuals Powell, H. A. (1967 [I960]) "Competitive Lead-
land that they request through pokala. The vil- ership in Trobriand Political Organization."
lage leaders and the subclan leaders all have con- In Comparative Political Systems, edited by
trol of lands that are owned by either the village Ronald Cohen and John Middleton, 155-192.
or the subclan, respectively, but not by individu-
als. Those who do not defer to the leader s wishes
typically are unable to receive allotments of
this land.
The village leader, by having a great mea- A lease is a kind of con-
sure of personal power and control, sometimes LKASI: tract in which the owner
uses it to enrich himself. If he enriches himself of a property gives up to
at the expense of other members of his village, another party possession of the property in re-
he cannot expect to have his position indefinitely, turn for a consideration (usually known as rent).
however. But if he enriches himself and his vil- The lessee has exclusive right of possession
lage at the expense of outsiders, he may very well against all other parties in the world.
be lauded by other members of his village. In the following case, the owner of a piece
Finally, it often happens that several villages of property in Rhodesia (now Zimbabwe) that
are united under the leadership of a village clus- he had leased attempted to end the lease and eject
ter leader. This position is analogous to that of the tenant because he could no longer supply
the subclan leader and the village leader. A clus- water to the tenant, as the lease had required (The
ter leader must first be a village leader, and then Rhodesian Law Reports, 1968,1968(1): 192-194).
become the recognized successor to the existing
cluster leader. In order to gain power in other TUCKER v.BUCHAN
villages, however, the person who aims to be- Appellate Division, Salisbury
come a cluster leader marries women from other Quenet, J. P. and Macdonald, J. A.

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 LEASE

September 27th; October llth, 1968 MACDONALD, J. A.: The respondent in-
stituted an action in the Magistrate's Court
Landlord and tenant-lease-statutory tenant- for the ejectment of the appellant from a cot-
supplied with water by landlord-landlord unable tage situated in the grounds of the residential
to continue supply-whether sufficient grounds for property owned and occupied by the respon-
ejectment under s. 34 (1) (f) of Rent Regulations dent. The appellant, a statutory tenant, [foot-
317 of 1949. note: A statutory tenant is one who is a tenant
as described by the relevant statutes.] had been
Under a lease between the parties, the land- given notice to quit.
lord (respondent) agreed to supply the tenant The respondent based his claim for eject-
(appellant) with water for domestic use. Be- ment on the provisions of s. 34 (1) (f) of the
cause of a rapid depletion of his water supply Rent Regulations, Government Notice 317 of
the landlord could not continue to supply wa- 1949, as amended. The relevant portion of
ter to appellant without jeopardizing his own s. 34 reads as follows:
future supply. The landlord gave the tenant
"... no order for the recovery of posses-
(who was a statutory tenant) notice to quit and
sion of any dwelling or for the ejection
subsequently brought an action for ejectment.
of a lessee therefrom, which is based on
The claim was upheld on the ground that the
the fact of the lease having expired ei-
shortage of water was a sufficient reason un-
ther by the effluxion of time or in the
der s. 34 (1) (f) of the Rent Regulations for
consequence of notice duly given, shall
ejectment. The tenant appealed against this
be made by any court so long as the les-
decision and claimed that the proper course
see continues duly to pay in respect of
for the landlord was to cut off the tenant s water
the dwelling . . . the agreed rent, and
supply and leave him to obtain his own water.
performs the other conditions of the
lease, except on the additional ground
Held, dismissing the appeal, that the landlord's
inability through no fault of his own to con- (f) in the case of a dwelling only, on other
tinue to fulfill his contractual obligation to such ground which, regard being had to
supply water without serious risk to his own all the circumstances, is deemed sufficient
requirements justified his termination of the by such court."
tenancy and the magistrate was entitled to
"deem" that the acute shortage of water was The ground relied on by the respondent
an "additional ground" within the meaning of was his alleged inability to continue to supply
s. 34 (1) (f) of the Regulations. The cutting the appellant with water for domestic purposes
off of respondent's water was not an appro- in accordance with the agreement of the lease.
priate or legal remedy and failing an agree- This inability arose from the rapid depletion
ment resolving the difficulty, the landlord of the underground water which was the
acted correctly in giving notice to quit and respondent's only source of supply.
claiming ejectment. The magistrate was satisfied on the evi-
dence led that the respondent could not con-
tinue to supply the appellant with water from
TV. /. McNally for the appellant, referred to:
this underground source without jeopardizing
Akoon v. Thoolasmiah, 1963 (4) S.A. 498 (N). his own future supply and he accordingly
"deemed" this acute shortage of water to be "a
/. C. Andersen, for respondent, referred to: sufficient additional ground" within the mean-
Herbstein and van Winsen, CIVIL PROCE- ing of s. 34 (1) (f) and made an order for the
DURE IN SUPREME COURTS, p. 572. appellant's ejectment.

139
LEGAL ANTHROPOLOGY

The magistrate's finding that the respon- rectly in giving notice to quit and instituting
dent "was faced with a very serious water short- action for ejectment.
age and before the beginning of the next rainy Mr. McNally has submitted, however, that
season might have to transport water for justification for an ejectment order fell away
household use" is not challenged and this ap- when the appellant intimated in evidence that
peal was noted on the following ground: he would be prepared to make his own ar-
"The learned magistrate erred in hold- rangements for the supply of water.
ing that the shortage of water (his find- I am satisfied that this belated suggestion
ings on which are not disputed) by the appellant could not, in the circum-
constituted a ground for ejectment within stances in which it was made, constitute a de-
the meaning of Section 34 (1) (f) of the fence to the claim for ejectment. At most, it
Rent Regulations, 1949, as amended." might found a plea for a stay of execution but
since the case for the appellant has never, even
In amplification of this ground of appeal, at this late stage, been placed upon this re-
Mr. McNally submitted that "inability on the stricted basis, I do not propose to consider
part of the lessor to carry out one term of his whether under s. 40 (3) of the Rent Regula-
contract with the lessee cannot entitle him to tions a stay of ejectment order for an indefi-
withdraw from his other obligations. The nite period could properly be ordered. Even if
lessor's remedy was to cut off the water supply the magistrate had been prepared to grant the
and leave the lessee to seek whatever remedy indulgence of an indefinite stay of execution,
he could. The lessee had made it clear that he he would still have been obliged to make this
would have remained on, and made alterna- ejectment order claimed and award the costs
tive arrangements about water." of the action to the respondent.
The defence raised before the magistrate Accordingly, in my judgment, the appeal
was that there was in fact no shortage of water must be dismissed with costs.
as alleged by the respondent. In the course of
his evidence, but not in his plea, the appel-
QUENETJ. P. concurred.
lant, without resiling from his defence on the
merits, suggested that if in fact there was a
shortage as alleged he would be prepared to
arrange for the delivery of water to his cottage The Rhodesian Law Reports, 1968. (1968) Part 1.
from an outside source.
The respondent's inability through no
fault of his own to continue to fulfill his con-
tractual obligation to supply water to the ap-
pellant without serious risk to his own
requirements justified his decision to termi- Though the history of
nate the tenancy and the magistrate was en- LF.CAL legal anthropology as a
tided to "deem" that the acute shortage of water ANTHROPOLOGY discipline dates back
was an "additional ground" within the mean- perhaps only as far as the
ing of s. 34 (1) (f). I agree with Mr. Andersen s
publication of Llewellyn and Hoebels The Chey-
submission that the remedy suggested by Mr.
enne Way in 1941, most of the issues central to
McNallyto cut off the water supply to the
cottagewas not an appropriate or a legal legal anthropology, particularly justice, compara-
remedy and in the absence of an agreement tive law, the evolution of legal systems, and even
between the parties resolving the problem the definition of law itself, have been of interest
which had arisen without fault on the to legal scholars, philosophers, historians, and
respondent's part, the respondent acted cor- other thinkers for centuries. Thus, legal anthro-

140
 LEGAL ANTHROPOLOGY

pology provides a very broad cross-cultural per- this sense relative, and Montesquieu thought
spective to the study and understanding of law that law could not be brought from one society
in the human experience. to another (unless the two societies were cultur-
The history of legal thought in the West ally almost identical) because the law would not
essentially begins with the theory of Natural fit the recipient society's culture and needs. Law,
Law. The doctrine of Natural Law is based upon he believed, could only be just if it was made to
the idea that law exists independently of man fit in with the needs of a particular society at a
and thus does not change from one region to particular time; law cannot be judged either bad
another, nor does it change over time. Natural or good unless the society and time for which it
Law, because of its immutable character, may was designed is known.
be discovered only by philosophical contempla- Montesquieu also distinguished jural laws
tion, and the basic ideas behind it were devel- from scientific laws. The first, which are laws
oped by such ancient Greek philosophers as dealing with disputes, are completely relative in
Aristotle and Plato. The theory of Natural Law place and time. The second, which are generali-
held prime importance until the nineteenth cen- zations made on the basis of empirical evidence,
tury, and its emphasis on timelessness kept most are absolute and timeless. The former,
legal scholars from considering the question of Montesquieu said, derive from social nature, and
legal change. the latter from human nature.
Though Natural Law held center stage un- Montesquieu attempted to make some sci-
til quite recently, it had been attacked for some entific laws concerning systems of jural laws. He
time as a means for understanding law as it ac- claimed that jural laws are congruent with the
tually existed in different societies. The first per- kinds of government in a society at a particular
son to make a significant attack on the idea of time. Montesquieu, for example, noted that
Natural Law was Charles-Louis de Secondat, harsh laws went together with despotic
Baron de La Brede et de La Montesquieu, who leaderships. In societies with republican govern-
lived from 1689 to 1755. Montesquieu advanced ments, social equality under the law is sought,
the proposition that law was a phenomenon, not since the lawmakers were forced to live under
a preconceived philosophical notion. In other the same laws that they made for everyone else.
words, law exists separately from the human Montesquieu also noted that the legislator,
mind and can be studied as such. This revolu- the one who makes the rules that guide the legal
tionary thought, in fact, launched the whole field authorities in the making of laws, can only make
that we know as social science, including the legislation out of the ideas present in his own
subdisciplines of sociology and anthropology. culture and not from some philosophical abso-
Montesquieu conceived of law as a part of lute applicable to all people, as supposed by the
an individual culture. Thus, each legal system Natural Law theorists. For Montesquieu, it is
was a part of a single culture and was adapted to the legislator who takes the central place in the
fit in with the other parts of the culture. formation of every society's legal system. An-
Montesquieu thought of each particular culture other social thinker of renown, Emile Durkheim,
as a whole. When the overall government of the writing at the end of the nineteenth century, was
culture is bad, he said, even the best laws are a social determinist who believed that invisible
bad, and when the overall government is good, social forces within a society ultimately produce
even the worst laws are good. In other words, legislation and laws, and that the legislator is
law does not exist by itself, but only as part of a simply the tool by which the social forces are
government and a culture as a whole. Law is in translated into legislation. Durkheim attacked

141
LEGAL ANTHROPOLOGY

Montesquieu for allowing the legislator too is that it is essentially mystical. Laws emanate
much importance in determining the laws of the mystically from the Volksgeist, and it is the job of
society. the legislator to watch for their appearance and
Montesquieu also distinguished, from a sci- then to employ them without altering them.
entific point of view, legislative, executive, and Savigny limited his thinking about legal change
judicial functions, distinctions that are crucial to specific concrete societies rather than theo-
to the scientific understanding of law in any so- rizing about legal change in general. For ex-
ciety. He also noted that law is but one of sev- ample, he looked at the German legal system.
eral types of social control. He considered all of The German legal system was made up prima-
the following types of social control: governmen- rily of old Roman laws, which had largely dis-
tal principles, laws, religion, mores, and man- placed the previous Germanic law. Savigny's
ners. Whether one accepts these as stated or not, emphasis on Volksgeist led him to conclude that
one must say that for an eighteenth-century Roman law, because it was adopted over the pre-
scholar, this is a good accounting. However, vious Germanic law, proved that Roman law was
Montesquieu was unquestionably correct in stat- superior to Germanic law for the national spirit
ing that all of the various means of social con- of the German people.
trol influence each other, and that if one changes, For Savigny, law and the society in which
so too do all of the rest. Here Montesquieu was the legal system existed grew and matured to-
far ahead of his peers in showing the inter- gether, and then, using an organic analogy, died
connectedness of cultural traits and complexes together when the nation lost its nationality. A
with each other. He also found that in different young nation begins with legal ideas that are not
societies the different means of social control clearly formulated or stated, he said. For this
have different importances. In some, religion reason, it is useless to try to codify the laws. A
was predominant, in others laws, and in yet oth- nation in its middle age reaches the full flower
ers mores; when one declined in importance, of its legal development. The jural system ac-
one or more of the others had to increase in quires a great deal of skill, and there is consider-
power to maintain social control and social able thought given to the law by specialists
integrity. dedicated to the operation of the legal system.
Montesquieu's intellectual contributions, It is at this point that law may be profitably codi-
unfortunately, were not recognized by his con- fied, though the only real reason to codify law,
temporaries, and, in fact, it was not until the in Savigny s opinion, is to preserve it for history.
nineteenth and twentieth centuries that he re- When a society reaches the final stage, that of
ceived the acclaim he was due. One who did see decline and the destruction of national identity,
the value of Montesquieu's work early on was the legal system becomes divorced from the
the German scholar Friedrich Karl von Savigny, needs of the people and is controlled by a very
who lived from 1779 to 1861. few people. Savigny's theories suffered from a
Savigny rejected the validity of Natural Law lack of information about legal systems outside
and sought to find a pattern linking each society s of Europe, and from an overly great reliance on
legal system to its overall society and culture. the socially deterministic idea that nations must
Savigny claimed that law, along with other as- pass through three stages that are the same for
pects of a society's culture, developed out of the all peoples and that, no matter how aware of
historical evolution of the society's Volksgeist (na- the process a people might be, they are power-
tional spirit), which was entirely unique to the less to alter the course of those changes. Finally,
particular society Savigny's idea of the Volksgeist Savigny s idea of Volksgeist was to be revived in

142
 LEGAL ANTHROPOLOGY

altered form in the ideology of the Nazis in the der the fictional idea of a common male ances-
twentieth century, for whom it became a justifi- tor. As the tribal state continued to evolve to
cation for a great many atrocities. the next stage, the importance of territory to
Following somewhat in the footsteps of social groups increased.
Savigny was the great British jurist Sir Henry The next stage Maine called the territorial
Maine, who lived from 1822 to 1888. Maine society. In this society, the unifying principle of
was also a law professor at Cambridge Univer- a common kinship became less important as the
sity and a professor of jurisprudence at Oxford. size of the group increased. Instead, the social
Maine advanced the study of law by rejecting bonds created by the sharing of a common ter-
the idea that each nation has a mystical Volksgeist ritory became important. Towards the end of this
that guides the development of its legal system. stage, law began to take shape. This was accom-
Maine stressed instead the study of empirical plished by the emergence of aristocracieselites
phenomena to understand how legal systems who replaced the old family leaders. These elites
changed over time. His overall approach was were priests and lawyers and claimed special
heavily influenced by the theoretical interest of knowledge of the law. Because the rest of soci-
the time, Darwinian biological evolution. Con- ety distrusted the elites, they were forced to write
sequently, he phrased his explanation of the the law down in a codified system so that it could
change of legal systems as evolutionary. He did be seen by all and applied to all equally.
say that forces of evolution acted similarly on The following stage of legal evolution came
legal systems everywhere, but argued against a about due to the very nature of the legal codes
unilineal model of evolution in which all legal themselves. Since the codes were written, it now
systems went through the same uniform pro- took special effort to change them, as opposed
gression of stages in exactly the same way. to the previous situation in which laws would
For Maine the law developed along a string change as people failed to remember them ac-
of a single set of stages, although many socie- curately from one point in time to another. The
ties' legal systems went through them slightly result of the codification of law was that at this
differently. On the whole, however, similarities point two types of societies began to develop,
among legal systems in their evolution are far one progressive and wanting always to change
more numerous than differences between them its legal system, and one stationary, always want-
due to the fact that human nature is the same ing to preserve its legal system as it was. The
everywhere, he said. progressives used three methods to achieve their
The first stage in Maine's legal evolution is goal of changing the legal system. The first was
known as the "archaic society," which we today the use of legal fiction. Here, Maine gives the
would call the extended family. In societies at term legal fiction a special meaning that it does
this level, Maine believed, the family was run not have elsewhere. For Maine, a legal fiction
by the eldest male, who made decisions, but the was a situation in which the codified law had
decisions had no basis in a clear principle that not changed, but the law itself had, and those
he would use again in similar circumstances. dealing with the law maintained a fiction that
Maine's second evolutionary stage, called the the law had not, in fact, changed by pointing to
tribal state, also had no law. This state was simi- the codification to show that it was unchanged.
lar to the archaic society in that it was domi- This promoted acceptance of legal change in the
nated by the eldest male. The tribal state, Maine population at large by making people believe
believed, was nothing more than a group of ar- falsely that no change had occurred. Legal
chaic societies that were grouped together un- change also occurred through the use of equity,

143
LEGAL ANTHROPOLOGY

which by overriding normal legal systems allows theory but rather in his example of trying to use
for new principles to be introduced into the law, empirical data to make general conclusions.
as was done in ancient Rome. The third and most Another evolutionist who attracted a good
powerful way in which Maine saw legal change deal of attention in the field of legal studies was
as occurring at this stage was through legisla- Herbert Spencer. Spencer, a former railway en-
tion, which allowed those in power the right and gineer, was known for an evolutionist approach
ability to change the law according to their that was completely unempirical in either its
wishes. methods or its goals. Rather, Spencer relied en-
Overall, Maine asserted that, although dif- tirely upon rational speculation. For this reason
ferent societies' legal systems evolved at differ- his theory of legal evolution should not be given
ent rates, the overall direction of evolution was much weight at all today. He believed that the
away from law centered around the family (for direction of legal evolution is towards the even-
example, patria potestas) to law focused on the tual dissolution of the legal system in favor of
individual. At the same time, as part of this over- a purely ethical system of regulating human
all development, the law's central concern went behavior.
from that of status (especially ascribed status) to A third evolutionist who gained notoriety
contract. As the society became more and more is E. A. Hoebel, a legal anthropologist. Accord-
egalitarian, status became less important as a ing to his theory of legal evolution, the earliest
regulatory mechanism and the law shifted to the stages of legal development may be seen in band
use of contract as a mechanism of social control. and tribal societies. In such societies, he says,
People who live in societies in the later stages of homicide and adultery are the sources of dis-
legal evolution are regulated by the law more by pute, and these are treated by the legal authori-
the type of contracts into which they enter than ties as private disputes rather than as crimes. At
by their status. this stage of development, he says, criminal law
Another advance in legal evolution was the as a whole is weak. Further, offenses against per-
development of criminal law. Wrongs were, in sons are the largest part of law, and law dealing
earlier stages, only torts, or private wrongs be- with property offenses is poorly developed be-
tween the two parties to the case. As legal sys- cause there is little property to be the source of
tems developed, they made wrongs a matter of trouble. The next higher stage of law, Hoebel
interest to the whole society. That is, they made says, is found in horticultural (or gardening) so-
many types of wrongs offenses against the group, cieties, where the law has to take into account
or crimes. disputes over land.
The flaws in Maine's work are many. First, Yet another evolutionist and his collabora-
he had no information on technologically primi- tor gained a great deal of attention and indeed
tive societies. Thus, he was left to speculate on became two of the nineteenth and twentieth
them and their legal systems. Subsequent stud- centuries' most influential social thinkers. These
ies of technologically primitive peoples has are Karl Marx and Friedrich Engels, whose ideas
shown that the patrilineal family bond is not are discussed in the entry on Marxism.
universal and that many technologically primi- Emile Durkheim, the father of sociology,
tive peoples are territorially bound. There are also had his own unique ideas concerning the
many other faults in this theory; in fact, most of evolution of law. For him, the question was not
what he said about the development of legal sys- primarily one of law, but rather of social soli-
tems has turned out to be incorrect. Maine's con- darity, the forces that help keep societies to-
tribution lies not in the specific details of his gether. In technologically primitive societies, the

144
 LEGAL ANTHROPOLOGY

social fabric is maintained by mechanical soli- were those that produced the greatest utility. But
darity. That is, people are kept together by the his use of the term utility is different from the
similarity of their beliefs, attitudes, desires, be- usual use of the word. By utility, Bentham re-
haviors, and values. In other words, societies are ferred to the amount of pleasure produced in
culturally homogeneous. Law comes into the relation to the amount of pain produced by
picture when somebody disturbs the status quo, something else. For Bentham, a just law was one
and the rest of the members of the society pun- that resulted in the greatest amount of pleasure
ish the offender. In such cases, the collective and the least amount of pain. The problem with
action against the offender helps bind the other this theory is that what ^pleasurable and what is
members of the society together. Law in tech- painful differs from society to society, and thus
nologically primitive societies, according to Bentham's theory cannot be applied equally ev-
Durkheim, is entirely penal, and its only goal is erywhere. Further, the idea that all people ev-
to punish. From there, societies and legal sys- erywhere are primarily interested in pleasure for
tems progress into the kind of societies and le- themselves as individuals is untrue, since there
gal systems we have in technologically advanced are many people who undergo painful experi-
societies, where legal sanctions are restitutive in ences or who deny themselves pleasures in or-
nature (restitutive sanctions attempt to restore der to advance the interests of others or to benefit
the original relationship between the two par- themselves or society in general.
ties; if someone steals, restitutive sanctions would A later figure in the field of procedural jus-
demand that he return to his victim what was tice, one who is ultimately responsible for the
stolen and apologize for the theft). In his gen- interest of legal anthropologists in the subject of
eralizations, Durkheim has since been proven cultural values in law, is Josef Kohler. For Kohler,
wrong by a multitude of studies of the peoples a just law must reflect the values held by the
in technologically primitive societies. Also, his people to whom the law applies.
division of legal systems and societies is unwar- Roscoe Pound, an American who lived from
ranted; there are many similarities between so- 1870 to 1964, expanded upon Kohler s idea. In-
cieties, and differences do not always obtain on stead of looking at the values held by the people
the basis of whether they are technologically as a model for just law, Pound said, just law must
advanced or not. As far as the matter of legal rest upon the values the people say they want
sanctions go, we can see that in technologically reflected in their law. In other words, if the ma-
advanced societies, we often use punitive sanc- jority of the people actually believe in something
tions and do not rely always on restitutive sanc- that is perhaps good for them individually, but
tions. Also, in many technologically primitive bad for the group as such, then they should want
societies, restitutive sanctions are preferred. the law to reflect the best interests of the group.
Durkheim's beliefs were wholly speculative in For example, if people in the United States each
nature. want to drive their own cars at 100 miles per
Legal scholars have also long been interested hour on the highways so that they can get where
in the subject of legal justice, especially the sub- they want to go more quickly, they also realize
discipline of procedural justice, which is con- that if everyone drove at 100 miles per hour,
cerned with how ideas of justice are implemented many more people would be killed. Therefore,
in actual laws. An early thinker on the subject they support speed limits that are much lower.
was Jeremy Bentham, who lived from 1748 to Another theory of justice was developed by
1832. Bentham's primary interest was in proce- the legal anthropologist Leopold Pospisil. He
dural justice. Bentham believed that the best laws discovered while working with the Kapauku

145
LEGAL ANTHROPOLOGY

Papuans of New Guinea that people often did the direction of closer attention to law as it re-
not agree with the laws their authorities used in ally is and away from the logical examination of
making legal decisions. These laws, Pospisil de- abstract rules. Law should be studied, he said,
cided, were not psychologically internalized. in concert with the study of other phenomena
That is, the people did not consider them proper of the same society. The approach that Holmes
Kapauku laws, but rather as foreign to their cul- pioneered is known as the American School of
ture and thus immoral. However, Pospisil noted Legal Realism, which is discussed in the entry
that as time went on, the values of these laws on Legal Realism.
often became accepted, or psychologically in- A follower of Holmes's legal realism, Karl
ternalized, and so became regarded as moral and Llewellyn, actually put the idea of legal realism
just after a period of time. Likewise, laws that to use in his study, with E. Adamson Hoebel, of
had previously been regarded by the people as the legal system of the Cheyenne Indians, The
just and moral were no longer considered so, and Cheyenne Way, which properly began the field
they were either discarded or imposed against of legal anthropology. The book makes use of
the will of the people by the legal authorities. case studies that tell the reader in concrete de-
The degree of psychological internalization, tail about the Cheyenne legal system.
therefore, provides a useful measure of the just- The anthropologist and Africanist Paul
ness of any particular law. Further, this standard Bohannan has done famous work on the laws of
can be used as a measure of legal change as well, the Tiv of Nigeria. Bohannan is best known for
showing how new laws come into use and later calling attention to the theoretical distinction
are repealed. between folk (native or indigenous) systems of
Pospisil is known for two additional contri- classification and theoretical (cross-cultural)
butions to the field of legal anthropology. One ones. Bohannan essentially repudiates the use
of these is the theory of the multiplicity of legal of theoretical systems to describe alien folk le-
levels, or legal pluralism, discussed in its own gal systems as ethnocentric.
entry. The other is his cross-culturally applicable
See also JUSTICE; LAW; LEGAL REALISM; MARX-
theory of law, discussed separately in the entry
ISM; MULTIPLICITY OF LEGAL LEVELS; NATURAL
on Law.
LAW; PATRIA POTESTAS; REASONABLE MAN; TER-
Another major figure in twentieth century
RITORIAL PRINCIPLE OF LAW.
legal anthropology is Max Gluckman, who is
well known for his fieldwork in Africa and his
theoretical contributions. He is probably best
known for finding the legal standard of behav- Bentham, Jeremy. (1876 [1780]) Introduction to
ior known as "the reasonable man" among the the Principles of Morals and Legislation.
Lozi people. Gluckman hypothesized that this Bohannan, PaulJ. (W^lz) Justice and Judgement
standard exists in every society in the world. among the Tiv.
Gluckman s other major theoretical contribution Durkheim, Emile. (1933 [1893]) The Division
is to elucidate how law is a process that takes of Labor in Society.
place over time.
. (1953) Montesquieu et Rousseau.
Oliver Wendell Holmes, the well-known
jurist and member of the United States Supreme French, Rebecca. (1990) The Golden Yoke: A Le-
Court, was also a theoretical scholar of some gal Ethnography of Tibet Pre-1959.
repute. His major contribution was to point le- Gluckman, Max. (1955) Custom and Conflict in
gal scholars, including legal anthropologists, in Africa.

146
 LEGAL DECISION

. (1965a) The Ideas in Barotse Juris- Spencer, Herbert. (1893) The Principles of Eth-
prudence. ics. Vol. II.
. (1965b) Politics, Law and Ritual in . (1899) The Principles of Sociology. Vol. II.
Tribal Society. Stone, Julius. (1950) The Province and Function
. (1967) "The Judicial Process among the of Law.
Barotse." In Law and Warfare, edited by Paul Stark, W. (1960) Montesquieu: Pioneer of the So-
J. Bohannan, 59-92. ciology of Knowledge.
(1974) African Traditional Law in His- Starr, June. (1978) Dispute and Settlement in
torical Perspective. Rural Turkey: An Ethnography of Law.
Gluckman, Max, ed. (1969) Ideas and Procedures
in African Customary Law.
Hoebel, E. Adamson. (1954) The Law of Primi-
tive Man.
Llewellyn, Karl N., and E. Adamson Hoebel. According to Leopold
(1961 [1941]) The Cheyenne Way. LKC.AL DIVISION Pospisil of Yale, legal de-
cision is a statement by
Maine, Henry Sumner. (1963 [1861]) Ancient a legal authority (headman, judge, chief, father,
Law. mother, etc.) by which a dispute is settled, by
Malinowski,Bronislaw. (1959 [1932]) Crime and which a party or parties is advised before legally
Custom in Savage Society. relevant behavior takes place (declaratory deci-
Montesquieu, C. L. J. de Secondat, Baron de la sion), or by which approval is given to a previ-
Brede et de. (1750) De I'esprit des his. ous solution of a dispute made by the parties
Vols. I, II. before the dispute was brought to the attention
Moore, Sally Falk. (1978) Law as Process. of an authority (such as approval of self-redress).
Legal decisions in the same type of cases
Nader, Laura. (1964) "An Analysis of Zapotec
change as the legal authority himself or herself
Law Cases." Ethnology 3(4): 404-419.
changes. The authority's behavior is dynamic,
Nader, Laura, and Duane Metzger. (1963) changing over time, and decisions he or she
"Conflict Resolution in Two Mexican Com- would have made at one time would not be the
mumtizs." American Anthropologist 65(3) part same later on. Another characteristic of legal
2:584-592. decisions is that they are common to all func-
Offner, Jerome A. (1983) Law and Politics in tioning groups. Groups that have a function, or
Aztec Texcoco. purpose, always have a leader who makes the
Pospisil, Leopold. (1974 [1971]) Anthropology decisions necessary to the group's functions. If
of Law: A Comparative Theory. this were not the case, the group would have no
reason to be, and would likely cease to exist.
Pound, Roscoe. (1942) Social Control through
A declaratory decision is one in which a le-
Law.
gal authority rules on what the legal conse-
. (1965) An Introduction to the Philosophy quences of a future act might be. For example, if
of Law. a third-grade boy wants to hit one of his class-
Savigny, Friedrich Karl von. (1831) On the Vo- mates in class, he might ask the teacher, "What
cation of Our Agefor Legislation and Jurispru- would happen if I hit Billy?" The teacher would
dence. Translated by Abraham Hayward. reply with a declaratory decision, which might

147
LEGAL FICTION

be "Then I would have to tell your mother that legislatures. The expression of this idea was first
you behaved badly in school today "This conse- made strongly in the United States by Oliver
quence might cause the boy to refrain from hit- Wendell Holmes, who is credited in doing so
ting Billy with starting the American School of Legal Re-
Sometimes a legal decision gives approval alism. Prior to Holmes s argument, legal schol-
to an act that already solved a dispute. If a man ars were accustomed to studying the statutes for
shoots and kills an intruder in his house, there an understanding of how the law works. The in-
might be a court hearing, where the judge might fluence of the American School of Legal Real-
exonerate the man who did the shooting of all ism dramatically changed the way in which law
legal charges. schools teach law. In fact, law schools today pay
almost exclusive attention to legal decisions
(which are called "case law" by U.S. lawyers) in
Pospisil, Leopold. (1974 [1971]) Anthropology their lessons, and little or no attention to rules
of Law: A Comparative Theory. (which are called "statute law").
See also LEGAL ANTHROPOLOGY.

A legal fiction is an as- Pospisil, Leopold. (1974 [1971]) Anthropology

I j;r,,\i. FICTION sumption of something of Law. A Comparative Theory.
as factual under the law
that is not actually true. Legal fictions in the
legal systems of the United States include adop-
tion (the law treats an adopted child as if he or
she were the parents' natural child, and treats
the natural parents as if they were never the A legal right may be de-
adopted child s parents), corporation (an artifi- Lix; \ i , Rir.irr fined as the legal expec-
cial person under the law, a corporation has no tation that someone else
existence whatsoever outside of the law), and will behave toward the holder of the right in a
statutory rape (in which a person below a cer- certain way. A legal right is one-half of a jural
tain age who has sexual intercourse with a per- relationship between the holder of a right and
son above a certain age is deemed under the law another party, who may be one person or all per-
as having given no consent to sexual intercourse, sons. A right only exists when another party has
whether or not consent was given). a duty to the holder of the right. Duty is defined
as the expectation that one will behave toward
See also ADOPTION; CORPORATION; LEGALISM.
the holder of a right in a certain way or be pun-
ished by law. A citizen of the United States, for
example, has the right of freedom of speech when
in the United States. Everyone else has a duty
Legal realism is the idea not to infringe upon that right. This is discussed
Li;r,.\i. REALISM that for a true under- further in the entry on Fundamental Legal
standing of the laws in Conceptions.
effect in a society, one must study actual legal In Western legal systems, legal rights have
decisions rather than rules or statutes made by long been divided into rights in personam and

148
 LEGALISM

rights in rem. The Latin term in personam may

be translated as "into or against the person."The
term in rem signifies that the rights are against
the res or thing, rather than against the person.
Most rights are rights in personam.
Rights in rem are exercised against property,
with the object of disposing of property without
reference to the title of ownership of claimants
to the property. An example of a legal action in
rem would be for foreclosure of a lien upon a
house. The holder of a lien (such as a bank) will
go to court to acquire title of ownership to the
house if the owner of the house has not kept up
with his or her mortgage payments. The origi-
nal owner would not need to appear in court,
since he or she is not a party to the action.
This dichotomy between rights in rem and
rights in personam is a false one that only West-
ern legal systems use. Legal relationships can
actually exist only between living people. The
example of foreclosure on a lien is a legal action
between the bank and the mortgage holder, in
which the bank seeks to take away the rights of American jurist Oliver Wendell Holmes (1809-1894)
ownership from the owner. Only persons may
be party to legal actions, in reality. If rights re-
sided in res, or in a thing, then someone could Legalists believe that all undesirable behav-
legally give ownership of a house to a tree. This ior may be controlled through rules that are spe-
is impossible in any legal system, since owner- cific to every possible situation. It is the rules
ship consists of jural relationships between themselves that are the foundation of law rather
people only. than, as in many societies, various principles of
See also FUNDAMENTAL LEGAL CONCEPTIONS. justice that guide the legal authority. The law
under a legalist system considers a party to a case
not as a person, but as a role-player as described
by the rule. To the legalist, the legal authority
should have no creativity, but should merely find
Leopold Pospisil has de- the facts of a case and match them to the appli-
LKGALISM fined legalism as "an ex- cable rule.
treme emphasis upon Some legalistic ideas:
abstract rules, which are regarded as the objec- 1. Law is a priori.
tive revelation of the legislator's will, as the
2. Law is the final answer to every problem.
exclusive manifestation and source of law. The
individual rules themselves are seen as the 3. Law is autonomous.
exclusive and concrete answers to particular 4. Law can only be changed by another rule
disputes." explicitly changing the original rule.

149
LEGALISM

Nineteenth-century author Vctor Hugo attacked French legalism in his novel Les Miserables, publishedin 1862.
A contemporary artist, Honor Daumter, represents a courtroom scene ofthe period.

Court procedure under a legalist system also in legalistic societies are usually written down
differs from that practicad, for example, in the together in a code) can take all offenses into ac-
United States (which, though somewhat legal- count, but legalists believe that it is necessary to
istic, is not extremely so). Evidence that does try to describe in their statutes all of the pos-
not apply to a rule is inadmissable. In Vctor sible variations of a particular offense, so that
Hugo s great novel Les Miserables, which was an the statute can control the prohibited behavior
attack on French legalism, the question that with little action by the legal authority except to
faced the protagonist in court was "Did he steal?," match the actions ofthe accused with a particu-
and the court could not consider the facts that lar statutory rule. For example, rather than sim-
he stole only a loafof bread and that he did so in ply making a statute against the fraudulent
order to feed his starving children. Questions of alteration of elections in Canad, legalism there
justice in any particular case are unimportant; prompted the legislature to pass the following
what is important is the rule. legislation covering every imaginable means of
Since human behavior and human social altering the election process (Prefix to Statutes,
relations are so complex, no set of rules (which 1960: 54-55):

150
 LEGALISM

Section 29. Everyone who including any compartment, appliance, device

or mechanism by which a ballot paper could
(a) forges, counterfeits, fraudulently alters, be secretly placed or stored therein, or having
defaces or fraudulently destroys a ballot paper been deposited during polling, may be secretly
or the initials of the deputy returning officer diverted, misplaced, affected or manipulated;
signed thereon; or
(b) without authority supplies a ballot pa- (1) attempts to commit any offence speci-
per to any person; fied in this section;
(c) not being a person entitled under this
Act to be in possession of official ballot paper
is disqualified from voting at any election for
or of any kind of ballot paper, has any such
a term of seven years thereafter and guilty of
official ballot paper or any ballot paper in his
an indictable offence and liable, if he is a re-
possession;
turning officer, election clerk, deputy return-
(d) fraudulently puts or causes to be put
ing officer, poll clerk or other officer engaged
into a ballot box a paper other than the ballot
in the election, to imprisonment, without the
paper which is authorized by this Act;
alternative of a fine, for a term not exceeding
(e) fraudulently takes a ballot paper out
five years and not less than one year, with or
of the polling station;
without hard labour, and if he is any other
(f) without due authority destroys, takes,
person to imprisonment for a term not exceed-
opens or otherwise interferes with a ballot box
ing three years and not less than one year, with
or book or packet of ballot papers then in use
or without hard labour.
for the purposes of the election;
(g) being a deputy returning officer
fraudulently puts, otherwise than as authorized The repetitive nature of the statutes of le-
by this Act, his initials on the back of any pa- galists are a product of the legalists' belief in the
per purporting to be or capable of being used central importance of the statutes rather than of
as a ballot paper at an election;
allowing legal authorities to make up their own
(h) with fraudulent intent, prints any bal-
minds as to what constitutes a transgression of
lot paper or what purports to be or is capable
of being used as a ballot paper at an election; the law. But it is still possible for someone to
(i) being authorized by the returning of- offend the spirit of the law while not breaking
ficer to print the ballot papers for an election, an actual statute. What do the legalists do then?
prints without authority more ballot papers Section 281.2 of the Canadian Criminal
than he is authorized to print; Code of 1987 prohibits public incitement of ha-
(j) being a deputy returning officer, places tred by communication of statements in which
upon any ballot paper, except as authorized by communication takes place by "telephone, broad-
this Act, any writing, number or mark with casting or other audible or visible means." But
intent that the elector to whom such ballot one can imagine a situation in which incitement
paper is to be, or has been, given may be iden- of hatred occurs through communication in
tified thereby;
Braille! What does the legalistic legal system do
(k) manufactures, constructs, imports into
in such a case? The judge would apply analogia
Canada, has in possession, supplies to any
election officer, or uses for the purposes of an legis (analogy of rule), which would make the
election, or causes to be manufactured, con- rule applicable in this situation because case and
structed, imported into Canada, supplied to rule are similar.
any election officer, or used for the purposes Legalists typically like to extend the appli-
of any election, any ballot box containing or cation of the rules as far as possible, even to the

151
LEGALISM

point of resorting to legal fictions. There is, for wrongs and light penalties for major wrongs.
example, the fiction of corporation, in which a Drug dealers convicted of selling small amounts
business is literally given the legal status of a of drugs now face mandatory sentences in the
person. Here, the legalists have simply extended United States, and the crowding in prisons
the rules regarding persons to businesses, rather means that violent felons are being released early
than draw up a whole new set of rules to apply so that drug dealers can be incarcerated.
to businesses. There is also the legal fiction of In the former Soviet Union during Stalins
no evidence. In U.S. statutes, there is a rule that reign, harsh sentences were thought to be effec-
evidence cannot be legally collected in certain tive ways to curb undesirable behavior. So, rather
manners. The U.S. courts have extended that than rewrite all of the statutes, legal authorities
rule so far that they treat evidence collected in would use the principle of analogy and deter-
an illegal manner as if it did not exist by making mine that a civil infraction was actually a crimi-
it inadmissible in court. In European courts, by nal one because of some resemblance to the
contrast, illegally collected evidence is admis- criminal offense, and so give a much harsher
sible, although the person who collected it ille- sanction. Likewise, minor crimes were held to
gally could face criminal prosecution. Another be like major crimes on the principle of analogy,
legal fiction in U.S. law is statutory rape in cases and the sanctions that the offenders would bear
in which the underage individual gave consent would be those of the major crime and not the
to sex. The legalists simply extended the rules minor one they had actually committed.
on rape to apply to those who have sex with A famous case in the United States involved
underage persons rather than draft a new rule to a sheriff who arrested a mailman for murder. The
prohibit sex with underage persons (as was done sheriff was then himself arrested for delaying the
in Canada). mail, because the mailman was on his delivery
Legalists sometimes will find the rule that rounds at the time that he was arrested. The
they want to apply and then apply it even if the sheriff s conviction was upheld by all courts un-
facts do not fit the case. A good example of this til it reached the Supreme Court, which over-
was the case in which Dr. Mudd was found guilty turned the sheriff s conviction as unreasonable.
of being an accessory to murder because he set Another amusing case of injustice being cre-
the broken leg of John Wilkes Booth after he ated by following the legal rules too closely oc-
killed Abraham Lincoln. Dr. Mudd could not curred in the 1960s and involved a Micmac
have been an accessory to murder because the Indian woman who was in the state of Maine to
murder had occurred long before Dr. Mudd and participate in the potato harvest. She and her
John Wilkes Booth met. Legalists typically care husband were parked in the woods in October,
little for the extenuating circumstances involved which is moose mating season. At this time of
in a case. year, male moose are easily irritated and will at-
In some respects, legalism does promote jus- tack things that they dislike for no clear reason.
tice, since it requires that all like cases be treated A male moose, which can weigh more than one
uniformly. The United States has a somewhat ton, saw the car and attacked it, threatening to
legalistic legal system. Thus, a judge in western tip it over. The Micmac woman left the car,
New York State treats a drug dealer much the same opened the trunk, and picked up the bumper
way as does a judge in Long Island, New York. jack. With this, she beat the moose on the head
However, extreme legalism can also create and killed it. She was arrested for killing a moose
many injustices. It is often the case in legalistic out of season and jailed (though she was released
societies that there are stiff penalties for minor later).

152
 LEGALISM

Yet another problem with making laws rigid Li is modified by /, or "justice." It was per-
is that, when society changes, the laws do not missible under //, for example, for a man to re-
reflect social reality, which is why we have so turn a sterile wife to her family, but /demanded
many so-called dead laws on the books. Dead in one notable case that, since she had no home
laws are actually dead statutes or statutes that to return to, she must remain with her husband.
are no longer being applied by the courts. The Chinese called rules (or statutes) y#.
Legalistic societies tend to have harsher pun- Their purpose was to aid inexperienced judges.
ishments than societies that are not legalistic. In the Confucian era, li was always paramount
Legalism is generally the result of judges and and^/# was not followed closely. The Ch'in le-
lawyers who want more power in society. The galists, however, disregarded // entirely and made
storming of the Bastille during the French Revo- fa the legal standard. Whereas //' was expressed
lution was a revolt against legalism; the Bastille in short, vague general principles,^ was far more
held not only prisoners, but also the offices of applicable to actual legal disputes. The Ch'in
judges and lawyers. Ever since then, the French legalists promoted legalism so as to increase the
have continued to fight legalism by prohibiting power of the state and to unite China, which at
lawyers from becoming members of the French the time was a collection of states that often
parliament (though special permission may be fought each other. A central authority would, of
granted in some individual cases). course, need a strong legal code, since it could
One significant example of legalism is that not exist if judges in different parts of China
of China during the Ch'in Dynasty (221-206 applied the law differently, basing their decisions
B.C.). To understand the impact of the move- on the vague principles of//. The legalists ended
ment toward legalism at that time, it is neces- the variations in what was considered a crime
sary to have some knowledge of Chinas previous and what was considered an appropriate sanc-
legal system and Chinese society generally. tion. The following are central ideas of Chinese
Confucian philosophy was an important set legalism:
of guiding principles in Chinese life prior to the 1. Human ethics maybe changed at the stroke
Ch'in Dynasty. One of the important principles of a pen, by writing a new rule.
advanced by Confucius was to push the concept
of // into prominence in daily life. Li may be 2. Obedience cannot be learned by example.
defined as custom based on ethical principles, A good mother, they said, may have a spoiled
principles that were formerly the nobleman's child.
code of behavior. At the time, these principles 3. Man is basically evil.
were considered binding above all legal prece- 4. Good law is law that strengthens the state
dent and were far more important than statutes. and the power of authority.
Li was taught paternalistically and by example. 5. Law originates from authority, not from
Leaders were expected to follow the principles justice.
of li very scrupulously.
6. Law can provide all answers to social
According to Confucian philosophical te-
problems.
nets, law punishes wrongs but does not make
for better people. In fact, Confucius argued, law 7. The function of law is to stop wrongs, and
only encourages people to avoid punishment not to encourage goodness.
rather than to develop a sense of shame. What 8. Criminal offenses are an attack upon the
is needed, Confucius said, is for peoples' hearts state, and therefore should be severely
to improve, and this was to be done through li. punished.

153
LEGITIMACY IN LAW

9. There is no difference between the good recognized child. Legitimacy is established by

man who commits no crimes and the bad the legal recognition of filiation. In all societies
man who is too afraid of punishment to of which I am aware, the legitimate child has a
commit a crime. right to be cared for and supported by his or her
legal father, and the man has a right to custody of
The radical legal change that occurred un-
his legal son or daughter. The illegitimate child
der the Chin was too much for the Chinese
typically has no right to be financially supported
people, and there was a counterrevolution that
by his or her natural father, nor to inherit any or
ended the dynasty. Later, fa and // were paired
all of his or her father's estate when he dies, un-
together in the legal system, combining moral
less the father specifically instructs that part of
education with uniform sanctions.
his estate go to the illegitimate offspring. And
Legalism is prominent in the societies of
in most societies, legitimate offspring are un-
Europe, the Middle East, China (now and dur-
avoidable heirs; that is, they may inherit from
ing the Ch'in Dynasty), as well as in the Inca
their father's estate unless the father has specifi-
and Aztec societies at the times of their cultural
cally disinherited them in a will.
climaxes. The United States and Canada are sig-
The idea of legitimacy is universal among
nificantly legalistic and growing more so. Out-
human societies. Its purpose is to provide for
side of these areas, legal dependence on rules
the material support of the society's children.
has not been especially important. Legalism de-
Normally, legitimacy is determined by marriage.
velops in times of social turmoil and heteroge-
The children born to a married couple are con-
neity, under circumstances in which there is a
sidered legitimate. Marriage is used to establish
desire to create central authority, and when le-
paternity and legitimacy. A child's maternity is,
gal practitioners have an influence in the writ-
of course, easily known, but in the days before
ing of legislation.
modern blood tests paternity was often difficult
See also CORPORATION; JUSTICE; LEGAL FICTION. or impossible to establish beyond a reasonable
doubt. Thus, marriage was used to determine
legal paternity. Even if a married woman's child
was not the natural child of her husband, the
loffe, Olympiad S., and Peter B. Maggs. (1983) law considered the child the legitimate offspring
Soviet Law in Theory and Practice. of the woman and her husband. In contempo-
Offner, Jerome A. (1983) Law and Politics in rary industrialized countries, sophisticated ge-
Aztec Texcoco. netic testing can prove that a child is not the
Pocket Criminal Code and Miscellaneous Statutes. natural child of his or her mother's husband.
(1987). Most of the world's people, however, do not have
Pospisil, Leopold. (1974 [1971]) Anthropology access to this type of testing and rely on mar-
of Law: A Comparative Theory. riage to determine legitimacy and paternity.
Every society has its own laws regarding the
Prefix to Statutes, 1960. (1960). rights and duties entailed by legitimacy. One of
the best-described systems in the non-Western
world is that of the Shona of Zimbabwe. Chil-
Legal legitimacy refers dren are legitimate if born to a married or be-
Li;r,rn.MACY to the legal rights and trothed couple. If a married or betrothed woman
IN LAW duties that exist between has a child by a man other than her husband,
a man and his legally the natural father may gain full rights in the child

154
 LEGITIMACY IN LAW

by payment of compensation to the mother's ral father's payment of compensation and who
husband, and only if the mother's husband agrees live with their natural fathers are legally legiti-
to the compensation. This, however, is the ex- mate. However, such a child faces difficulties
ception, and in most cases the natural father has after his father's death in gaining his father's
no rights in his children and all rights belong to position in the patrilineal hierarchy and in get-
the mother's husband. ting a portion of his father's cattle because of
While it is common in many societies for political pressure from his father's wives and their
some men to wish to have no legal ties to their children. This is because he was not raised by
children, because such ties entail costly respon- these women in one of their houses, but lived
sibilities for the raising of the children, the Shona with the family as something of an outsider, and
are patrilineal and so wish to have their children he cannot count on the political support of any
as part of their own lineages to build up the of the women or his half-siblings.
lineage's size and wealth. For this reason, in the Children of a woman's adulterous affair who
case of a woman who is neither married nor af- are raised by the woman's husband are legally
fianced but who bears a child, the child remains legitimate children of their mother's husband.
as a member of her own patrilineage and the Male children face the problem that although
natural father has no right to claim him or her they have all the legal rights of their mother's
as his own nor to include him or her as a mem- other male children, they are not of the same
ber of his patrilineage. In normal Shona mar- blood as their father's patrilineage, but rather of
riages, the groom must pay to his fiance's father the blood of their natural father. In this respect,
a bride-price consisting of cattle and sometimes then, they are not considered part of the
cash. This payment is intended to compensate patrilineage.They are admitted to their mother's
the family for the loss of the woman's labor and husband's position in the patrilineage, but their
for their interest in the children she will bear. If words are given no weight by the other mem-
the payment is not made or the marriage is dis- bers of the patrilineage.
solved for some other reason, the ex-husband Children who are not legitimate at all face
loses all of his rights in his children. These rights the greatest obstacles. They are socially stigma-
go to the mother's family. tized and addressed by derogatory names. Girls
Children have legal rights with respect to rarely find themselves growing up illegitimate.
their fathers on the basis of their legitimacy. When girls mature and marry, their fathers re-
Children of married parents can expect to be fed, ceive cattle in compensation, and for this rea-
clothed, sheltered, and healed at the expense of son, men are likely to wish to be their legitimate
their father. Further, the fathers are obligated to fathers. Boys, on the other hand, face a differ-
find their sons wives and to supply the cattle for ent future. They are raised by their maternal
the bride-price. Moreover, fathers are legally li- grandparents, who give them food, clothing,
able for whatever damage their children do to shelter, and the cattle they need to marry. But
others or to the property of others. When their they can never be a member of any lineage, a
fathers die, the male children can expect a share very significant handicap.
of their father's estate and a share of the cattle It sometimes happens that a son becomes
given him by the husbands of their sisters. Fi- incorrigible and costs his father a great deal of
nally, sons can rise in the patrilineal genealogi- wealth settling claims for damages he has caused.
cal hierarchy to their father's position. In some such cases, the father may publicly dis-
Male children born as a result of adulterous avow his son as his own in an attempt to escape
affairs who have been legitimated by their natu- any further liabilities for the damages his son

155
LEGITIMACY IN POLITICS

may cause. This will usually be followed by his sion of her first husband, or with the permission
forbidding the son from living with him. These of his heirs if he is dead; further, the children do
actions do not, however, mean that the father is not become the children of their stepfather un-
no longer legally responsible for his son. It only til the stepfather pays his wife's first husband
means that he is protesting the son's actions and one head of cattle for each child. The first hus-
his responsibility for paying for the son s actions. band could later cancel the agreement to turn
The father may later recoup some of his losses over his children to his ex-wife's new husband
by refusing to find his son a wife and pay the by returning the cattle. The children who are
bride-price, and by denying him a share in his themselves involved may also cancel the arrange-
estate when he dies. ment so as to once again become heirs of their
Among the Ifiigao people of the Philippines, natural father; however, they must return the
a natural father must give his illegitimate child cattle paid on their behalf to their stepfather for
a rice field if he has one that he is not using. The such an arrangement to be valid.
father's kin also support the illegitimate child in
all legal and nonlegal disputes as if he or she
were legitimate. However, the illegitimate child, Barton, Roy F. (1969 [1919]) Ifugao Law.
as is the case virtually everywhere, has no right
Holleman, J. F. (1952) Shona Customary Law.
to inherit from his natural father or his mother's
husband. Rwezaura, Barthazar Aloys. (1985) Traditional
Among the Kuria people of Tanzania, off- Family Law and Change in Tanzania: A Study
spring are an asset because sons and unmarried of the Kuria Social System.
daughters represent a source of labor and, in the
parents' old age, material security. The offspring
of married women are the legally recognized
children of her husband. For his right to the
children, a man pays a bride-price to his wife's Legitimate political rule
patrilineal family. If he does not pay the bride- Ll-GITIMACY IN may be defined as politi-
price, normally in cattle, the children that he and POLITICS cal rule that is valid in
his wife produce belong to the wife's family. The terms of adherence to
husband also has full rights in his wife's chil- the positive ideals of established political tradi-
dren even if the natural father of the children is tion. Legitimacy, then, basically refers to the ac-
a man other than himself; the only important ceptability of a leader or a type of leader to the
factor, again, is whether or not he has paid the people led. A specific type of leader may be ille-
appropriate bride-price. If a couple divorces, the gitimate in a particular society; for example, a
woman may take some or all of her children to monarch cannot be legitimate in the United
become part of the family of her second hus- States.
band, and those children become his. This fea- A leader's legitimacy typically varies in his
ture of the law is for the emotional and material or her adherence to the ideals of a political tra-
benefit of the women; they could thus avoid be- dition and by the degree to which the ideals are
ing separated from their children, and they also actually accepted by the people. Another way in
had the opportunity to bring a son with them if which legitimacy varied was described by Max
the second marriage produced no sons (as sons Weber. He noted that some leaders are legiti-
were their means of material security in old age). mate because of their personal qualities, and that
However, she may do this only with the permis- others are legitimate for reasons not directly re-

156
 LEGITIMACY IN POLITICS

lated to their personal qualities. The leaders le- lives of the poorer people of the town. He
gitimated on the basis of their personal qualities brought about a good deal of land ownership
Weber called "charismatic" and noted that they reform, generally following the guidelines of the
tended to be religious or military leaders. We- Agrarian Code, and in this manner provided land
ber called the other type of legitimacy "non- for the poor. One way he acquired land for the
individual legitimacy," and it is of two kinds. The poor was to have the poor work a plot of land
first he called "traditional legitimacy," and this belonging to a wealthy landowner for two years,
was legitimacy ascribed to a leader on the basis a time period that gives the person working it
of mores and jural norms. An English monarch ownership according to Article 165 of the Agrar-
is an example of a leader with "traditional legiti- ian Code; Pedro was able to do this by forcibly
macy." The other kind he called "rational legiti- preventing the original owners from working
macy," and this was legitimacy achieved through that land for the two-year period.
a position in a bureaucracy or other governmen- He brought electricity, water, and a high-
tal structure. In other words, a bureaucrat has way to the town. He was a skilled speaker who
political legitimacy by virtue of his or her posi- could also help settle personal disputes and call
tion alone. upon a large network of contacts, including of-
An interesting example of those qualities ficial government bureaucrats, to help people
that legitimize or act against legitimacy in a with their efforts to achieve their own goals.
leader was provided by Paul Friedrich's 1968 Pedro, further, accepted the traditional values of
study of a Tarascan Indian cacique in Mexico. a united and peaceful pueblo. He did not use his
The term cacique can refer to a number of dif- wealth and position to create a social gulf be-
ferent positions, from headman to labor boss to tween himself and the peasants of the village.
a head of state. In Friedrich's study, the cacique His clothes and house were ordinary, and he
was a political leader of a type known as an agrar- described himself as an Indian peasant. All of
ian cacique, whose name was Pedro Caso. Pedro these factors were also legitimizing.
held power through his use of violence against Another type of factor contributing to
political enemies and his efforts in promoting Pedro's legitimacy were his connections with
the agrarian land ownership reforms that were national politicians. This made him seem more
part of the outcome of the Mexican Revolution, important and thus more valuable to the local
usually by expropriating the lands of landlords peasants. Pedro represents himself to the national
and farmers. Agrarian caciques typically work leaders as an authentic voice of Indian peasants,
to prevent the abuse of people within their vil- thus making himself valuable, and legitimate, to
lages by usurious moneylenders. the national leaders.
Pedro had several legitimizing factors in his Pedro also established his legitimacy by at-
favor as a leader. Although he claimed the title tempting to create an ideological and historical
of cacique for himself, he was part of a politi- link with Emiliano Zapata, the legendary leader
cally powerful family that had provided caciques of the revolutionary forces of the Mexican
in the past. And though the people of the town Revolution.
were not always happy with the existence of ca- On the other hand, there were factors work-
ciques, since they tended to acquire power ing against the full legitimacy of Pedro as a leader.
through violence, they were usually resigned to One of these is the fact that the position of ca-
the caciques' presence. cique is not an elected one. It is a position that
Pedro was also legitimized by his abilities. is more or less created by one who seeks to be-
He brought some genuine improvements to the come a cacique. Further, Pedro could never have

157
LICENSE

won an election in the town. Ideologically, he the license; licenses may normally be revoked at
was very far to the left, much too extreme in his any time by the grantor of the license. In United
beliefs to enjoy popular support. His leftist ide- States law, a person with a license to use real
ology also made him hostile to the leadership of property does not by virtue of the license have
the church in town, and this further eroded his an interest (a right that can be alienated) in the
legitimacy. Pedro opposed the church not only property.
on socialist ideological grounds, but also as a When governments of state societies grant
means of reducing the political influence of the licenses, they usually do so for two distinct rea-
priests. Pedro and other agrarian caciques op- sonsto regulate behavior and to acquire money.
posed the use of Catholic rituals such as wed- One of the most common types of regulatory
dings, baptisms, and wakes, and publicly and licenses is a license to dispense alcoholic bever-
verbally attacked those who participated in them. ages, the object of which is to control alcohol
To some degree this strategy worked, and some consumption. Following is a set of statutory sec-
couples eloped as a result; but for many, it was a tions regulating the selling of alcoholic bever-
reason to dislike Pedro. Further, Pedro could not ages in railway stations in the Northern
gain democratic support because of his commit- Territories of Austrailia from 1939 until 1960.
ment to violence as a means of securing political Its main purpose is to restrict the sale of liquor
power. The people of the village may respect the at railway stations to train travelers only, and so
use of violence, but they do not like it. Pedro to keep the railway stations from becoming pubs
also had problems with respect to legitimate or bars for all people in the area (The Ordinances
leadership in that he was not a charismatic indi- of the Northern Territory of Australia, 1961:
vidual. People simply did not find him a like- 1031-1032).
able person. In short, although there were
delegitimizing factors in Pedro's leadership, there 97. Subject to the provisions of the Ordi-
were enough legitimizing ones that he could ef- nance, there may be granted to any lessee of
premises at any railway station in the Terri-
fect political leadership and bring about politi-
tory which have been leased by the Common-
cal change. wealth Railways Commissioner for
refreshment-rooms a licence to be called a rail-
way licence, in accordance with Form 7 of the
Friedrich, Paul. (1968) "The Legitimacy of a Second Schedule.
Cacique." In Local-Level Politics, edited by 98. A licence under the last preceding sec-
Marc Swartz, 243-269. tion shall authorize the holder thereof to sell
and dispose of liquor in any quantity, at the
Weber, Max. (1958) From Max Weber, edited and refreshment-rooms mentioned in the licence
translated by H. H. Gerth and C. Wright to bonafide travellers within the meaning of
Mills. section one hundred and fifty-nine of this Or-
dinance and to persons other than bonafide
travellers upon such days and during such
hours as are authorized by the licence, any law
regulating to the sale of such liquors to the
contrary notwithstanding.
A license is a right 99. A railway licence shall not authorize
LICENSE granted by one party to the sale of any liquor to persons other than
another to do something bonafide travellers as defined by section one
that would not be legally permissable without hundred and fifty-nine of this Ordinance ex-

158
 LITIGATION

cept at times to be specified in the licence, and (3) A boat licence issued under this sec-
each of those times shall commence not more tion shall be in respect of one boat only and
than half an hourt before the time fixed for the fee for a boat licence shall be One pound.
the arrival of any passenger train at the station Provided that no fee shall be payable for
at which the refreshment-rooms are situated a boat licence where the boat is already licensed
and shall continue for not more than half an in pursuance of section five B of the Customs
hour after its departure from that station. Ordinance 1913-1934.
100. A railway licence shall not continue (4) The fee for a boatman's licence shall
in force or be granted or issued for a longer be Two shillings and sixpence.
period than twelve calendar months from the 4. Any person who uses any boat that is
day of its issue. not licensed under this Ordinance or under
section five B of the Customs Ordinance 1913-
1934 for the conveyance of persons or luggage
As previously mentioned, the governments
to or from any overseas ship shall be guilty of
of state societies issue some licenses primarily
an offence.
to increase income. Most of the licenses of this
Penalty: Ten pounds.
type are applied to profit-making and pleasure 5. Any boatman who engages in the con-
activities, behaviors behind which there is a veyance of persons or luggage to or from any
strong motivation and for which people will pay overseas ship unless he is the holder of a
money to engage in. Following is a statute pro- boatman's licence under this Ordinance shall
viding for the licensing of boats, whether used be guilty of an offence.
for pleasure or profit, from Norfolk Island, a part Penalty: Five pounds.
of Australia some 900 miles northeast of Sydney,
in 1934 (Territory of Norfolk Island Consolidated
Laws, 1934: 156-157). The Ordinances of the Northern Territory of Aus-
tralia, in Force on 1st January 1961. (1961)
l.This Ordinance maybe cited as the Li- Vol. II.
censing of Boats Ordinance 1934. Territory of Norfolk Island, Consolidated Laws,
2. In this Ordinance, unless the contrary Being the Norfolk Island Act 1913; the Laws
intention appears
Proclaimed by Proclamation Dated 23rd De-
"boat" means any whaleboat or other ves-
cember, 1913, Which Repealed All Laws Here-
sel, whether propelled by oars, wind, steam or
other power, and includes a lighter; tofore in Force in Norfolk Island; and
"boatman" means the owner, master or Ordinances Made under the Norfolk Island Act
person in charge of any boat; 1913, and Rules, Regulations, By-Laws, Proc-
"overseas ship" means any ship employed lamations and Notifications Made or Issued
in trading or going any place in Norfolk Is- under Such Ordinances as in Force on 31st De-
land and places beyond Norfolk Island. cember, 1934. (1934).
3.(1) The Administrator may, upon ap-
plication in writing being made to him, and sub-
ject to such conditions as he determines or as
are prescribed, grant to the applicant a boat li-
cence or a boatman's licence, as the case maybe.
(2) A boat licence shall not be issued un- Litigation refers to the
der this section to a company unless the com- LITIGATION actual hearing and judg-
pany is registered in Norfolk Island according ment of a dispute by a
to law. legal authority. All legal systems, therefore, use

159
LITIGATION

litigation, although the forms it takes in various edly brought a suit that had already been turned
societies can differ quite remarkably. In some, down in any court, stood to receive a punish-
the dress of the people involved is important (as ment. Following are some of the rules in feudal
in Great Britain, where the judge and lawyers Japan on this matter (Hall, 1906: 695-697):
must wear special wigs). In the United States,
everyone in the courtroom must stand up when 4.OF SUITS WHICH ARE BROUGHT
the judge enters in order to show respect for his A SECOND TIME AFTER HAVING
or her office and authority. But in other legal BEEN REJECTED AND OF SUITS
systems, such as that of the Micmac Indians of BROUGHT BEFORE A WRONG
eastern Canada, there is not even a courtroom, TRIBUNAL.
let alone proper courtroom dress or behavior. When a suit has been instituted and,
And there, the two parties to the dispute rarely when examined in common form, has been
even meet the legal authority at the same time. found to be unsustainable, it is to be returned
to the plaintiff with an endorsement to the
There are a great many issues regarding liti-
effect of its invalidity. If it is again instituted,
gation, which is part of the law of procedure. the plaint is to be returned to the suitor with
One of the most vexing is litigation that has no an order that he is to receive a public repri-
merit, that is, frivolous litigation. Sometimes mand. If the plaint be again preferred to the
various parties initiate frivolous lawsuits against court the suitor is to be fined. (1720)
an enemy simply to cause the enemy discomfort If, after bringing a suit in the Magistrate's
or expense. Other times, in legal systems in court and after being fined for persisting in
which the process of legal decisionmaking is bringing it after its repeated rejection, a suitor
slow, such as that of the United States, a party abruptly drops his plaint into the Plaint-box
can initiate a lawsuit against another party sim- and applies to the Council of State (Goroju)
ply to get it to accede to another request it would or the Junior Senators (Waka-doshiyor'i), he
not otherwise grant. For example, a large com- must be summoned to appear before the Mag-
istrate, and his plaint shall be again consid-
pany with a great deal of money may want to
ered, and if it still be found lacking in validity,
buy a patent from a small company, which does he shall be again punished by a fine. (1720)
not wish to sell it. The large company could ini- If the parents, children, brothers or other
tiate a frivolous lawsuit against the small com- relatives of an obstinate suitor who has been
pany on some unrelated matter, hoping that the subjected to public reprimand (e.g. handcuffs,
expense, time, and effort that the lawsuit would fine, house seclusion [note: In oshikome the
cost the small company, even if the small com- culprit was confined to a room in his won
pany won the suit years later, would be more house, was barred up in it, his food passed
damaging than to sell the patent. This practice through a hole and the nanishi and his gonin-
of using a lawsuit to gain an advantage in an- gumi had to keep him under constant surveil-
other matter is known as a shakedown suit. lance.]) petition for his pardon over and over
In some societies, the initiation of a frivo- again, they are not to be subjected to public
reprimand for their persistence. (1720)
lous lawsuit may result in sanctions against the
In general, whenever a plaint is brought
one who brings the lawsuit. The same is true for before a wrong court the suitor must be di-
those who repeatedly sue an adversary hoping rected to bring it before the proper court;
that one of the suits will cause the adversary some should he nevertheless, bring it a second time
loss or misery. before the same court, there must be a confer-
In feudal times in Japan, parties that brought ence between the two Magistracies, and if they
frivolous lawsuits to the High Court, or repeat- find that the suit is one that cannot be enter-

160
 LITIGATION

Traditionally, British judges and barristers wear wigs in court. Two members of court greet each other
outside of Westminster Abbey, London, in October 1937 on the occasion of the beginning of the
September-to-December court term, called the Michalmas sitting.

tained the suitor must be informed that his magistrate, by whom it shall be enquired
petition is inadmissible; and the proper court into, and when he has reached his decision, it
whose jurisdiction he sought to avoid is to in- shall be discussed by the three magistrates and
flict on him a suitable public reprimand. (1722) the judgment pronounced by the full bench.
If a suit which had once been rejected as (Customary)
inadmissible in a Magistrate's court is again If a suit is brought by relatives or connec-
brought before the judge s colleague in the tions in the name of a party and no valid rea-
same Magistracy, the suitor, if the manager of son is given why he should not sue in person,
a temple, shall be sentenced to close confine- they must be directed to let the party sue in
ment in a single cell, or, if a rustic or a towns- person and their petition is not to be enter-
man, shall be sentenced to wear handcuffs, tained. (Customary)
[note: The length of the punishments is left to
the discretion of the tribunal.] (Customary)
If, without being brought before one of the 5 OF THOSE WHO REPEATEDLY
three Magistrates, a suit is brought direct be- PUT THEIR PLAINT INTO THE PETI-
fore the High Court (Hyojosho\ the suitor must TION-BOX IN FRONT OF THE HIGH
be instructed to bring it before the proper COURT.

161
LITIGATION

If a person puts an inadmissible petition petition for his forgiveness they shall be di-
into the Plaint-box in front of the High Court rected to caution him in the same terms as in
he shall be handcuffed and put in charge of a the former case, and when his bond not to re-
security [generally the keeper of his provincial peat the offence has been given in, he shall be
hostel in Yedo]; and if his security (the land- released. (1741)
lord of the hostel at which his provincials put Appendix: same year.A person who, for
up) petitions a second time for his forgiveness, persistently petitioning through the Plaint-
he shall be directed to caution the offender box, has been handcuffed and who after being
that if the offence be repeated he will be sub- forgiven again puts his plaint into the box is
jected to a public rebuke (togame\ and the of- to be expelled from Yedo, whether he be a resi-
fender himself must sign a bond pledging dent in the city or in the suburbs.
himself not to repeat the offence under the Any person who, for bringing an inad-
said penalty. Thereupon he may be at once missible plaint before the High Court direct
released from the handcuffs, whatever might (not through the Plaint-box), has been put
be the number of days for which he was sen- under bail or been handcuffed, and yet will
tenced to wear them. not cease from urging his suit, is to be dealt
If the improper petitioner be an ecclesi- with in the same way as above (i.e. expulsion
astic (Buddhist) he shall be given in charge to from Yedo). (Customary)
his head monastery or to the Noticiary (fure-
gashird) of his sect: if he be a free lance (liter-
ally a waveman [ronin], i.e. a samurai no longer Hall, John Carey. (1906) Japanese Feudal Law:
in the service of a feudal lord), he shall be se- The Institutes of Judicature: Being a Transla-
cured by the landowner or the householder of tion of "Go Seibei Shikimoku"; The Magisterial
the place where he is stopping; and when they Code of the Hojo Power-Holders (A.D. 1232).

162
 woman was to marry, oftentimes regardless of
her wishes. They had the authority to make a
contract to marry by accepting horses sent by

M
the groom's family.
Also among the Cheyenne, the decision as
to whom a young woman would marry was left
to her brothers, and if she had none, to her fa-
ther. If a man promised his sister to a particular
man, and his sister ran away to elope with an-
other man, then the sister was disowned by her
family and the brother was disgraced. It some-
times happened that the brother committed sui-
cide, so great was his disgrace.
Such arranged marriages were common
among the Micmac Indians of eastern Canada
until the 1970s. Parents of children of marriage-
able age would decide whom their children were
to marry. The prime consideration was that their
children marry a mate who was not lazy. Many
Marriage is the legally of the prospective brides and grooms disliked
MARRIACI; recognized union of a this system intensely, but had no choice but to
man and a woman for accept it. They had no choice because, unless
the purpose of producing legitimate children. their circumstances were very unusual, the young
Among societies, laws on marriage differ con- people depended upon their parents for food and
siderably, from what is necessary to create a genu- shelter for a few more years at least. The system
ine marriage and how a marriage is dissolved to only began to change in the 1960s, when young
the kinds of behavior in which married people adults began to go in significant numbers to the
may engage with respect to each other and state of Maine in August to harvest the blue-
each other's families. The Laws regarding mar- berry crop. From there, they found that they
riage are part of the larger field known as fam- could easily go to Boston, where they could
ily law. readily find a job and a place to live. There, they
In many societies, the couple who is to marry were beyond the control of their parents. They
must become formally betrothed before they can could use their source of livelihood in Boston to
be married. Betrothal is a formal contract to force their parents into dropping their insistence
marry in the future. In some societies, betrothal on a choice of mate.
is made by the parents of the male and female The laws regarding marriage among the pre-
who are to marry; in some cases, when the people Soviet Russians are also of interest. Marriage was
betrothed are but small children. considered a religious affair as well as a legal one;
In some societies, marriage is at least as no marriage was legally binding unless it was
much of a union between families as between a performed by church authorities. Marriage was
man and a woman. Traditionally, among the also indissoluble; divorce was impossible. In
Cheyenne Indians of the Great Plains, the fam- Russia, marriage also gave men a great deal of
ily of the bride would decide whom a young power over their wives. Men could abuse and

163
MARRIAGE

beat their wives so long as they did nothing to as his. If both men died as a result of their duel,
endanger life or limb, and if they did they were then the woman was punished with the death pen-
punished with a prison term. Otherwise, the le- alty as a murderer for having caused the deaths.
gal authorities would do nothing to help an Among the Kuria people of Tanzania, the
abused spouse. law regarding husbands and wives provides that
Among the Yoruba people of Nigeria, mar- a woman who divorces her husband to marry
riage is very much different. In that society, a again may return to her first husband if her sec-
bride-price is traditionally paid to complete a ond marriage produces no sons. This is because
marriage, and the payment assures that any chil- sons support their parents in old age, and such
dren born of the union are considered the support is crucial if the parents are to survive
husband s legitimate offspring. However, a man when they get old.
has the right to give his daughter or niece in Kuria law does prohibit adultery, but gener-
marriage to a friend or benefactor without requir- ally no legal cases concerning adultery are
ing a bride-price. The Yoruba practice polygyny. brought to the attention of legal authorities un-
Yoruba law does not recognize divorce. If a less it is a case of a woman who commits adul-
woman decides that she would prefer to be with tery in a flagrant manner. In other words,
a man other than her husband, she may sepa- husbands do not mind that their wives have af-
rate from her husband and live with the man fairs with other men so long as they do not do so
whom she prefers. The second man must pay to in a way that embarrasses the husband publicly.
the husband the bride-price that the husband Under Muslim law (Islamic law), one may
originally paid, though none of this money goes divorce one's spouse by repeating the words of
to the woman s family. The woman is still con- repudiation or divorce, known as the Talak, three
sidered married to her husband, and her chil- times.
dren are still regarded as his.
The Yoruba traditionally took the matters
of adultery and of the seduction of betrothed
women and girls very seriously. If a man seduced Ajisafe, A. K. (1946) The Laws and Customs of
a woman or girl who was betrothed to another the Yoruba People.
man, then he must pay whatever bride-price was
asked, and pay to the man originally affianced Kovalevsky, Maxime. (1966 [1891]) "The Mod-
to the female whatever expenses he had paid in ern Russian Family." \nAnthropology and Early
the courting of the female; after this was done, Law, edited by Lawrence Krader, 148-170.
the seducer and the girl or woman were mar-
ried. If a man seduced a married woman and Llewellyn, Karl N., and E. Adamson Hoebel.
then walked near the house of the husband, the (1961 [1941]) The Cheyenne Way.
husband had the right to seriously wound the
seducer with impunity. It was also legally appro- Rwezaura, Barthazar Aloys. (1985) Traditional
priate for the seducer and the husband to fight Family Law and Change in Tanzania: A Study
over the wife. If one of the combatants became of the Kuria Social System.
scared to fight, he relinquished his claim on the
woman, and the two men became lifelong Strouthes, Daniel P. (1994) Change in the Real
friends. If the two fought, and one man was Property Law of a Cape Breton Island Micmac
killed, then the survivor could claim the woman Band.

164
 MARXISM

Karl Marx had two main Marx and Engels also made the prediction that
MARXISM objectives in his writ- as society further developed, the working class
ings. The first was to (or proletariat) would become dominant, com-
help bring about a Communist revolution. He munism would destroy capitalism, and the state
made this call most clearly and expressly in 1848 would "wither away."
in The Communist Manifesto, which he cowrote Marx and Engels devoted much of their ef-
with Friedrich Engels, and called for, above all forts to understanding capitalism and evaluat-
else, the abolition of private property, the dicta- ing its moral implications. Capitalism has been
torship of the working class, and particularly the defined in several ways, but to Marx and Engels,
control of the means of production by the work- it is "living labour serving accumulated labour
ing class and the abolition of capital. as a means for maintaining and multiplying the
The second, which is of interest to us be- exchange value of the latter" (Marx and Engels,
cause of its bearing on the cross-cultural study 1968:82). In this definition, Marx refers to capi-
of society, was to provide a scientific analysis of tal as accumulated labor, though capital is usu-
human economic, political, and social evolution. ally defined as collected accumulated wealth. The
Marx developed a novel form of scientific analy- capitalist reproduces his capital by hiring work-
sis that used historical, political, economic, and ers, whom he pays with his capital, and who cre-
anthropological data, and analyzed them to dem- ate for him additional capital.
onstrate their intimate connections to each other, Marx and Engels, and later Lenin, were
particularly with respect to nineteenth-century clearly opposed in their writings to the moral
Europe. implications of capitalism. Their principal ob-
Scientific analyses provide generalizations jection to it is that it denies the wage laborer the
and predictions. Marx, along with his collabo- full measure of the value of his labor, but gives
rator, Friedrich Engels, made specific social gen- part of it instead to the owner of the capital.
eralizations and predictions. As a general Thus, the capitalist's capital grows, but the wage
principle of social evolution, Marx and Engels laborer may have no benefit from his relation-
advanced what they called "the materialist con- ship with the capitalist (the owner of the capital
ception of history," saying that the true analysis and the employer) other than to acquire enough
of social evolution should concentrate on the material goods to survive. Finally, as Marx and
production of the goods that support human life Engels discovered and described, capitalism can-
and the exchange of those goods, which they not exist without the wage laborer.
called "the basis of all social structure" (Marx Several other features of classical capitalism
and Engels, 1968: 417). With regard to the ac- (capitalism as it was practiced in nineteenth-
tual progression of social evolution, they said that century Europe, before the advent of significant
after a long period of social and technological social welfare legislation) drew fire from Marx
development, mankind reached a stage in which and Engels. First, they attacked the great dis-
civilization was formed, at which time socioeco- parities in wealth between the wealthy classes
nomic classes and the state came into being. At and the working class. Second, they decried the
first, the state is feudal, and the aristocracy, or wretched living conditions that faced many of
upper classes, is dominant. Later, as technology those belonging to the working class; this was a
advances with the invention of productive ma- special interest of Engels, who described it in
chinery, capitalism develops, and the capitalist some detail. Third, they described the competi-
middle class (or bourgeoisie) becomes dominant. tion among workers for employment; when there

165
KarlMarx (1818-1883)
 MARXISM

are more workers than available jobs, as is usu- torical data, intending to prove that other forms
ally the case in capitalist societies, employers can of social-economic systems had, in fact, existed
keep wages low and still be able to acquire work- in Europe, and that therefore still other forms
ers, since workers will work at low wages to avoid (particularly communism) could exist in the fu-
starvation. Fourth, Marx and Engels criticized the ture. Marx was interested in the data collected
automation of industry, which serves to reduce by the national governments of Europe at the
the skills required of workers and to reduce the time, especially British data. He assembled data
number of workers needed, both of which they on production, technology, wages, and wealth
claimed lead to reduced wages. accumulation in his book Das Kapital. He also
Marx and Engels were primarily interested undertook studies of medieval history and wrote
in technological and economic data in their about feudal society.
analyses. Marx called his style of analysis "ma- Marx and Engels also made use of philoso-
terialist." He paid especial attention to which phy to support their arguments in favor of his-
people or groups of people in a society had con- torical materialism/political economy as a means
trol of the majority of the society's material of analysis, as well as to support their arguments
wealth and, even more importantly, who had that social-economic systems change, as do all
control of the ability to produce that material natural phenomena. They used a special form of
wealth, which he called "the means of produc- philosophical inquiry known as dialectics, which
tion." Marx's theory of materialism argued that originated with Plato and the Platonists. Dia-
relations between different components of soci- lectics is concerned primarily with distinguish-
ety are material in nature and not primarily reli- ing truth from error. In the nineteenth century,
gious, kinship-related, geographic, political, or a major thinker in the field of dialectics was the
legal. For example, in The Communist Manifesto, German philosopher Georg Wilhelm Friedrich
Marx and Engels went so far as to say "The bour- Hegel. For Hegel, truth was to be found in the
geois [man] sees in his wife a mere instrument mind and in ideas, not in the objective world.
of production." The dialectics of Marx and Engels was a reac-
In making their argument in favor of a Com- tion against Hegelian dialectics, and they named
munist revolution, Marx and Engels faced many their theory dialectical materialism. Dialectical
problems, the chief being the then commonly materialism holds that the only truth is the ma-
accepted idea that the social and economic sys- terial truth, and that matter is always changing.
tems in place in Europe had been there all along Matter, in fact, says Marx, is the source of all
and were timeless and immutable save for mi- change; change cannot occur without matter, and
nor technological advances. How, the problem matter cannot exist without change. Change
seemed to be, could Marx and Engels convince occurs through a struggle of opposites. Marx
people that a new social-economic system called these opposites contradictions. Any par-
communismcould come about if they believed ticular socioeconomic system, such as capital-
that no other social-economic system other than ism, produces its own contradictions that
capitalism had ever existed. inevitably cause it to fail and to be replaced by a
Marx and Engels began attempting, as much more advanced system. For capitalism, Marx
as possible, to be scientific in their analysis and said, one major contradiction lies in its need for
rely upon empirical evidence. They opposed their growth. As technology improves due to a desire
approach to the religious, which depends upon among capitalists for greater productivity and
faith. This made them two of the world's earli- thus greater profits, competition among produc-
est social scientists. They gathered primarily his- ers actually results in a lowering of profits and a

167
MARXISM

reduction in the number of capitalists, as the came into conflict with the feudal order of
smaller capitalists' enterprises are swallowed up production, so now large-scale industry has
by those of the larger capitalists. The contradic- already come into conflict with the bourgeois
tion that Marx saw as most damaging to capi- order of production established in its place.
talism was the ever-increasing development of
technology; here again, Marx's materialistic We see also in the quote above one of the
emphasis can be seen. As technology improves, hallmarks of Marx s and Engels's theory, that
and the smaller capitalists lose out to the greater social evolution proceeds in stages, just as does
productive power of the large capitalists, wealth biological evolution, as shown by Darwin, and
becomes concentrated in fewer and fewer hands, the history of ideas, as shown by Hegel. In all
and the working class grows larger and larger. cases, more complex and advanced stages replace
The increase in technology allows members of the simpler and less-advanced stages that pre-
the ever-larger and ever-poorer working class to ceded them. Evolution, whether biological, in-
communicate with each other, to unite and co- tellectual, or social, is thus seen by Marx and
operate in a revolt against the few remaining Engels as both revolutionary in its character and
large capitalists and thus bring about a Com- unstoppable.
munist revolution. The process that Marx be- However, the philosophical theories of Marx
lieved would bring about the end of capitalism and Engels have a logical inconsistency. Marx
was the same general process by which capital- and Engels said that everything is always in a
ism brought about the end of feudalism. Engels state of change and that there is a struggle of
(Marx and Engels 1968: 625) gave the follow- opposites. Marx and Engels apparently did not
ing example of the latter: mean that these processes continue to operate
once human society entered the stage of devel-
At a certain stage the new productive opment of communism. At that time, there
forces set in motion by the bourgeoisiein
would be no more struggle of opposites and no
the first place the division of labor and the
combination of many detail laborers
more changes. They did not say why the laws of
[Teilarbeiter] in one general manufactory nature as they described them would suddenly
and the conditions and requirements of ex- cease to operate when communism came about,
change, developed through these productive though it is obvious that they believed that com-
forces, became incompatible with the existing munism is the most perfect state for humanity.
order of production handed down by history The third major source Marx and Engels
and sanctified by law, that is to say, incompat- used to assist their arguments came from an-
ible with the privileges of the guild and the other branch of the social sciences, anthropol-
numerous other personal and local privileges ogy. Marx and Engels had wanted to be able to
(which were only so many fetters to the un- show that all societies go through a series of
privileged estates) of the feudal order of soci- stages of development, ending up with capital-
ety. The productive forces represented by the
ism and then, of course, communism. But they
bourgeoisie rebelled against the order of pro-
had no data for societies before the period at
duction represented by the feudal landlords
and the guildmasters. The result is known: the which the Greeks and Romans began writing
feudal fetters were smashed, gradually in En- down their history. They turned to the writings
gland, at one blow in France. In Germany the of a man whom many consider to be America's
process is not yet finished. But just as, at a first anthropologist, Lewis Henry Morgan. In
definite stage of its development, manufacture his bookdncient Societyy Morgan had attempted

168
 MARXISM

to trace the development of mankind's society and the State in Light of the Researches of Lewis
from its earliest beginnings to modern European H. Morgan (Marx and Engels 1968: 468-593).
civilization (note that Morgan believed in a The conclusion that one should draw from the
single line of social evolution, and that Euro- fact that European civilization was the product
pean society represented the most advanced so- of a long period of social evolution, Engels ar-
ciety). Morgan noticed from the accounts of gued, is that further social evolution will occur, and
various societies written by missionaries and ex- that it will be in the direction of communism.
plorers that people in these societies were at dif- Marx s and Engels s analyses and predictions
ferent levels of technological development and may be criticized on several grounds. With re-
had different systems of classifying kin by the gard to their analyses of non-Western peoples,
terms of address they used. Morgan believed that the two men may be criticized for using data
these levels of technology represented levels of insufficient for their purposes. At the time, little
social evolution. He argued that technology al- data was available on non-Western societies, and
ways advanced from the simple to the more com- much of what was available was simply incor-
plex, and that thus peoples with simple rect due to poor collection methods. This same
technologies were less advanced than peoples problem hampered the work of other early so-
with more complex technologies. Each society cial scientists, including Montesquieu, Morgan,
passed through a single line of stages of tech- and Durkheim. Thus, for Marx and Engels to
nology, he argued, graduating from one level to make generalizations and predictions about hu-
the next most complex; this kind of theory is mankind in general, as they purported to do, was
known as a unilineal theory of social evolution. impossible since they were essentially limited to
Morgan described three stages of savagery data from Europe. For Marx and Engels to pre-
(lower, middle, and upper), which are followed dict human social behavior on the basis of Eu-
by three stages of barbarism (lower, middle, and ropean social behavior alone is comparable to
upper), which are in turn followed by civiliza- the biologist who would try to explain the be-
tion (which begins with the invention of an al- havior of all mammals using as his source of data
phabet). For example, the middle stage of only rats; it cannot be done.
savagery begins with the invention of fishing and Another critique that may be offered is that
fire, and the upper stage of savagery begins with Marx became emotionally attached to the sub-
the invention of archery. Morgan claimed that ject matter of his analysis. Scientific analysis must
by studying other societies with less-advanced be pursued dispassionately, for if a scientist is
levels of technology, we can see in them the same not dispassionate in his or her work, the
stages of social evolution that Europeans must scientist's generalizations cannot be trusted, and
have passed through before reaching the stage the results will show what the scientist wishes
of civilization. Morgan tried to tie levels of tech- them to show rather than the truth. That Marx
nology to the evolution of social organization and Engels passionately wished for a Commu-
by using data on kinship terminological systems. nist revolution is made clear in The Communist
Engels used the data and analysis that Morgan Manifesto. It also cannot be doubted that this
supplied to trace the social evolution of all emotional attachment to their cause was one of
peoples and to show how the European civiliza- the main factors for their prediction of inevi-
tions of his time were the product of long peri- table Communist revolutions in industrialized
ods of social evolution. This he did in a work societies and the "withering away" of the state,
called The Origin of the Family, Private Property predictions that have not come true.

169
MILITARY SOCIETIES

Marx and Engels may also be criticized in it has not been able to produce philosophy as
two respects with regard to their theory of great as did the ancient Greeks or the nine-
unilineal evolution. The first is the theory itself. teenth-century Germans? Our legal system is
Societies change, it is true, but not in orderly far less logically elaborated than that of the an-
and predictable fashions, and certainly not in the cient Romans. We do not even have as effective
stages Morgan outlined. Various peoples may a nonlegal means of controlling damaging be-
have used at the same time technology specified havior as the Micmac Indians of Canada. In
as characteristic of several different stages, and other words, technological advancement is but
may have technology of a more advanced stage one way to measure social progress, and we can-
but not the technology associated with a lower not say that any one society's social progress is
stage. Take, for example, the Micmac Indians greater than another's if we only measure one
of Nova Scotia, who at contact with white people criterion, as did Marx and Engels.
had domesticated dogs (a characteristic of the
middle stage of barbarism), but knew nothing
of pottery (a characteristic of the lower stage of Kolakowski, Leszek. (1978) Main Currents of
barbarism). To which stage of social evolution Marxism: Its Rise, Growth, and Dissolution.
would we assign them? This was a serious flaw Vol. 1.
in the theories of Marx, Engels, and other
Lenin, Vladimir I. (1976 [1917]) The State and
unilineal evolutionists. The consequences of this
Revolution.
flaw may be seen in most of Soviet anthropol-
ogy, which was dedicated to categorizing groups Marx, Karl. (1906 [1883,1885,1894]) Capital:
of people by stage of development. Soviet an- A Critique of Political Economy, edited by
thropologists, who were expected to be consis- Friedrich Engels. Translated by Samuel
tent in their work with the principles Marx and Moore and Edward Aveling.
Engels laid down, spent much of their time try- Marx, Karl, and Friedrich Engels. (1968) Karl
ing to justify the classifications of peoples into Marx and Friedrich Engels: Selected Works in
stages they had made. Western anthropologists One Volume.
long ago cast aside theories of unilineal social Morgan, Lewis Henry. (1963 [1877]) Ancient
evolution and their stages of development as Society.
useless.
The second aspect of the theory that has
been proven invalid is its reliance on measures
of technology as the decisive characteristic for
judging social progress or level of advancement.
This itself is a characteristic of Western ethno- Military societies were
centrism. Because many of us in the West like MILITARY voluntary associations of
to think of ourselves as more advanced than the SOCIKTIKS men among many of the
people in the rest of the world, we judge all Indian societies of the
peoples on the basis of what we do the best, North American Great Plains. Men of all ages
namely create new technologies. For example, could join simply by volunteering to do so. The
we can say that the United States has the most military societies coordinated hunting and raid-
advanced technology. But can we say that the ing parties, made decisions on less-important
United States is the most advanced nation when day-to-day matters, and acted as the tribe's law

170
 MILITARY SOCIETIES

enforcement apparatus. They were also social duties. Take, for example, the case of Buffalo
clubs for the men. Chief, a chief of the Dog Men society. A Chey-
One of the best-described systems of mili- enne man had gone hunting bison during a time
tary societies is that of the Cheyenne Indians. in which the Cheyenne had prohibited bison
The Cheyenne had six military societies: the Fox hunting. Buffalo Chief was supervising the pun-
Soldiers, the Dog Men, the Northern Crazy ishment, which was to destroy the offender s tipi,
Dogs, the Elk Soldiers, the Bowstring Soldiers, when the offender decided to fight back by hit-
and the Shield Soldiers. Some of these societies ting one of the people destroying his tipi. Buf-
were known among the Cheyenne by other falo Chief saw this and wrongly shot and killed
names as well. the offender. When the offender s wife then ran
With the exception of the Dog Soldiers, the to him with a knife, he wrongly shot and killed
members of each military society were spread her too. Buffalo Chief not only lost his office
among numerous winter bands (the Cheyenne for the murders, but was exiled from the Chey-
congregated as a single group in the warm enne tribe. Another military society chief, Last
months and spread out into forty-four bands Bull, was removed from office for dealing too
during the winter months to hunt the smaller harshly with offenders while carrying out his
bison herds). The Dog Soldiers, members police duties.
formed a band of their own and lived in that Military society members could become civil
band only. They were led by military chiefs rather chiefs as well, though they had to relinquish their
than by a civil chief, as in other bands. In addi- military society memberships to do so. This kept
tion, some military societies were limited to the military societies from gaining undue influ-
bands of a particular geographic range. For ex- ence over the most important decisions affect-
ample, the Northern Crazy Dogs only lived ing the tribe as a whole, since it was the duty of
among northern Cheyenne bands, whereas the the civil chiefs to make decisions that would affect
Bowstring Soldiers only had members among the strategic future of the entire Cheyenne people.
southern Cheyenne bands. One of the principal duties of the military
Each military society had two "headmen" societies was to make and enforce the law with
and two "servants" or doormen. These four men regard to certain types of behaviors. They made
were also war chiefs of the Cheyenne tribe. The sure that no one spoiled the large tribal bison
headmen were the ones who made the decisions hunts by scaring away the bison by hunting them
for the military society unless they were dead- before the rest of the tribe was ready. They would
locked on a particular matter, and then the two whip or destroy the tipi of one who hunted with-
servants would make the decision. out permission. They also policed warfare activi-
Military society chiefs held office for life, ties. In one case, men who failed to kill an enemy
although the chances of being killed in battle warrior were whipped severely. They also pun-
were rather high. In such a circumstance, the ished a young woman who had aborted her fetus
office was filled by a member of the society who by banishing her until the tribe s sacred arrows had
had been elected by all members of the society. been renewed; in Cheyenne society, all Chey-
Further, if a war chief decided that he had be- enne have the right to life, even the unborn.
come too old for the job, he could bestow his
office on a younger man of his own choosing.
Finally, a military society chief could be removed Llewellyn, Karl N., and E. Adamson Hoebel.
from office if he broke the laws pertaining to his (1961 [1941]) The Cheyenne Way.

171
MlSPRISION

Misprision is the illegal Section 344

MISPRISION act of failing to report to
the proper authorities A person who obtains credible information of
knowledge that one has concerning the commis- preparations made by a person to desert to a
sion of a crime. In the United States, as well as foreign country, or of such offence committed
in many other societies, misprision is not recog- but not yet discovered, and fails to report it to
the authorities as soon as he can do so, com-
nized as a legal offense. This is changing, how-
mits a felony and shall be punished with dep-
ever, in some parts of the United States, where
rivation of liberty up to three years. The kin
doctors and teachers who see evidence of child of the perpetrator is not punishable for
abuse may face criminal liability if they fail to misprision.
report it to the proper authorities.
The use of misprision is common in Com-
munist countries, where it is one tool among
Ministry of Justice of the Hungarian Peoples
many that governments use to control the be-
Republic. (1978) The Statutes of the Hungar-
havior of people. The negative side to mispri-
ian Peoples Republic, ActIVof 1978 on Crimi-
sion as a legal offense is that it degrades morally
nal Code.
acceptable behavior by forcing friends and fam-
ily members to report each other for the com-
mission of crimes.
Following are two statutes from the formerly
Communist Hungarian government regarding
misprision with respect to civil and military de- Monarchy is a form of
sertion (Ministry of Justice of the Hungarian MONARCHY government in which
Peoples Republic, 1978: 133,189): only one person rules;
the term is derived from the Greek words monos
(alone) and archein (to be first, to rule). The ex-
Section 219
istence of a monarchy does not mean that only
(1) A person who obtains credible information: one person has power (such a government would
(a) of preparation for the perpetration of be an autocracy), but rather that one person os-
an offence defined in Section 217, pars. tensibly makes the decisions. For example, the
(2) through (4) [dealing with leaving British government is a monarchy, although the
the country without permission], or
ruler, the king or queen, has little genuine power.
the offence defined in Section 218,
On the other hand, those who do have the true
(b) of a soldier making preparations for de-
serting abroad [Section 343, par. (3)], power of the government, the legislators who
(c) of an offence as defined in the clauses sit in Parliament, do everything in the name of
above, committed yet still undetected, the monarch. Likewise, the court system oper-
and fails to report this to the authori- ates in the name of the king or queen; the judges
ties as soon as possible, commits a speak on behalf of the king or queen and the
misdemeanour and shall be punished criminal prosecutors (known as crown prosecu-
with deprivation of liberty up to one tors) act as legal representatives of the king or
year, or with reformatory and educa- queen, who is the one ostensibly offended by
tive labour, or with a fine. criminal acts rather than the society as a whole.
(2) The kin of the perpetrator is not punish- The term monarch is most often associated
able for misprision. with a monarch of a particular type, a king or

172
 MULTIPLICITY OF LEGAL LEVELS

queen, who is royalty. Thus, the term monarch is

often used synonymously with a royal ruler, a
king or a queen. However, the term can also be
applied accurately to autocratic leaders such as
Adolf Hitler, Joseph Stalin, Mao Zedong, and
Fidel Castro. All autocrats are monarchs, but not
all monarchs are autocrats.

The theory of a multi-

MULTIPLICITY or plicity of legal levels, also
LF.C.AL LLVLLS known as the theory of
legal pluralism, was de-
veloped by anthropologist Leopold Pospisil. The
theory, briefly stated, is that society is composed
of various functioning groups and subgroups at
various "levels" of society, from small, less in-
clusive groups (such as families and schools) at
the bottom levels to large and more inclusive
groups (such as the state of Nebraska or the
United States of America) at the top levels. Each
of these groups has its own legal system, usually Halle Selassie, emperor of Ethiopia, ruled as a
subordinate to the legal systems of the group or monarchfrom 1930 to 1974.
groups at the next higher level, until one reaches
the top level of the nation and its supreme legal Groups typically have functions. That is,
system. they are composed of people brought together
The theory depends upon the idea that a to get something done. The function of the
society has a societal structure, meaning that it third-shift group of workers at an auto parts
is composed of groups and subgroups that have plant might be to make spark plugs or fuel
a system of mutual interrelationships. In other pumps. The function of a classroom at a high
words, these groups are ultimately connected to school in Kentucky is to teach young adults
one another, each through its connections to yet knowledge. The function of a nuclear family is
other groups and its partially shared member- to socialize and to provide for the physical needs
ships with other groups. For example, if one is a of children and prepare them for membership
student at a state university in New York State, in the larger society.
he or she is a member of the group of people All groups that have functions also have
who are members of the State University of New leaders and authorities. This must be so because
York. The State University of New York group otherwise nothing would ever get done by the
is tied to the New York State government, an- groups, and they would cease to be functioning
other group, which is tied to the United States groups. For example, take the example of the group
government, which is in turn tied to many of the that operates a factory. Decisions, requiring an
other groups in the United States, and so on. authority, must be made about the product the

173
MULTIPLICITY OF LEGAL LEVELS

factory produces, about who the workers are and levels of inclusiveness are thus also legal levels,
who selects them, about when and how much for the legal decisions made at one level affect
workers are to be paid, about procuring the ma- all of the levels below it.
terials the factory uses, and many other things. In contemporary U.S. society, there are nu-
Also, there must be an authority who settles dis- merous legal levels. There are also numerous low
agreements among the members of the group. legal level groups to which an American citizen
If two workers disagree about how something is may belong, including family, church, school,
to be made, a decision has to be made as to which employment group, social club, etc. Between the
method will be used. Behind these decisions are family legal level and the top legal level of the
principles, the laws that guide behavior in the federal government, there are at least two legal
factory. In the nuclear family, as well, decisions levels, the municipal level and the state legal
have to be made, and someone or some subgroup level. In some places, there is the community
(usually the parents) have to lead the implemen- legal level, which may regulate such things as
tation of the decisions made. The "rules" laid building codes and the admission of children.
down by parents for their children are some of In some places also, the county or parish, an in-
the laws of that family. termediate level between municipal and state
An important feature of groups themselves levels, is of some importance.
is that they have absolute membership. Either In technologically primitive societies, the
one is a member of a group or one is not. This number of groups to which one belongs is usu-
feature can be seen in combination with that of ally much fewer, although the number of legal
leadership and authority. The leaders of a group levels may not differ greatly. The woodlands Cree
and the authorities of a group have the right to of northeastern Canada, for example, tradition-
lead and to make decisions only with respect to ally had the following groups of which an indi-
members of that group. A father and mother vidual was a member: the nuclear family, the
can make decisions concerning their own chil- extended family, the winter band, and the sum-
dren, but not the children of the family down mer band. Each one of these represents a sepa-
the street. A plant manager s decisions affect the rate legal level.
people who work in his or her factory, not an- However, some legal systems can exist in a
other factory across town. society in conflict with the legal system that is
Finally, we can see all of these patterns in authorized by the society's central government.
terms of a larger pattern of legal levels. At the For example, the legal system that the mafia uses
lower legal levels, we have the family, the fac- to control the behavior of its members is often
tory, the school, etc. All of these groups have in conflict with the laws of the United States.
their own legal systems and their own laws. But Under mafia law, for instance, it is legal for one
these groups are also parts of larger groups. All "made" (or full) member to kill another "made"
of them may be part of the group known as the member under orders from the appropriate mafia
membership of the city of Chicago, for example. authorities; such a killing is of course illegal un-
The members of the city of Chicago in turn are der U.S. law. Thus, one way in which an unoffi-
members of a larger group, the state of Illinois. cial legal system can exist within a society is for
Finally, the members of the state of Illinois are that organization to create its own laws.
members of the larger group known as the Another way for unofficial law to come
United States of America. Each of these more about is for a local legal system to continue to
or less inclusive groups have their own legal sys- exist even after a national legal system is extended
tems and laws that apply to all members. These to cover the small society that gave birth to the

174
 MULTIPLICITY OF LEGAL LEVELS

local system. A good example of this is the legal there, the panchayat, composed of Harijans, will
systems of some North American Indian often refuse to become involved in a dispute be-
peoples, which continue to exist and function tween a Harijan and an upper-caste person, es-
despite the imposition of the U.S. and Cana- pecially if the upper-caste person aggressively
dian federal legal systems. In such cases, the in- asserts his position using violence, as was com-
digenous legal systems fulfill social and cultural mon in earlier times. Simply put, the Harijan
needs that the large national systems were not panchayat in such a situation would fear for its
designed to fulfill. members' own safety if it intervened. In some
Another example of a traditional legal sys- other cases, though, the panchayat will pursue
tem continuing to function despite the imposi- political means and either make a display offeree
tion of a new national legal system can be found itself on behalf of a wronged Harijan or suppli-
in India. There, the traditional villagepanchayats cate itself before upper-caste antagonists and
(not to be confused with the Nyaya Panchayats plead for mercy on behalf of a Harijan man
[or "justice panchayats"] developed by the fed- whom the upper-caste men have been beating.
eral government in recent times) still work to Overall, however, the Harijan panchayat is
resolve disputes among members of the village largely ineffective in dealing with aggressive
in some rural areas. Though they do not enjoy upper-caste people, and for this reason some
the recognition of the federal government, they Harijan villages have forbidden members of
are known to and are tolerated by federal offi- other castes from settling in their midst.
cials, including court officials. The punch ay at The panchayat is composed of older, mar-
continues because in many parts of India, use of ried men, and employs primarily psychological
the official courts has not yet become common. rather than physical sanctions; most often, the
It also continues primarily in single-caste vil- offender is expected to confess his wrongs and
lages. In earlier times, \hzpanchayats of mixed- then is lectured and cautioned to mend his ways.
caste villages were controlled by the higher Thus, the function of the panchayat is primarily
castes, who used their social position to intimi- restitutive rather than punitive. That is, its in-
date the lower castes, especially the Harijans (also tent is to restore social relations as they existed
known as the low-caste people, the people with- prior to the commission of the offense rather
out caste, or the untouchables). When India than to punish the offender; this is especially
gained its independence, the government called important in small villages, in which all mem-
for social equality and the end of the caste sys- bers know and interact with each other on a daily
tem; it also set aside jobs for Harijans. As a re- basis. This is another reason why the panchayat
sult, the relationships between members of has been replaced by Indian courts in urban cen-
different castes became contentious, and those ters. In the cities, there is less need for restitu-
in the lower castes became much less likely to tion, because the people involved will frequently
submit to the insults and degradations of the have little need to work together cooperatively
upper castes; thus, where upper castes controlled in the future; thus, in the Indian court system,
the panchayat, people frequently turned to the punishment of the offender is more likely and
Indian court system rather than the panchayat. more severe. Though the panchayat is still alive
However, in many rural single-caste villages (as today, its numbers and relative influence are on
well as in some rural mixed-caste villages), the the wane.
panchayat continues. A second important source of unofficial law
Where the village is predominantly Harijan, within a larger society is discontent among vari-
and people of upper castes later come to live ous subgroups of the larger society with regard

175
MULTIPLICITY OF LEGAL LEVELS

to the way in which the legal system of the larger Sungusungu. The Sukuma and Nyamwezi people
society handles disputes. If the larger society prefer the Sungusungu to the Tanzanian courts
cannot control disputes effectively, small sub- for disputes over adulterous wives because the
groups within the larger society will often at- Tanzanian courts were said to be unjustly un-
tempt to control these disputes themselves. Such predictable in their decisions. The Sungusungu
was the case in rural west-central Tanzania in also returns girls who elope to their parents.
the 1980s. Tanzania as a whole saw a great in- The Sungusungu further tries cases of ordi-
crease in criminal activity during the 1970s, and nary disputes between members of the village.
the Tanzanian government proved unable to After a complaint has been made to one of the
control it. The Nyamwezi and Sukuma peoples officers of the Sungusungu, the alleged offender
of west-central Tanzania responded by invent- is summoned before the Sungusungu commit-
ing their own legal system to control crime, a tee. After making formulaic greetings, the al-
legal system whose laws were based upon their leged offender is persuaded to confess his or her
own traditional values and social organization. wrongs. Then, the accused offers to pay a fine.
This system, which they brought to life in the His or her first offer is always too small for the
1980s, is operated by groups of people known as gravity of the offense, but he or she gradually
Sungusungu; each Sungusungu group normally increases the offer until one at last meets with
includes all of the people of the village that the the standard used by the Sungusungu commit-
group administers. The group is led by a chief tee, which then applauds to show its approval of
(ntemi), a chief's assistant (ntwale), a secretary the appropriate offer. This method has the ad-
(katibu), and a chief commander (kamanda vantage that the guilty cannot readily complain
mkuu). A major role of the Sungusungu groups to the federal authorities, since he or she has
is to retrieve stolen cattle and to punish the participated in the determination of his or her
thieves. The activities of a village's Sungusungu own guilt and its punishment.
are essentially secret, both to avoid attacks by The individual who refuses to admit guilt,
the thieves, who are willing to die in the com- or who admits guilt but does not pay a fine, is
mission of thefts, and to avoid the notice of the usually ostracized. A further inducement to ad-
Tanzanian authorities who would punish them mit guilt and to pay fines is the ostracism of the
for the killing of the thieves. The Sungusungu guilty party's entire household as well. Ostra-
also provides food of those who chase the cism in these societies means that the members
thieves, since the pursuit is likely to be long and of the household may expect no assistance from
arduous. the other members of the village. The entire
Two other sources of trouble that the membership of the village works together to
Sungusungu deals with are adultery by wives and ensure that the ostracism is complete; those who
witchcraft. In the case of witchcraft, the witch do not ostracize the guilty may themselves re-
is discovered and fined. In the case of adultery ceive punishment. Members of the village also
by wives, the main concern of the Sungusungu is assist the Sungusungu by reporting serious dis-
to prevent the men involved from fighting. The putes to the officers of the Sungusungu; failure
Sungusungu deals with this by tracking down the to do so is noted and is taken into account when
deserting wife and returning her to her husband, the person involved is brought before the
as well as fining the man for whom she left her Sungusungu on a charge of improper behavior.
husband. In the case of adultery, the bulk of the People who do not take part in any Sungusungu-
fines go to the husband; in all other types of ordered activities, such as searching for a lost
cases, all of the fines imposed go to the child, are fined.

176
 MULTIPLICITY OF LEGAL LEVELS

See also LEGAL ANTHROPOLOGY; MISPRISION. Pospisil, Leopold. (1974 [1971]) Anthropology
of Law: A Comparative Theory.

Bukurura, Sufian Hemed. (1994) "The Main- Vincentnathan, S. George. (1992) "The Social
tenance of Order in Rural Tanzania: The Construction of Order and Disorder in Two
Case of the Sungusungu." Journal of Legal South Indian Communities." Journal of Le-
Pluralism and Unofficial Law 34:129. gal Pluralism and Unofficial Law 32:65102.

177
 N
Natural Law may be de-
NATURAL LAW fined as law that agrees
with human nature and
that therefore is essential for social peace and Charles-Louis de Secondat, Baron de La Brede et de
happiness; a knowledge of Natural Law is de- Montesquieu (1689-1755)
rived by pure reason. Natural Law is thought of
as a group of principles belonging to the world own ideas about morality and moral philosophy,
of natural objects that, if fully implemented by it should come as no surprise that there can be
man, would cause the world to exist in a state of no one Natural Law. Each culture has different
universal harmony. Theorists of Natural Law ideas about what is moral behavior and what is
believe that human nature is the same every- not. Therefore, the idea that there is one set of
where, and that Natural Law is the same for ev- morally correct laws (Natural Law) for all of
eryone. They also believe that Natural Law is a humankind is absurd. In terms of morality, hu-
priori, independent of culture, time, and space, man nature is not everywhere the same, an idea
natural to mankind and common to all men. first broached by the French social thinker
Natural Law may be thought of as a moral phi- Montesquieu, who lived from 1689 to 1755.
losophy; actual laws, of course, can never com- A good example of this is can be had by com-
pletely conform to Natural Law, though Natural paring the treatment of patricide in our society
Law is often used in the formulation of actual and in pre-Communist China. By the moral
laws and rules. Natural Law is an invention of standards of our society, the killing of a man by
the philosophical traditions of European culture, his son is considered as reprehensible as the kill-
and its basic tenets had their origin in ancient ing of a man by his father. In some cases, the
Greece. killing of a man by his son is considered less rep-
Since Natural Law is a matter of morality rehensible than the reverse; for example, in cases
and philosophy, and since each culture has its in which the father has been abusing his son,

179
NATURAL LAW

courts have often been lenient. In pre-Commu- Grotius, Hugo. (1925 [1625]) De Jure Belli ac
nist China, on the other hand, the killing of a Pads Libri Tres. Translated by Francis W.
man by his son was considered one of the most Kelsey.
reprehensible of acts, no matter what the cir-
Montesquieu, C. L. J. de Secondat, Baron de la
cumstances. Even if the father abused his son,
Brede et de. (1750) De Vesprit des lois. Vols.
patricide was harshly punished and there were
I, II.
no grounds for leniency. On the other hand,
there were many justifiable reasons for a man to Pospisil, Leopold. (1974 [1971]) Anthropology
kill his son with impunity. The Chinese, of of Law: A Comparative Theory.
course, considered their laws in this regard per- Pufendorf, Samuel von. (1927 [1682]) De Officio
fectly "natural," and the fact that people in Hominus et Civisjuxta Legem Naturalem Libri
United States society do not is the reason that Duo. Translated by Frank Gardner Moore.
there is no such thing as a truly natural law.
Seidler, Michael. (1990) Samuel Pufendorf s On
See also JUSTICE; LEGAL ANTHROPOLOGY the Natural State of Men. Translated and an-
notated by Michael Seidler.
Gierke, Otto von. (1957 [1934]) Natural Law Whewell, William. (1853) Grotius on War and
and the Theory of Society: 1500 to 1800. Peace. Vol. I.

180
 ordeals and oaths are used to settle disputes.
Unlike ordeals, which are not distributed
around the world, oaths are used by cultures in

O
all regions.
Oaths are most commonly used to settle dis-
putes in which members of the community can-
not easily decide which party is telling the truth.
For example, among the Wolof andTiv of West
Africa, a persons willingness to take an oath is
interpreted as a sign that he is telling the truth
while resistance is a sign that he is not telling
the truth. The dispute is then likely to be re-
solved in favor of the oath-taker. The Crow In-
dians of the Great Plains of the United States
used oaths when there were disputes over count-
ing coup. In that society, male warriors placed
great positive value on counting coup, or touch-
ing the body of an enemy. The one who touched
the enemy first enjoyed much greater prestige
An oath is a solemn at- than anyone who counted coup on that body
OATH testation to the truth of afterwards. Thus, it sometimes happened that
statements uttered. It is more than one person claimed to be the first man
often used in legal proceedings to help the legal to count coup on any particular enemy. In this
authority discover the true facts of a case. It is event, the two warriors would each put a knife
common for oath-takers to call for supernatural in his mouth, point the knife in the direction of
sanctions to befall them if they tell falsehoods. the sun, and say a formula that asked the sun to
In cultures where people believe strongly in the witness the oath and called for the death of the
power of the supernatural to influence the lives warrior who lied. The first of the two men to
of the living, oaths can be an important way of suffer a significant injury was believed by the
encouraging compliance and settling disputes. rest of the group to be the imposter, and the ac-
Oaths are used for a variety of purposes and in a colades would go to the other man. In the soci-
variety of contexts. In the United States, they ety of the Ostyak, in Siberia, the oath-taker
are used to encourage witnesses to tell the truth swears the truth of his statements by saying, over
in judicial proceedings, to encourage compliance a bear's nose, "may a bear eat me if I tell a lie." If
and allegiance among members of restricted the oath-taker is later killed by a bear or in an
membership organizations such as fraternal or- accident, this is believed to be proof that he had
ganizations and the military, and to hold public not told the truth.
officials to high standards of conduct. Elsewhere, Oaths are effective only when people are
oaths are often used in non-Western cultures to generally truthful and when they believe that the
settle disputes and to maintain social order. supernatural will harm them if they lie under
A cross-cultural survey of oaths used to as- oath. It is, of course, the belief that they will be
certain the truth in 150 cultures shows that oaths punished for lying that causes them to be truth-
are used in 37 percent of cultures. In 19 percent ful. Thus, it is not surprising that societies that
oaths alone are used, while in 18 percent both rely on oaths are ones in which children are

181
OATH

Lt. Col. Oliver North, United States Marine Corps, raises his right hand and swears an oath to tell the truth
before the House and Senate Iran-Contra Committee of the U.S. Congress. Such oaths to elicit the truth are
used in 3 7percent of 150 cultures surveyed.

reared to be responsible, an emphasis that likely Oaths are also used commonly across cul-
produces adults who are truthful. Additionally, tures by the state as a means of ensuring loyalty
people in societies with oaths generally believe among citizens. For example, in most nations
strongly in a high God and they share the belief today, naturalized citizens are required to take
that those who lie while under oath will be pun- an oath of allegiance to their new nation. Simi-
ished. For example, the Crow Indians believed larly, oaths are commonly required for individu-
that those who lied would be cursed and that als joining various government or private
they or their children would be punished. As organizations, as with the following oath re-
with ordeals, it seems that oaths occur mainly in quired of individuals who join the Sudanese State
societies where the political leadership is weak Security Bureau:
and the group is fragmented into a number of
different subgroups, usually kinship groups such I being apppointed
as lineages or clans. In these cultures, oaths al- an active member in the State Security Bu-
low the weak leadership to maintain control reau ( ) swear by Almighty God
by appealing to a higher authority in judicial (or solemnly affirm) that my sincerity and
decision making. loyalty shall be to the Democratic Republic

182
 ORDEAL

of the Sudan and to the May Socialist Revo- Roberts, John M. (1967) "Oaths, Autonomic
lution. I shall perform my duty devotedly and Ordeals, and Power." In Cross-Cultural Ap-
sincerely for the protection of the Revolution proaches, edited by Clelland S. Ford, 169-195.
and securing its achievements, exert my ut-
most effort to continuously combat reaction-
aries, imperialism and Zionism and their
intelligence agencies, whether within or out-
side the Republic, obey my superiors, main-
tain the safety of myself and not lose whatever Oligarchy refers to a
I obtain of information whatever their source OLIGARCHY government that is ruled
may be and not disclose any secret I carry or by a few people; the term
know during my work in the Bureau or after I is derived from the Greek words oligos (few) and
terminate my work save where the name is re- archein (to rule). Most modern state societies,
quired by maintenance of the safety or secu- including the United States, are in fact oligar-
rity of the State and abide by this Oath even if chies, since they are ruled by a small number of
it leads to the sacrifice of my life, my God bear people relative to the overall population.
witness of what I say.

Signature

Certificate
An ordeal is a painful or
post. ORDI:AL dangerous test, thought
certify that Sayed/ to be controlled by a su-
has taken the above Oath before me in the pernatural being, that is used to determine guilt,
presence of Sayed/ innocence, or the veracity of testimony. The
post . underlying operating principle is that the tests
are controlled by supernatural beings who will
Signature intervene to protect the innocent from failure
and harm and allow the guilty to be discovered
Signature of Witness and, often, injured. Failure to pass the test thus
proves guilt. There are a variety of types of or-
deals, including those in which the outcome is
As with oaths used to ascertain the truth, these based on chance or the knowledge or skill of the
loyalty oaths also use appeals to a higher, usu- participants and those used as part of initiation
ally supernatural, authority, as well as requiring rites or to prepare men for combat. Ordeals are
the presence of a higher human authority, in the also used to settle disputes and maintain social
Sudanese case a Muslim official. order; this is a category of ordeals called auto-
See also ORDEAL; PROCEDUREAL LAW nomic ordeals. In autonomic ordeals, the out-
come is determined by the involuntary reactions
of the participants to painful or dangerous
stimuli. The reactions are usually physiological
Laws of the Sudan. Vol. II, 1978-1979-1980- because the ordeals often involve burning, scald-
1981. ing, bleeding, or drowning.
Lowie, Robert H. (1961 [1920]) Primitive Autonomic ordeals were common in medi-
Society. eval Europe and often involved fire and heat,

183
ORDEAL

water, and direct appeals to God. For example, share the payment of damages to the injured
an individual was judged guilty if his hand was party. If only one person was injured, he had to
burned after insertion in boiling water or by car- pay all of the damages to the injured party, as well
rying a red-hot piece of iron. In water ordeals, as a fine for falsely accusing the other accuser.
the guilty were thought to float and the inno- One of the more popular ordeals was the
cent to sink. These tests were not, of course, es- hot water ordeal. A pot of water more than one
pecially reliable. Direct appeals to God were foot deep was brought to a boil, and a pebble
more contests than ordeals, with the innocent was placed in it. The party undergoing the or-
party the one who could stand longest in front deal had to reach in and retrieve the pebble and
of a cross with his hands upraised. Ordeals faded then replace it without being burned, but he had
from use in Europe when they were replaced by to do these things slowly. If the pebble was taken
more rational procedures such as due-process and replaced too quickly, it was indicative of
litigation and the use of empirical evidence. guilt; it was as if the person undergoing the or-
A cross-cultural survey of ordeals in 150 deal had been burned. The hot water ordeal
cultures in more recent times indicates that au- could not be used in adultery cases. This is be-
tonomic ordeals are used in 26 percent of cul- cause it was believed that the gods of fertility
tures. Ordeals are not distributed uniformally look kindly upon all sexual intercourse, and thus
around the world. Rather, two-thirds of socie- will not allow a party guilty of adultery to be
ties with ordeals are in sub-Saharan Africa, and burned by the hot water ordeal.
no native North or South American culture is In cases in which two people accuse each
known to have ever used ordeals. Ordeals are other of wrongdoing, the Ifugao used the hot
usually the method of final resort, called for by bolo ordeal. Each accuser placed one hand be-
those in power only when other methods of re- side the hand of the other accuser. The monkalun,
solving a dispute or discovering the facts have or referee, then took a very hot bolo (large knife
proved fruitless. much like a machete) and put it on their hands
One society that used ordeals in the past is together. The guilty one was the one whose hand
the Ifugao of the Philippines. The Ifugao used was more seriously burned. It was believed that
ordeals in criminal cases when the accused re- the gods of war and justice would cause the knife
peatedly professed innocence, in disputes over to bend away from the innocent person's hand,
ownership of property in which the facts of the but would cause it to adhere to the guilty person s
case were difficult to determine, and in disputes hand.
over boundaries between adjacent agricultural When the dispute was over rice field bound-
fields. aries, the Ifugao used the wrestling ordeal. The
Both the accuser and the accused could chal- outcome of the wrestling match between the
lenge the other to an ordeal. If the one chal- disputants was believed to be determined by the
lenged refused the ordeal, then the challenger disputants' own ancestral spirits, and the win-
was declared the victor in the dispute. If the chal- ner was declared to be the one in the right. To
lenged individual underwent the ordeal and get a fair outcome, however, the spirits had to
emerged uninjured, he was declared the victor be placated by prayers made by priests and sac-
in the dispute and had the right to collect from rifices of chickens and pigs.
his challenger a fine for false accusation. If two The Kalingas, also of Luzon in the Philip-
people accused each other of committing a pines, used ordeals as well, although procedures
wrong to another, both had to undergo the or- differed. The Kalingas did use the hot water or-
deal. If both were injured by it, then both had to deal. But they also used a supernatural test that

184
 OWNERSHIP

was not dangerous or painful, and this was the there was a strong belief in the supernatural. In
rice-chewing test. This test demanded that all this context, ordeals allowed the weak leader-
those who could possibly be involved in com- ship to maintain control by appealing to a higher
mitting an offense chew a handful of dry, un- authority in judicial decision making.
cooked rice. The person who chewed rice for a
See also OATH; PROCEDURAL LAW.
while without being able to make it wet with
saliva was judged guilty of the offense.
The Rundi of Zaire are a society that tradi- Barton, Roy F. (1969 [1919]) Ifugao Law.
tionally made heavy use of ordeals in judicial
. (1973 [1949]) The Kalingas: Their In-
proceedings. The preferred ordeal was one in
stitutions and Custom Law.
which the accused was forced to inhale a poi-
sonous powder mixed with water and tobacco. Griaule, Marcel. (1938) Dogon Games. Trans-
The mixture caused some to have seizures and lated by Michael A. Marcus.
hallucinations, proving their guilt. Those who Pages, G. (1933) AHamitic Kingdom in the Cen-
confess immediately are administered an anti- ter of Africa: In Ruanda on the Shores of Lake
dote that reverses the effects of the poison. Other Kiva (Belgian Congo). Translated by Bernard
ordeals included ingesting materials that will Scholl.
cause sickness, such as cow dung or certain Roberts, John M. (1967) "Oaths, Autonomic
plants, immersing a hand in boiling water, sit- Ordeals, and Power." In Cross-Cultural Ap-
ting a person in a basket into which others thrust proaches, edited by Clelland S. Ford, 169-195.
spears, as well as more benign methods that do Teksbury, William J. (1967) "The Ordeal as a
not subject the accused to harm. Vehicle for Divine Intervention in Medieval
The severity of an ordeal often reflected the Europe." In Law and Warfare: Studies in the
severity of the wrong being investigated. Thus, Anthropology of Conflict, edited by Paul
not all were as harsh as those that have been Bohannan, 267-270.
described. For example, the Dogon of Mali de-
termined if a boy stole sorrel by tickling along
the spine of his back with a stick of straw. If he
cannot control his laughter, he is considered
guilty. These ordeals are now a custom of the Ownership is "a bundle
past among the Rundi and Dogon and in Africa O\VM;RSIIIP of rights belonging to
in general. They were banned first by the Euro- the holder, including
pean colonial powers who instituted their own possession, alienation, testamentary disposition,
legal systems, and which have now been replaced and ususfructus (usufructuary rights), unless
by the legal systems of the African nations. yielded to a nonowner; also, when the non-
Little is known about why some cultures use owners possession of these rights is extinguished,
ordeals and others don t, although it is clear that these rights automatically revert to the owner
they fall into disuse when an effective legal sys- without any legal action" (Pospisil 1971).
tem becomes the primary means of settling dis- The English word ownership was first used,
putes in a society. In Africa and medieval Europe according to available records, in 1583, and at
it seems, though, that ordeals occured mainly in the time it meant "to hold" or "to belong to."
societies where the political leadership was weak, The owner of real property, as we use the term
the group was fragmented into a number of dif- today, refers to a person or person who holds a
ferent subgroups such as kinship groups, and freehold estate, also known as an estate in fee

185
OWNERSHIP

simple. The owner must have all of a particular Until sometime in this century, the situa-
set of rights in order to own his or her real prop- tion was not too different among the Yoruba of
erty. At the time that the word ownership came Nigeria. There, rights in land were divided be-
into being, however, the holder of all the rights tween the individual possessor and the commu-
that we now call a freehold estate was known as nity as a whole. The possessor traditionally had
a tenant of the king, the latter of whom held the the right to clear the land of jungle, to plant crops
basic rights in all British lands. Ownership rights and trees on it, and to keep the produce of the
ultimately depend upon the power of the gov- crops and trees. The other members of the com-
ernment, which guarantees them; for example, munity, however, had the right to go upon the
after a war individuals in the losing society may land and to take from it wood, stone, and water.
find that their rights to own land and busi- Wood, stone, and water were at the time not
nesses have been lost. commercially valuable, and therefore not some-
The above definition of ownership applies thing that the possessor of the land wished to
to a society in which those rights are important, control for himself. When something becomes
such as the modern nation-states. In many valuable, the law of rights in that thing arises,
smaller and less technologically advanced soci- and these rights are added to other ideas of own-
eties, not all of these rights can even be said to ership in that society.
exist, simply because they are not important.
For example, among the Micmac Indians of
Nova Scotia, Canada, until the twentieth cen-
tury or so, the right to alienate (to sell or to give Lloyd, Peter C. (1962) Yoruba Land Law.
away rights in) land or the right to be able to
leave real property to an heir in a will (the right Pospisil, Leopold. (1974 [1971]) Anthropology
of testamentary disposition) were not important of Law: A comparative Theory.
simply because there was a much greater supply
of land than was needed. The ability to do these Strouthes, Daniel P. (1994) Change in the Real
things only becomes important when land is Property Law of a Cape Breton Island Micmac
scarce. Band.

186
 to raid for slaves, were then colonized or ex-
ploited as a labor force, and eventually achieved
political independence.

P
One form of warfare to be controlled
through pacification is indigenous peoples re-
acting in a warlike fashion to the encroaching
dominant culture. For this reason, pacification
always proceeds intensive efforts to develop the
resources in the native peoples' territories. A sec-
ond type of warfare to be controlled by pacifica-
tion is warfare between indigenous peoples.
When the culture or cultures to be pacified are
known to be, or are strongly suspected of being,
warlike (which is often the situation), the wars
that are meant to be prevented are those between
the culture and other native peoples, which do
not directly threaten the colonists but are an
impediment to their controlling the region and
governing the native peoples.
The term pacification is Two major arenas for pacification have been
PACIFICATION used to describe the pro- South America (especially Brazil) and Oceania
cesses used by colonial (Polynesia, New Guinea and the associated is-
nations to render colonized indigenous peoples lands of Melanesia in the South Pacific). Com-
unlikely to attack colonists and to assure that parison of pacification efforts in these two
they are politically and legally controlled. The regions illustrates the major objectives, causes,
processes involved have differed from place to techniques, and outcomes of pacification around
place, time to time, and colonial power to colo- the world.
nial power, but in all cases pacification has in-
volved the extension of the jurisdiction of the
colonial power s legal system over the indigenous Pacification in Brazil
peoples of the colonies. Although localized efforts by traders, mission-
The term is used somewhat inconsistently aries, land agents, and government officers had
by social scientists and government officials, and occurred previously, full-scale pacification began
is most accurate only in reference to those situ- in Brazil in the early 1990s under the direction
ations where the explicit government policy is of the Indian Protection Service (SPI) for the
to "pacify" indigenous cultures rather than to express purpose of protecting Indian cultures
conquer or destroy them. Thus, the term is used from traders, land developers, and others. The
primarily in reference to one aspect of native- SPI strategy was to make contact with hostile
colonial relations in Melanesia and South tribes and convince them to end hostilities di-
America, and less used in reference to native- rected at outsiders and to trust the government
colonial relations in North America or Africa. to protect them and their interests. Beginning
In North America, the native peoples were in in the early 1900s, teams of unarmed SPI agents
some cases conquered and displaced to reserva- would approach an Indian village, leave gifts
tions. In Africa, some were encouraged initially such as beads, mirrors, and steel machetes at the

187
PACIFICATION

entrance and then wait weeks or months for the living in the vicinity of the proposed roads. The
Indians to accept the gifts. After again waiting official policy today is a combination of place-
some period of time, the agents would enter ment on reservations and integration into main-
the village with an interpreter and convince stream society
the Indians to cease hostilities and to trust the
government agents to protect their interests. The Pacification in Oceania
agents were pacifists and patient and operated A not atypical case of pacification may be seen
under the dictum: "Die if it be necessary, but in the history of theTiwi people of Melville and
never kill" (Davis 1977: 4). This approach to Bathurst Islands in northern Australia. The Tiwi
pacification is referred to as "classic pacification." are an Australian Aborigine people. For much
Such classic pacification was successful and of the recorded history of contact between the
over sixty tribes were pacified, sixty-seven In- Tiwi and non-Aborigines, the Tiwi greeted
dian posts were established in the region, and peoples from other lands with outright hostility
no Indians and only a few agents were killed. and killed many of those who came to Tiwi ter-
However, the long-term effects of this pacifica- ritory. The colonial powers' first contacts with
tion effort were devastating to the Indians. Be- the Tiwi came in the seventeenth and eighteenth
tween 1900 and 1957, more than eighty tribes centuries, when Dutch sailors visited them. Re-
were destroyed by disease, and others fled to the lations between the two peoples at the time were
interior or were placed on small, resource-poor good. Then, Portuguese people in Timor began
reservations (called "parks"). The traditional ter- raiding Melville Island for slaves, and the Tiwi
ritories of the pacified groups are now coffee or became hostile to all outsiders. This slave raid-
rubber plantations or the sites of towns, farms, ing ended approximately around 1800.
factories, or mineral extraction operations. In The next outsiders to visit the Tiwi were
addition, many of the surviving groups exist on Indonesians, who wanted to collect sea slugs
the margins of Brazilian society and have lost (trepang) in order to sell them to the Chinese.
their native languages, beliefs, and customs. The Indonesians were usually killed by the Tiwi
Beginning about 1950, pacification efforts wherever they were found.
became overtly linked to Brazilian development The British established Fort Dundas on
and economic policy, with protection of Indians Melville Island in 1824, but its inhabitants came
no longer a major consideration. Economic de- under Tiwi attack. The commander of the fort
velopment of the Amazon Basin was the driv- tried to capture a Tiwi man in order to teach the
ing force, with an emphasis on building roads, Tiwi man enough English so that he could be
mining, farming, establishment of towns and returned to the Tiwi people with the message
industries, and settlement by non-Indians. In- that the British would start shooting back if the
dian policy stressed pacification followed by re- Tiwi did not cease their attacks. The only Tiwi
location on small reservations isolated from areas man successfully captured escaped before learn-
of development. When existing reservations ing any English. The British later abandoned
were in the way of development, they were fur- the fort.
ther reduced in size or divided by roads. As with From then until 1900, theTiwi's main con-
the more humanely motivated pacification of the tact with colonists was when ships wrecked on
early 1900s, the Indian tribes were devastated. their islands, from which the Tiwi took cloth
For example, the highway program that began and iron.
in 1970 has resulted in the disappearance, relo- The colonists then tried to buy the good-
cation, fleeing, or deculturation of all 29 tribes will of the Tiwi by giving them trade goods. Iron

188
 PATRIA POTESTAS

they liked, because it could be made into axes born. The girl would be raised as a Catholic in
and knives. Matchlock and flintlock guns, on the convent until she was eighteen or so. At that
the other hand, held no special value. The Tiwi time, she was allowed to choose a young man as
watched colonists use firearms against them and her husband, and the missionary allowed the
developed a strategy to counter them. The Tiwi wedding only after the young man promised that
waited until the gun was fired, ducked to escape he would marry only one wife. Thus, the Tiwi
being hit by the bullet, and then attacked the became monogamous Christians.
gunman with a spear to kill him. The Tiwi had
no use for either rice or flour, and they killed the
water buffaloes that were given to them to pre-
Davis, Shelton H. (1977) Victims of the Miracle:
vent them from muddying up the best water
Development and the Indians of Brazil.
holes. A later group of colonists came to the is-
lands looking for mother-of-pearl shell and fire- Hart, C. W. M, and Arnold R. Pilling. (1960)
wood and were met by Tiwi canoeists. The The Tiwi of North Australia.
colonists fed the Tiwi and gave them iron and
other goods. Rodman, Margaret, and Matthew Cooper, eds.
Complete pacification and true political con- (1983) The Pacification of Melanesia.
trol of the Tiwi began when Joe Cooper, an
Australian buffalo hunter, came to the Tiwi ter-
ritory with a number of Aborigines from the
mainland as his helpers. He also brought quite
a few modern rifles, and the Tiwi could not
withstand a battle against men armed with
these. Cooper also captured two Tiwi women The Latin term patria
so that they could teach his helpers the Tiwi PATRIA POTEST/IS potestas refers to a very
language, which they did. It was Cooper, then, unusual legal institution
who established a safe place for other people of the ancient Romans. Among the ancient Ro-
of European ancestry to come. Cooper was mans, for a time at least, the father of a nuclear
soon joined by an Alsatian priest doing mission- family had unquestioned authority over the be-
ary work. Cooper tried to dissuade the mission- havior of his offspring, including the authority
ary from coming by telling him that the Tiwi to punish them or even to take their lives. The
were armed with guns. The missionary came father had jus vitae necisque, the power of life
anyway, and Cooper himself left five years and death over his offspring as well as the power
later. to inflict corporal punishment in any fashion and
The Tiwi did not accept the missionary as a to any degree, the power to alter the lives of his
man of importance because he had no wives, and offspring in any way he chose, the power to se-
all big men, as any Tiwi person knew, had many lect a wife for his son and to give his daughter in
wives. When the missionary was joined by a marriage, the power to divorce his offspring from
group of nuns, the Tiwi changed their minds their spouses, the power to give his offspring to
and accorded him the status of a big man! be adopted by other parents, and the power to
The missionary had a clever plan to convert sell his offspring. The father also had the right
the Tiwi and, especially, to end their practice of to acquire ownership of much of his sons prop-
polygyny. He would purchase, for iron, tobacco, erty; only property of the category peculium was
or other trade goods, a baby girl when she was exempt from parental rights. All property an

189
PATRON-CLIENT RELATIONSHIPS

offspring inherited from his or her mother was Organization of Law, edited by Donald Black
under the absolute control of the father until the and Maureen Mileski, 262-277.
emperor Constantine the Great limited the
father s rights so that they lasted only as long as
he lived (in other words, he could not allow other
people to use the son s property after he, the fa- Patron-client relations
ther, was dead). As the Roman Empire spread, PATRON-CI.IKNT are special political rela-
so did \hzpatriapotestas feature of Roman law, RELATIONSHIPS tionships in which a po-
although children born before their own region litically or economically
had been conquered by Rome were not affected powerful individual (the patron) provides pro-
by this legal institution. tection, material benefits, or other desirable re-
Patria potestas gave fathers not only rights sources available to someone in his or her
over their children but duties to them as well. A position to someone who is far less powerful po-
father bore full responsibility for any legal of- litically or economically (the client) in return for
fenses his offspring committed. This particular labor or political loyalty, depending on the situ-
feature of the law reduced the number of offenses ation. In other words, a patron-client relation-
by young people, since their fathers tended to ship is like other types of contract relationships,
try to control the behavior of their offspring very in which each party contracts to supply the other
rigidly so as to avoid any penalties for themselves. with what he or she wants, except in this case
This in effect reduced the number of cases com- one of the two parties has far more economic or
ing before the courts. The offspring, of course, political power than the other. As a rule, clients
feared their fathers and so were less likely to com- are dependent upon their patrons, but patrons,
mit offenses. They also feared the father s power while dependent upon their clients in general,
to give them to aggrieved parties in full restitu- are far less dependent upon any particular client
tion of any offense they had committed. and have many potential clients from whom to
A third feature of the institution ofthepatria choose. Thus, the patron usually benefits far
potestas was that the father and the offspring more from a patron-client relationship than does
could not sue each other in court. the client.
Patria potestas was dismembered piece by Most of the patron-client systems in the
piece until it ceased to exist. There have been a world today are found in the Third World. This
number of theories as to why it disappeared, but is because, in many parts of the Third World, a
probably the best has to do with simple logisti- single wealthy landowner may control much of
cal difficulties. As the Roman Empire grew, sons a region's economic power and may use it to buy
in the military were posted farther and farther political and legal power. The average commoner
away. It simply became too difficult for a father who lives in the area might have to go to the
to be transported to the site of a sons offense. wealthy landowner if he wants a job. He thus
becomes a client, and the landowner a patron.
In return for giving his client a job, the patron
may require that the client vote for the patron's
Maine, Henry Sumner. (1970 [1861]) Ancient choice of candidates in the next election, or ren-
Law. der him some other service. The patron may also
have a great deal of influence with the local bu-
Nisbet, Robert. (1973) "Kinship and Political reaucracy, and with this influence be able to as-
Power in First Century Rome." In The Social sist his client with his legal affairs.

190
 PATRON-CLIENT RELATIONSHIPS

One interesting example of Third World Though more common in the Third World,
patronage takes place in parts of Mexico. There, patron-client relations are not uncommon in
parents will attempt to acquire as their child's North America. In the United States, for ex-
godfather (in an institution known as ample, it is well known that many of the ambas-
compadrazgo or coparenthood) a wealthy man, sadors whom the president of the United States
with the intent of later using the relationship to sends to serve in foreign countries are people
ask the godfather for a loan. In return, the who have contributed heavily to the president's
godchild's parents will be expected to help the election campaign. It is also well known that
godfather by giving labor or other help when individuals and organizations who contribute to
asked to do so. the election funds of U.S. senators and congress-
An even more powerful system of patron- men expect that those senators and congress-
age is found among the Mandari people of the men will vote in favor of legislation that benefits
southern Sudan in Africa. Mandari landowners the contributors and against legislation that in-
accept poor people from their own tribe and from jures their interests.
neighboring tribes (such as the Dinka) as their Patronage is also found in American Indian
clients. The patron provides the client with food societies. It is the key element of the modern
and shelter, which the client cannot get other- political system of the Micmac Indians of Nova
wise because he or she has no living kin or be- Scotia, Canada. The Micmac began electing
cause the client's kin no longer wish to have any their governing officials according to the rules
association with him or her. Also, children are set forth in the Canadian Indian Act in the years
sometimes sold into clienthood by their parents. around 1960. Since that time, the governing of-
The Mandari patron defends his clients in court, ficials of several bands in Nova Scotia have lim-
pays their fines, and assists them in bringing le- ited their activities primarily to handing out
gal actions in court. Finally, the patron allows federal monies to other members of their bands.
his client some land for a house and garden, and The elected Micmac officials give away new
grazes his cattle with his own. In return, a male houses, supplies for house repair, jobs, and loans.
client works in his patron s fields and repairs his The primary requirement that the band mem-
buildings, and he serves as a personal servant ber must have met in order to receive these ben-
and guard to the patron. Female clients cook. efits is to have voted for the official to whom
The clients of chiefs are also supposed to spy for the request for help is made. If a band member
them. votes for the loser in an election, he or she may
What makes the Mandari patron-client re- receive no more assistance than federal laws re-
lationship unusual is the client's legal status. quire that he or she be given. As one woman
Once an individual becomes a client, he or she band member said after an election, "a lot of
remains a client until death. The children of a people are going to get nothing." In other words,
client man, no matter his wife's status, also have the patron (the elected official) helps his or her
client status. Furthermore, while a client has clients with financial benefits, but in return re-
ordinary legal rights against other people, he or quires political loyalty in the form of votes at
she does not have ordinary legal rights against elections.
his or her patron. The patron is under no legal
obligation to treat the client well and may beat
the client with virtual impunity. If the client tries Albuquerque, C., and D. Werner. (1985) "Po-
to escape, the patron is well within his legal rights litical Patronage in Santa Catarina." Current
to catch and to kill the client. Anthropology 26(1): 117-120.

191
PERSONAL PROPERTY

Amsbury, Clifton. (1979) "Patron-Client Struc- Law applied by the per-

ture in Modern World Organization." In PKRSOXAUTY sonality principle is ap-
Political Anthropology: The State of the Art, PRINCIPLKOr plied according to the
edited by S. Lee Seaton and Henri J. M. LA\V status of the party rather
Claessen, 79-107. than the place where the
Boissevain, Jeremy. (1966) "Patronage in Sicily." delict occurred, as would be the case under the
Many n.s. 1:18-33. territorial principle of law. Normally, it is the
place where an offense (or delict) occurs that
Buxton, Jean Carlile. (1967 [1957]) "'Clientship'
governs the laws under which a case is decided.
among the Mandari of the Southern Sudan."
But the personality principle of law causes the
In Comparative Political Systems, edited by
law to be applied according to status. The presi-
Ronald Cohen and John Middleton, 229-245.
dent of the United States is immune from cer-
Gellner, Ernest, and John Waterbury, eds. (1977) tain kinds of prosecution while in office so as to
Patrons and Clients in Mediterranean Societies. permit him the time to help govern the country.
Kottak, Conrad. (1983) Assault on Paradise. There are other examples as well. Diplomats
Strouthes, Daniel P. (1994) Change in the Real have what is known as diplomatic immunity
Property Law of a Cape Breton Island Micmac while in a foreign country. If, for example, a dip-
Band. lomat from a foreign country who is serving in
Washington, D.C., kills a citizen of the United
States while in Washington, D.C., he may not
be prosecuted for the homicide. Rather, the U.S.
government may declare him a persona non grata
Personal property is (unacceptable person) and expel him from the
PERSONAL property that is move- country. The reason for diplomatic immunity is
PROPKRTY able. It is contrasted so that a country cannot make false allegations
with real property, which and legal charges against the diplomats of for-
consists of land and things that are permanently eign countries as a way of trying to control po-
attached to the land, such as most types of build- litical relations with the other country.
ings. An item of personal property is also known Another example of the personality principle
as a chattel. The term personal property is often of law concerns military affairs. The military
abbreviated as "personalty." courts-martial decide cases involving military
Among the Cheyenne Indians of the Great personnel whether they occur on a military base
Plains, all property was personal and was indi- or not, and whether they involve military mat-
vidually owned. Even horses taken in a raid in- ters or not. Further, these courts try legal cases
volving a number of Cheyenne were immediately involving military personnel even when the mili-
assigned to individual owners. This was done most tary personnel are on foreign soil. If, while sta-
often on an equal basis among those who took part tioned in Germany but not on the U.S. base, a
in the actual raid and excluded members of the U.S. army private assaults a captain, the case is
raiding party who were scouts or cooks. decided by a U.S. military court rather than by a
German court.
The personality principle of law can also be
Llewellyn, Karl N., and E. Adamson Hoebel. seen at work in the legal system of the former
(1961 [1941]) The Cheyenne Way. Soviet Union. Under Soviet law, no member of

192
 POLITICAL ANTHROPOLOGY

the Communist party could be tried for a crime

without permission from the the accused's local Ajisafe, A. K. (1946) The Laws and Customs of
party organization. Of course, the other mem- the Yoruba People.
bers of the local organization were usually friends
loffe, Olympiad S., and Peter B. Maggs. (1983)
or relatives of the accused and would not want
Soviet Law in Theory and Practice.
to have one of their own tried and punished.
Further, the kind of crime in which a Commu- Means, Philip Ainsworth. (1931) Ancient Civi-
nist party member would most likely be involved lizations of the Andes.
was so-called white collar crime involving large Pospisil, Leopold. (1974 [1971]) Anthropology
amounts of money, often including large brib- of Law: A Comparative Theory.
ery payoffs. Other members of the local party
organization were also frequently involved, and
so by protecting the member who had been ap-
prehended they were protecting themselves. Plutocracy refers to sys-
The personality principle of law was of great PLUTOCRACY tems in which political
importance in Inca law. There, the crucial status power is controlled by
difference was between nobles and commoners. the wealthy; the term comes from the Greek
The Inca, in fact, had different laws for nobles words ploutos (wealth) and kratos (rule). The
than they had for commoners. One of the more United States is plutocratic to a degree, in that
important differences lay in the sanctions. Inca elected legislative and executive branch officials
commoners were usually punished with physi- are often wealthy or dependent upon wealthy
cal sanctions, and fairly harsh ones at that. donors for funds for their campaigns. In societ-
Nobles, on the other hand, faced sanctions that ies headed by big men, wealth is an absolute re-
were psychological in nature; the Inca believed quirement for political power.
such sanctions would be more effective in con- See also BIG MAN; LEADER.
trolling the behavior of the nobles than would
physical sanctions.
The Yoruba people of Nigeria traditionally
administered the death penalty differently for
kings, nobles, and chiefs than they did for com- Political anthropology is
moners. Commoners were put to death either POLITIC/XL the scientific study of
by decapitation or by beating. If decapitated, the ANTHROPOLOGY politics, which may in
head of the commoner was nailed to a tree in a turn be defined as power
prominent place to admonish others not to com- relations. Prior to the publication of Henry
mit the crimes that the deceased had commit- Maine's Ancient Law in 1861, the commonly
ted. If the condemned was put to death by held belief concerning people generally was that
beating, a male corpse was shown to the public, civilized peoples, who had advanced technolo-
but a female corpse was thrown away in the bush. gies, had governments, whereas the uncivilized,
On the other hand, kings, nobles, and chiefs were who lacked advanced technologies, lived in a
given poison and allowed to die at home. state of anarchy. Maine argued that this was
not the case, and that in fact primitive societies
See also INTERNATIONAL LAW; JURISDICTION; TER- were organized by kinship and were patri-
RITORIAL PRINCIPLE OF LAW. archal; the nuclear family was the first stage

193
POLITICAL ANTHROPOLOGY

in the evolution of social organization. Maine become. Third, it is ethnocentric to claim that
believed that societies developed along an evo- Western society represents the pinnacle of so-
lutionary line that would eventually lead them cial evolution and to suppose that all other soci-
to what he believed to be the most developed eties are going to eventually end up like Western
system of political and social organization: mod- societies. Finally, these unilineal evolutionary
ern European society. models are primarily based upon measurements
Another unilineal evolutionist was Lewis of technology, something that Western socie-
Henry Morgan. Morgan, unlike Maine, had ties can with justification claim to have devel-
actually done fieldwork in a non-Western soci- oped to a greater degree than peoples in other
ety, the Iroquois Indians in New York State. parts of the world. However, to measure an en-
Working primarily with data on kinship and tire society's development upon this one criterion
technology, he used these to construct an evolu- alone is meaningless; other criteria maybe more
tionary developmental sequence consisting of important to those who live in other societies, and
three main stages: savagery, barbarism, and civi- by these other criteria there is a good chance that
lization. The first stage of mans social organi- Western peoples may not be as advanced.
zation is that of no organization at all, what he The next major development in anthropol-
called a "promiscuous horde." Later, kinship be- ogy generally was the work of Franz Boas. Boas
came a basis for groups, which were exogamous attacked grand theorizing supported by insuffi-
and so became linked to each other through in- cient data, as was practiced by the unilineal evo-
termarriage. At this and other early stages of lutionists. From the turn of the century and into
social development, there is no political special- the 1940s, he influenced American anthropolo-
ization because the technologyhunting, fish- gists, many of whom were his students, to be-
ing, and gathering or horticulturedoes not come very mindful of the minute details of
produce enough surplus food to allow the de- the cultures and societies they visited. He felt
velopment of cities or support a specialized po- that if enough data were collected, many of
litical leadership. This can only occur when the patterns of society and culture would be-
agriculture takes place, and this requires, as a come evident without the need to impose arm-
precondition, private property, which Morgan chair theories of dubious value and accuracy.
had supposed did not exist to any large degree The Boasian approach is known as "historical
in early stages of social evolution. In 1884, particularism."
Engels used Morgan s findings to support Marx s Whereas Boas was the major influence on
theory of communism, which involves another American anthropology in the early twentieth
similar form of unilineal social evolution. century, in Europe the dominant theoretical in-
The idea of a unilineal line of social evolu- fluence was provided by Emile Durkheim, a
tion has been discarded by anthropologists and French sociologist. Durkheim championed the
others for a number of good reasons. First of all, idea that the historical development of any par-
it cannot be shown that all societies are advanc- ticular society is due to invisible internal social
ing along one line of evolution. Some societies forces. This idea was later seen in a slightly al-
have changed in ways very different from the tered form in the writings of the British anthro-
ways in which European societies have changed. pologist Edmund Leach, discussed below.
Second, there is no reason to suppose that all Durkheim's model of organic solidarity, which
societies would, if they had been left alone and saw some societies as, by analogy, similar to liv-
not been influenced by Western society, become ing organisms, appeared in a not dissimilar form
at all anything like what Western society has in the writings of A. R. Radcliffe-Brown, a Brit-

194
 POLITICAL ANTHROPOLOGY

ish anthropologist influential in the 1930s and stateless society is too simple to adequately de-
beyond. Radcliffe-Brown introduced the idea scribe the various political systems to be found
that social institutions exist because they have in Africa. It has also been said that, in their ef-
functions, and that their functions are the ways fort to explain how political institutions func-
in which they benefit the whole of society, not tion to create and maintain political balance, not
unlike how organs function in contributing to enough has been said about how political
the welfare of the entire body. Thus, Radcliffe- disequilibrium leads to political changes. This
Brown showed how various institutions, includ- second criticism is not wholly justified, since
ing the political, have functions, and how they major parts of the book are taken up with dis-
fit into an overall structure within the culture; cussions of how political systems have changed
for this reason, Radcliffe-Brown's contribution as a result of the intrusion of colonial powers.
to anthropological theory is known as structural The next significant figures in political an-
functionalism, and it is an important part of thropology were Edmund Leach and Max
British social anthropology to this day. Gluckman. Both attempted to elaborate struc-
The next major development in political tural functionalism to better describe political
anthropology was the publication in 1940 of the change. Leach's perspective is derived from the
book African Political Systems, edited by Meyer study of a region of highland Burma, an area in
Fortes and E. E. Evans-Pritchard. This book, a which there were three political systems at work
collection of papers mostly by British anthro- and in which there was no political equilibrium.
pologists, began the modern field of political Leach argued that the people have an ideal con-
anthropology. The book made two theoretical ceptual pattern of their political systems in their
contributions and provided valuable data for fu- heads and that this differs from the actual po-
ture studies. The first contribution was to make litical reality at any moment. Max Gluckman
a distinction between societies with a central- made a significant contribution in saying that
ized political authority (called primitive states) political balance in not stable or static, but is the
and those without one (called stateless socie- result of ongoing conflicts that are defused by
ties). A second major theoretical contribution crosscutting sets of social relations and specific
was to show how political institutions contrib- cultural practices. For example, kinship and loy-
ute to political equilibrium. The editors noted alties to other groups in the greater society help
that, in the case of so-called primitive states like to defuse a local feud; witchcraft also helps re-
that of the Zulu people, the genealogical restric- duce tension in a way that does not affect actual
tions of succession to kingship, the regimental group cohesion. The epigram "divide and con-
organization of the society, the power of the king quer," Gluckman says, should in fact read "di-
to appoint his kin to chiefs hips, and the super- vide and cohere." For example, if man A has a
natural basis of authority of the king are all things dispute with man B, man A may not be able to
that increase the king's authority; on the other enlist his brother, man C, to help him fight man
hand, these are balanced by a king's council B, since both B and C are members of the same
officials who have a powerful voice in the king's athletic team and therefore cannot fight each
selectionby the queen mothers' courts, and by other; this has the effect of limiting the scope of
other institutions, which all work to control royal conflict. The more crosscutting loyalties of this
authority. type, the greater the reduction in conflict over-
This first major step into modern political all, says Gluckman. Gluckman is also known for
anthropology is not without its critics, however. bringing the tetm process into the anthropologi-
The basic typology of primitive state society and cal vocabulary as a focal point for the study of

195
Franz Boas (1858-1942), American anthropologist, in 1906
 POLITICAL ANTHROPOLOGY

sociocultural change. The study of sociocultural of struggles, victimhood, and other topics that
processual change is still a lively field of study. deal not with groups but rather with individuals
During the 1940s, 1950s, and 1960s, cul- and categories of people. The latter emphasis
tural evolution again made an appearance in has been reinforced by political economy, which
American anthropology. Notable studies were deals not primarily with groups, states, and other
carried out by Leslie White, Julian Steward, genuine groups, but instead with economic
Elman Service, and Morton Fried. White and classes and other categories of people who have
Steward were interested in the causal factors that similar interests and problems, such as people
led to the large, technologically advanced soci- of a particular ethnicity or racial heritage. Po-
eties we call modern nation-states. For White, litical economy was able to do this by focusing
it is technological development that leads to the interest on the unequal distribution of wealth in
production of surplus food, which in turn al- the world, part of which has been created by
lows social differentiation into many different capitalism and the political influence of the pow-
professions, allowing further cultural elaboration erful in the world s economic systems. Of course,
and complexity. Further progress is made by in- people who have not benefited, and who indeed
creasing efficiencies in energy use. Steward was have suffered, in the modern era are often the
a cultural ecologist who stressed the "cultural poor of the Third World and the people of the
core" of a society, which largely determined its Fourth World (the indigenous peoples of the
social structure and ideology. Again, material- First World, such as the North American Indi-
ism was a central feature of his theory of ans or the Australian Aborigines). The poor of
multilinear evolution. the Third World are not a group, nor are the
Elman Service and Morton Fried also tack- peoples of the Fourth World. The North Ameri-
led the question of the evolution of political sys- can Indians are a case in point. There are a num-
tems, but from a different point of view. They ber of very wealthy Indian groups in North
did not try to show the factors that may cause America, due in many cases to oil, land claims,
political systems to change, but were merely in- or gambling revenues. However, they do not as
terested in providing a typology of political sys- a rule share their good fortune with other In-
tems. Both emphasized the varying levels of dian groups who are destitute.
political centralization and societal integration Another trend in political anthropology is
that are found at different levels in the develop- world system theory, the concept that nearly all
ment of political systems. While there is still an peoples around the world are tied together po-
interest among some anthropologists in the sub- litically by virtue of their participation in the
ject of political evolution, this interest is prima- world capitalist market. Eric Wolf (1982) is cer-
rily dedicated to the subject of state formation. tainly the best known of the theorists of this
A main thrust today of political anthropol- Marxist-oriented school of thought. A major
ogy is that of decision-making processes, a field part of world system theory is that the industri-
of inquiry that is also of interest to some legal ally developed nations victimize the less devel-
anthropologists. This particular interest appears oped ones through the use of capitalist tools; the
to have gotten its start in Max Gluckman s work wealthy peoples continue to enrich themselves
on the study of individuals in the social process. while the poor peoples, remaining poor, continue
In fact, the emphasis has moved away from the to supply the raw materials that the wealthy need
study of concrete, discrete groups and their com- to remain wealthy.
position and structure and moved toward exami- The idea that some peoples experience pov-
nation of the process of change, of conflict, and erty and suffering as a result of economic and

197
POLITICAL CORRUPTION

political control by wealthy and powerful people Political corruption is

is a common theme in contemporary political POLITICAL the practice whereby
anthropology. The so-called "resistance model" CORRUPTION an official alters the per-
is commonly referred to in studies of the rela- formance of his or her
tionship between North American Indians and duties for his or her own private gain. Examples
the dominant white society of North America of political corruption are all too familiar in the
to show that Indians resist the control of the newspapers today; for instance, a congressman
white majority rather than passively accept as- who accepts campaign contributions to pass a
similation. Scott (1985) also portrays the posi- piece of legislation that will help the contribu-
tion of the politically weak, although from a tor, or the police officer who allows illegal drug
closer point of view. He showed that poor peas- dealing or gambling to continue without inter-
ants work to resist those who dominate them ference in return for payments.
politically and economically by the use of slan- What we in the United States see as politi-
der, theft, and whatever other tools are available cal corruption is often considered commonplace
to them. or even expected behavior in other parts of the
world, however. In Southeast Asia, for example,
See also LEGAL ANTHROPOLOGY; MARXISM; PO-
it is common for government officials to ask
LITICAL ECONOMY; WORLD SYSTEM
people who need a service to pay a little extra so
that the work will be expedited; for example,
Balandier, Georges. (1970) Political Anthropol- unless such a payment is made, a required li-
ogy. Translated by A. M. Sheridan Smith. cense or permit may take months or years to be
provided. This pattern goes back hundreds of
Fried, Morton H. (1967) The Evolution of Po- years, when central governments were reluctant
litical Society. to pay the salaries of rural administrators. The
Lewellen, Ted C. (1992) Political Anthropology: rural administrators were expected to provide
An Introduction. 2d ed. their own pay and the money it took to pay for
Maine, Henry Sumner. (1963 [1861]) Ancient Law. the governmental services to be provided. Those
who could not were considered incompetent.
Morgan, Lewis Henry. (1963 [1877]) Ancient The pattern of the central government's paying
Society. very little to lower-level government employees
Scott, James C. (1985) Weapons of the Weak: Ev- continues to this day, as does the bribery that
eryday Forms of Peasant Resistance. the government employees are expected to en-
gage in to make a living wage.
Service, Elman R. (1962) Primitive Social Or-
Another factor also propels political corrup-
ganization: An Evolutionary Perspective. 2d ed.
tion in Southeast Asia. This is that the central
. (1975) Origins of the State and Civili- governments have for centuries been of little use
zation: The Process of Cultural Evolution. in protecting the rights of individuals. The in-
Steward, Julian. (1955) Theory of Culture Change: dividual must rely upon his or her family, ex-
The Methodology of Multilinear Evolution. tended family, lineage, clan, or other members
of his or her economic class, community, or pro-
Swartz, Marc, Victor W. Turner, and Arthur fession for protection and assistance. If an indi-
Tuden, eds. (1966) Political Anthropology. vidual then is lucky or skillful enough to get a
Wolf, Eric. (1982) Europe and the People with- government post, he or she is expected to assist
out History. those who have always stood ready to assist him

198
 POLITICAL CORRUPTION

or her in the past. This means that the new gov- official papers when these papers were given to
ernment appointee has to engage in graft to ful- a police officer. Of course, avoidance of convic-
fill his or her obligations to all of these people. tion and sanction for serious offenses was very
During the Vietnam War, Americans sent expensive since judges had to be bribed, and they
many different types of consumer goods to Viet- demanded much larger payments.
nam to be distributed to the rural poor. The idea One of the more common forms of political
behind this was that the rural poor would be corruption is embezzlement, which is the fraudu-
grateful for American largess and less likely to lent use of property belonging to another but
support the Vietcong. However, the local civil that is in one s own care or possession or under
servants who were in charge of distributing the one's own control. In the Ottoman Empire,
goods would take a significant portion for them- whose capital was in what is now Turkey, the
selves, and this made many of the Americans penalties for embezzlement were quite severe by
who dealt with them angry. The Americans did modern Western standards. Following are the
not understand that the local bureaucrats were statutory rules of the Ottoman Empire regard-
simply taking their portion as part payment of ing embezzlement from the state as they stood
their salaries. in the late eighteenth century (The Ottoman Pe-
In the Philippines in the past, it was known nal Code 1888: 36-40):
for firemen to ask merchants for money before
putting out fires in their stores. When the Phil- POLITICAL CORRUPTION
ippines legislature was considering the nation-
alization of the rice industry, the legislators CHAPTER IV.
delayed a vote for twenty-four hours so that they Embezzling the Revenue of the State
could accept cash contributions from rice farm- Peculation.
ers who would have lost a great deal of money if
the bill had passed. Art. 82. Whosoever shall embezzle the
revenues or property belonging to the State,
Political corruption in Southeast Asia, as in
either in cash or in kind, shall be sentenced to
so many other parts of the world, has the effect refund the public treasury twice the value of
of denying basic rights to all but the wealthy who the things embezzled and shall be punished
can afford to pay the bribes necessary to get their with incarceration for from five to fifteen years.
business done. This pattern of favoring the He shall further be declared forever incapable
wealthy has in turn had another effect. The poor of holding any rank or of occupying any pub-
are often driven to try to change the system by lic office.
violent means, as may be seen in the recent his- Art. 83. Every person entrusted with buy-
tory of the region. It has also made the poor far ing, selling or making anything of any kind
more amenable to the message of Communist on account of the Imperial Government, who
movements, and this may still be seen today. The shall commit any fraud in the buying, or sell-
corruption and the much greater advantages of ing, the price, the amount, or the manufac-
ture of such supplies shall be liable, whatever
the wealthy have been two reasons for the fre-
may be the character of the offence proved, to
quent violent overthrows of central governments
be punished as an embezzler of the public rev-
in the region. enues under the preceding article.
In the former Soviet Union, however, brib- Art. 84. Persons guilty of the frauds
ery to avoid minor sanctions was practiced by hereinbefore set forth, who do not hold any rank
all sectors of society. Drivers stopped for minor or public office, shall be liable to the same pun-
traffic offenses often left a 10-ruble note in their ishments as in the preceding articles set forth.

199
POLITICAL CORRUPTION

Art. 85. Officials who shall receive money Art. 89. Every public servant, whatsoever
from the creditors of the State for the discount- be his position, who in business, whether of
ing of Treasury bills ("serguis"), or other bonds greater or less importance, the conduct or the
forming part of the public debt, or who shall superintendence of which has been entrusted
accept from the said creditors sums of money to him, shall speculate either openly or clan-
and other gratuities in order to secure the pay- destinely, either by the intervention of others
ment of their debts, shall be sentenced to sur- or byway of partnership in the buying or sell-
render the sums or things so received, and ing of supplies for the use of the State; who
punished with incarceration for from three to shall contract for the furnishing of such sup-
fifteen years. Persons in the private employ- plies, or who shall be interested with another
ment of public officers, or standing in the re- in any contract for the furnishing of such
lation of connections or dependents, who shall things as aforesaid; shall be dismissed from his
discount the "serguis" with their consent, shall office and punished with exile for from one to
be liable to the same punishment, and so shall two years.
the officials who connive at such frauds. Where a public servant shall receive any
Art. 86. Every public servant, whatever commission on State contracts of this kind,
be his position, who shall keep back the whole or shall make a profit on the exchange value
or any part of what is due to any workmen of money, the punishment shall, besides dep-
employed by him in the manufacture or in the rivation of office, be imprisonment for from
transport of certain things relating to his of- one to two years, or exile for from two to three
fice for their wages, or for the price payable in years.
respect of such things as aforesaid, or who shall Art. 90. Persons employed in the civil ser-
make the said workmen labor upon State vice or the financial department, who shall in
works for nothing, shall be sentenced to pay any way place to their own account the rev-
twice the profit made by him, half of which enues of the State, or connive at a third party
shall be given to the party to whom it is due, doing the same, shall be dismissed from office
and the other half retained byway of fine. He and punished with imprisonment for from
shall further be punished with incarceration three months to two years, or exile for from
for from three to fifteen years. six months to three years.
Art. 91. Persons who shall receive an or-
der or undertake a contract for the supply of
necessaries for the army or navy, and who by
CHAPTER V. their own act shall fail to carry out their en-
Abuse of AuthorityFailure in Duty in a gagement, shall refund what they have received
Place of Public Trust. in payment for such supplies, and be subject
to a fine equal to one quarter of the amount of
Art. 88. Public servants and all other per- such refunding.
sons who shall be guilty of any offence in Art. 92. Any public servant who shall con-
breach of the law relating to the letting by nive at such failure to furnish such supplied as
auction and the allotment of the revenues of aforesaid shall be punished with imprisonment
the State, or in breach of any other law relat- for three years.
ing to the letting to farm of the revenues, shall
be dismissed from their offices, and punished
with imprisonment for from one to two years, Art. 94. Every person without exception,
or to exile for from two to three years. They for the purpose of forwarding justice, is justi-
shall at the same time be compelled to reim- fied in supplying to the Courts or Councils,
burse to the Treasury the sums which they have either verbally or in writing, information re-
caused to be lost to the State. lating to every pending matter, whatever may

200
 POLITICAL ECONOMY

be the nature thereof; apart from such com- Political economy is a

munications as aforesaid, which are in all cases POLITICAL type of social analysis in
only received simply as information, every or- ECONOMY which political and eco-
der, request or petition, addressed by public nomic data are analyzed
officers of any description, to a Court or Coun- together, rather than separately. Both the term
cil, either directly or indirectly, verbally or in
and the type of analysis were introduced by Karl
writing, whether in favor of or against one of
Marx and Friedrich Engels in the nineteenth
the parties, shall, according to the gravity of
the case, entail the attaching of the penalties century. Political economy is today one of the
hereinafter mentioned, both upon the officer most popular forms of political anthropology
who has rendered himself liable thereto, and in terms of research, publication, and student
also on the Court or the Council which has interest.
permitted itself to be influenced by these Political economists assume as a basic foun-
proceedings. dation of their work that the primary reason for
Art. 95. If a public officer has committed political behavior is economic self-interest. They
such act of interference by means of an order further assume that middle- and upper-socio-
or by exercising pressure in virtue of the au- economic classes in capitalist countries express
thority with which he is clothed, he shall be their political behavior largely on the basis of
deprived of his office, upon the employ such
their class; in other words, members of these
full number as aforesaid, or who shall with-
draw them entirely from their duties and em-
classes work together with other members of
ploy them in the private maintenance of his their classes to exploit the working class for their
household, or who shall enter the people em- own economic and political gain. Here, the term
ployed in his own private service in the regis- exploit, which is commonly used in the writings
ters of the members of the police force, with of political economists, is used in a new way. The
the object of paying them out of the sums set term exploit once was synonymous with utilize,
down for such police force, shall be sentenced as in "I wish to exploit the trees in my backyard
to surrender twice the amount so received by for firewood." Political economists now use the
him either for the persons who do not truly word to refer to unfair, harmful, and even evil
appear on the role, or for those whom he has use of workers by their employers or, more gen-
employed in the private maintenance of his erally, the poor by the middle and upper classes.
household, or for the persons in his own em-
As did Marx and Engels before them, political
ployment whom he has entered as members
of the police force, and shall be further pun-
economists generally assume that the members
ished with incarceration for from three to fif- of the upper and middle classes (collectively the
teen years. capitalist class, because their members use capi-
tal to buy labor and so to reproduce it) are con-
scious of their class affiliation, and that by
benefiting class interests as a whole, they ben-
Bloodworth, Dennis. (1975) An Eye for the efit themselves. Working-class people, they as-
Dragon. sert, are generally not conscious that they belong
to a class of people with common interests, and
loffe, Olympiad S., and Peter B. Maggs. (1983) so do not work together very well to advance
Soviet Law in Theory and Practice. their common interests. People who replace
strikers at factory jobs, for instance, are working
The Ottoman Penal Code, 28 Zilhijeh 1274. against the interests of other members of the
(1888) Translated by C. G. Walpole. working class.

201
Friedrich Engels (1820-1895) in 1877
 PROCEDURAL LAW

This description is of orthodox political One of the more interesting sorts of power
economy. It is "orthodox" in that it remains faith- to be found in any society is supernatural power.
ful to the style of analysis used by Marx and Many Jews, Christians, and Muslims attribute
Engels. More recently, political economists have supernatural power to their God, even though
been studying noncapitalist societies and show- these same people may disdain the concept of
ing that even here there are upper classes that magical causation as mere superstition.
exploit members of the lower classes, just as The Micmac, although Catholic, have a very
Marx found in capitalist and feudal societies. strong belief in supernatural power other than
The term political'economy is today often used that coming from God. They believe that any-
to refer to an actual economic system in which one with great ability or skill in one kind of ac-
the economy is manipulated politically by the tivity, say music, lumber] acking, or even speaking
powerful for their own economic benefit and to the Micmac language, is acknowledged as a
the economic detriment of other people. The kinapy an individual with supernatural power.
term has often been used to describe the eco-
See also AUTHORITY; LEADER; POLITICAL
nomic relationship between colonial powers (the
ANTHROPOLOGY
politically powerful who benefit economically)
and the indigenous peoples of the colonies
who suffer economically from the colonial
relationship. Lukes, Steven. (1974) Power: A Radical View.
See also WORLD SYSTEM. Strouthes, Daniel P. (1994) Change in the Real
Property Law of a Cape Breton Island Micmac
Band.

Alverson, Hoyt. (1978) Mind in the Heart of

Darkness.
Marx, Karl, and Friedrich Engels. (1968) Karl
Procedural law regulates
Marx and Friedrich Engels: Selected Works in
One Volume.
PROCEDURAL the legal process itself; it
LAW determines just how le-
gal actions are adjudi-
cated. Procedural law settles problems of juris-
diction, allocation of authority (who is the legal
authority), the sanctions that may be applied in
Power is defined as the a particular case, court proceedings (such as
POWKR ability to influence the whether the public is to be admitted to the court-
behavior of another in a room), and matters pertaining to the process of
way that is desired. We can see, therefore, that appealing verdicts. Procedural law includes the
power can come in many forms. There is mili- laws determining what is a proper legal hearing,
tary power, of course, which can be used to force the steps involved in such hearings, what con-
an entire nation to accede to another nations stitutes evidence and what evidence may be ad-
demands. There is also the power a child may mitted, the form of legal arguments in a legal
have over his or her parents when she sheds tears hearing, who may have standing in a legal case,
to induce them to behave in the way that he or who may be permitted to make arguments in a
she wants. legal hearing, if and in what form testimony is

203
PROCEDURAL LAW

made, and if and in what form interrogation to know the essential elements of a statutory
takes place. In short, procedural law regulates offence, and, knowing them, be able to sup-
all facets of the conduct of a legal hearing and ply any words omitted from the charge. This
adjudication, but not the substantive laws was an untenable argument.
themselves. (3) That, if a charge disclosed no offence,
any conviction under it was devoid of legal
One of the parts of procedural law in some
effect, and, even with an appellant's assis-
legal systems is the making of the charge, which
tance, an appeal court cannot validate such
outlines the offense on which the accused is to proceedings.
be tried. As shown in the following decision from
Rhodesia (now Zimbabwe), the particulars of M. R. Tett for the appellant.
the charge can be very important (The Rhode- / A. R. Giles for the respondent.
sian Law Reports 1966: 552-555).
MACDONALD, J. A.: The appellant was
REGINAV.HORNE convicted of contravening s. 6 (2) of the Cop-
per Control Act [Chapter 226], as amended,
Appellate Division, Salisbury and sentenced to pay a fine of 30 pounds or,
Quenet, J. P., and Macdonald, J. A. in default of payment, one months imprison-
2nd August and 2nd September, 1966 ment with hard labour.
Section 6 (2) of the Act reads:
Criminal law-Copper Control Act [Chapter "No person, including a dealer or a
226] -s. 6 (2)-contravention of-essentials ofof- licensed dealer, shall purchase any cop-
fence-not alleged in charge-fatally defective- per from any person other than a dealer
whether appellant can waive right to complain or licensed dealer unless there is produced
of irregularity to him by such last mentioned person
such documentary evidence of his title
Appellant was charged with contravening s. 6 to sell such copper as may be prescribed
(2) of the Copper Control Act [Chapter 226], or a certificate of clearance."
but the charge omitted to allege that the per- The charge against the appellant reads:
sons from whom he purchased the copper were
neither "dealers nor licensed dealers." It was "The accused, at or near Salisbury,
contended by appellant that this was not an did wrongfully and unlawfully purchase
essential element of the offence, or, if it was, from Mishek and Deni, Africans there
it could be implied from the charge. Alterna- being, 170 pounds of copper, and the said
tively, it was contended that appellant had Mishek and the said Deni not produc-
waived his right to complain of the irregular- ing at the time of purchase documentary
ity, and the proceedings were not vitiated. evidence of their title to sell such copper,
that is to say that the said Mishek and
Held, setting aside the convictions and sentence: the said Deni were not at the time of the
purchase in possession of a certificate of
(1) That the words "other than a dealer clearance, and thus the said accused did
or licensed dealer" constituted an essential el- commit the crime of contravening sec-
ement of the offence, and were not simply tion 6 (2) of the Copper Control Act
words of exception, exemption or excuse. [Chapter 226]."
(2) That to imply an essential element of In the course of the hearing of the ap-
an offence, from a charge which did not al- peal, the Crown submitted that the charge is
lege it, must mean that an accused is presumed fatally defective, because it omits to allege that

204
 PROCEDURAL LAW

Mishek and Deni were neither dealers nor li- or qualification," the Crown must be taken,
censed dealers. by necessary implication, to have alleged all
Mr. Tett desires that the appeal be con- the essential elements of the offense itself. The
sidered on its merits, and submits that the basis for this submission, although not stated,
charge is not fatally defective. In support of must necessarily be that an accused person is
this submission, he contends that the words presumed to know the essential elements of a
"other than a dealer or licensed dealer" and statutory offence, and, knowing them, be able
the words "unless there is produced to him by to supply any words omitted from the charge.
such last mentioned person such documentary Mr. Tetis approach is clearly untenable, and
evidence of his title to sell such copper as may Mr. Giles is correct when he submits that there
be prescribed or a certificate of clearance" con- is nothing in the wording of the charge which
stitute "exceptions, exemptions, provisos, ex- implies the inclusion of the words "other than
cuses or qualifications" within the meaning of a dealer or a licensed dealer."
s. 134 (2) (b) of the Criminal Procedure and Mr. Tetfs final submission is that, if the
Evidence Act {Chapter 31]. The latter words omission of these words is a fatal defect, the
unquestionably constitute an "exception, ex- proceedings are not vitiated thereby, because
emption or excuse" within the meaning of that the appellant, in the course of the hearing of
section, but the former words are of the very the appeal, has expressly waived his right to
substance of the offence and, unless it can be complain of the irregularity. In R. v. Henchel,
said that those words are to be implied in the 1920 A.D. 575, SIR JAMES ROSE INNES
charge, the Crowns contention that it is fa- said, at p. 580:
tally defective must be upheld. I am satisfied
"I do not think that any court of
that the words "other than a dealer or a licensed
appeal would be justified in allowing a
dealer" constitute an essential element of the
conviction to stand upon a charge sheet
offence, for the following reasons: The con-
which discloses no offence."
duct prohibited by the section is not the pur-
chase of copper but the purchase of copper The same view was expressed by VAN
from a person who is neither a dealer nor li- DEN HEEVER, J. A., in R. v. Preller, 1952
censed dealer. A charge which alleged no more (4) S.A. 452 (A.D.), at 473:
than that the accused had purchased copper "A conviction on a charge which dis-
would certainly be defective. The words con- closes no offence is, in itself, a failure of
stitute an additional element of the offence, justice and a legal impossibility, and
and are not simply words of exception, exemp- should not be allowed to stand."
tion or excuse.
InRogerv. R., 1962 R. &N. 385,MAISELS,
Mr. Tett submits, in the alternative, that,
J., dealing, on appeal, with a charge which dis-
although there is no express allegation that
closed no offence, said, at p. 386:
Mishek and Deni are neither dealers nor li-
censed dealers, this allegation is to be implied "But SCHRIENER, A. C. J, at p.
from the fact that the charge clearly alleges 280, points out what INNES, C. J., says,
that the purchase was unlawful by reason of in effect, in Herschel's case, is that, al-
the failure of Mishek and Deni to produce ei- though a defect of the kind now under
ther documentary evidence of their title to sell discussion could have been cured at the
or a certificate of clearance at the time of the trial, it cannot be cured on appeal."
purchase. In effect, he submits that, if the And the learned judge concluded, at p. 388:
Crown specifically alleges that an accused per- "... that, as the indictment discloses no
son has failed to comply with the requirements offence, this court is obliged to set aside the
of an "exception, exemption, proviso, excuse conviction."

205
PROCEDURAL LAW

Since the charge under consideration dis- saw witnesses called before the court to give their
closes no offence, the conviction of the appel- statements, and this was followed by their ques-
lant was devoid of legal effect, and it must tioning. If the court demanded more informa-
necessarily follow that this court, as an appeal tion, it ordered an investigation, which was
court, even with the appellant's assistance, is presented formally to the court. If the court
powerless to validate the proceedings. If, as
deemed it necessary, the veracity of the parties
Mr. Tett has endeavoured to establish in deal-
ing with the merits of the appeal, there are
to the case could be tested. If the court found
certain facts which the Crown, to its advan- either party to be lying, it punished him or her.
tage, might have established at the trial but The court then made its decision and wrote
did not, this court, indeed, would possibly as- it down in a special document. Both parties were
sist in bringing about a miscarriage of justice recalled before the court to hear the decision,
if it were to hold that the appellant at trial was and they then left to ponder it. After a period of
placed in jeopardy on a charge under s. 6 (2) time, both parties were again recalled to the court
of the Act when, in law, he was not. to give their opinions of the decision. The par-
The charge discloses no offence, and the ties then either signed a clause signifying their
conviction and sentence, for this reason, must agreement to the decision, or refused to sign it,
be set aside. signifying that they were opposed to the deci-
QUENET, J. P., concurred.
sion as an unfair one. Copies of the decision were
then exchanged by the litigants.
One of the best described examples of the The case was closed in the following man-
steps taken in a proper legal hearing, an impor- ner. The court accepted the litigants' signatures
tant part of procedural law, is that of the Ti- or refusals to sign the decision. Any payments
betan legal system as it existed before the of court costs were then made. The terms of the
Chinese invasion in 1959. decision, usually involving the payment of dam-
The progression of a civil case is as follows. ages from one party to another or the sanction-
In order to initiate a proper legal action, a Ti- ing of either or both parties by the court, were
betan litigant had to present his or her case to then carried out. Following this, the two parties
the court, and the court had to declare it a proper to the case made a formal reconciliation with
case before accepting it. The petitioner was then each other. Finally, as the case concluded, the
called before the court, and the petition pre- court had the option to send the case to a higher
sented. Next, the petitioner was questioned by authority, and either or both of the parties had
the legal authorities. Following this, the other the option to appeal the case.
party to the dispute was called before the court, The series of steps in the legal hearing in-
and he or she made a reply to the petition. The volving a crime in Tibet were usually fewer be-
petitioner then made a response to the second cause the identity of the criminal was usually
party s reply, after which he or she was ques- known and the facts of the case were more eas-
tioned again. After this took place, the second ily determined. The identity of the alleged crimi-
party had a chance to reply again to the nal was usually known because most Tibetans
petitioner's statements. It was following this that lived in small towns in which everyone knew
any evidence pertinent to the hearing was pre- everyone else, including those who frequently
sented. At this point, each party to the case was behaved badly or who held grudges.
brought before the court and questioned by the Once a crime occurred, the victim or his or
legal authorities. The next stage of the hearing her family either made a petition to the legal

206
 PROCEDURAL LAW

authorities or informed their local governmen- punishment, such as laboring for the victim or
tal official of the crime. If the alleged criminal victim's family or being kept under house arrest,
was considered likely to try to escape, he or she was to be imposed, guarantors for the imposition
was arrested immediately, before the official in- of these sanctions had to sign the statement as well.
vestigation of the crime. The crime was then Following the signing, the criminal (or his
investigated by a clerk from the district office. family, employer, landlord, or the owner of the
The investigation consisted of collecting evi- land on which the crime was committed) paid
dence and interviewing the victim and his or her the monetary fines imposed by the legal author-
family. At this point, the identity of the alleged ity. Court costs and fees were then paid. Finally,
criminal was clearly determined by the investi- the physical sanctions imposed upon the crimi-
gating officials, and he or she was arrested if he nal were carried out, which may have included
or she had not been previously. From this point whippings and fetters.
until the legal authority made his decision in the As mentioned above, the Tibetans made use
case, the criminal was presumed guilty, and any of various devices, including oaths, to test the
show of remorse he or she made was weighed in veracity of the parties to a dispute. Persons tak-
his or her favor in determining sanctions. ing an oath would have to loosen their hair and
The criminal was brought before the court remove amulets, knives, and religious strings.
and the crime was announced by the govern- Then, while standing before the portrait of a
mental official who presided as the legal author- powerful god or goddess, they would swear that
ity in the case. The criminal was then whipped they were telling the truth. The god or goddess
and placed in jail, and sometimes in stocks and was believed to punish those who lied. In one
fetters as well. The legal authority then began case, a woman who took an oath that she had
to review the case and to hear evidence. The not committed sorcery began to bleed from her
criminal, the victim, and the victim's family were nose shortly after taking the oath, and she later
interviewed by the judge. If the facts established died, her death being attributed to the goddess
in the hearing did not conform to the criminal's Lhamo, before whose portrait she had taken the
testimony, the judge had the option of having oath. If both parties to a case agreed to an oath,
the criminal whipped. the oath was considered to settle the case be-
If the criminal's testimony continued to dis- cause the supernatural sanctions that the gods
agree with the testimony of the victim and the and goddesses applied in the case of liars were
victim's family, as well as the other facts estab- so sure and so severe. However, not all people
lished in the case, the case could be prolonged believed in the efficacy of an oath, and they were
indefinitely. In most instances, on the other hand, allowed to prohibit it from the legal hearing.
the legal authority was able to devise a writ- Also, some people were alleged to employ de-
ten statement of the facts with which all parties ception in the taking of oaths, and opposing
could agree. The statement, which also included parties could refuse to accept the use of the oath.
the sanctions to be imposed upon the criminal, If the established facts of a case were too
was read to the assembled parties to the case, who vague for a clear decision to be made by the au-
in turn were given time to discuss the provisions thorities, the parties would often agree to allow
of the statement privately. Unless the case was the case to be decided by the rolling of the dice.
to be referred directly to a higher legal author- Again, the power of the supernatural came into
ity, all parties to the case then signed their agree- play. Before rolling the dice, shouts were uttered
ment to the statement. If a long-term for the Dharma Protector Gods to make the dice

207
PURGE

roll in such a way as to indicate the truth of the

case. Each party rolled, and the one who rolled Barton, Roy F. (1973 [1949]) The Kalingas: Their
the highest number won the case. It was believed Institutions and Custom Law.
that if the dice gave the highest score to the party
French, Rebecca. (1990) The Golden Yoke: A Le-
in the wrong, the gods would later punish the
gal Ethnography of Tibet Pre-19 59.
party who won unfairly.
The Tibetans also had a device, called a Bab Lange, Charles H. (1990 [1959]) Cochiti: A New
or Ba> which they employed to ensure that con- Mexico Pueblo, Past and Present.
tractual obligations would be honored. It set The Rhodesian Law Reports, 1966. (1966) Ed-
forth fees that a party who did not perform ac- ited by H. G. Squires.
cording to a contract would have to pay.
Finally, the Tibetans at one time made use
of ordeals. First, the person who was to give tes-
timony spoke and then was given a test in which
supernatural forces would determine if the tes-
timony was true or false. These tests typically A purge is the removal
consisted of a person coming in contact with some PURC;I: of suspected or actual
very hot item, such as boiling oil or water or hot political opponents from
stones. In one type of ordeal, the persons tongue any sort of human group, whether they be po-
was touched to a piece of hot iron. The individu- litical, geographic, or commercial in nature.
als were then examined the next day, and if blis- Purges usually refer to the expulsion of relatively
ters were found they were deemed to have lied large numbers of people at a single time. In com-
in giving testimony. The use of ordeals in Tibet mercial groups, purges may be accomplished
had ended decades before the Chinese invasion. through firings. In more purely political groups,
Yet another way of handling a legal case is purges are accomplished through deportations,
presented by the Native American people of the exiles, imprisonments, and killings.
Cochiti Pueblo of New Mexico. There, the pro- The most infamous use of purges was in the
cedure is much simpler and faster. A person with former Soviet Union, especially under the re-
a complaint brings it to the pueblo s governor. gimes of Lenin and Stalin. During the Soviet
The governor himself investigates the matter. He period, direct political action was used to bring
then makes a decision on the basis of the infor- about purges far more frequently than was the
mation he has collected and upon legal prece- legal system, although the legal system was not
dent. If he cannot make a fair decision on this inactive either. Under Stalin, for instance, the
basis alone, he convenes a court of his lieuten- legal code was enlarged with a great number of
ant and members of the council. The court then new criminal offenses that were of a political
hears the testimony of the parties to the case nature.
and of all of the witnesses. The officers of the Most of the truly large-scale purges took
court then discuss the matter and render a deci- place under Lenin's CHEKA (All-Russian Ex-
sion. The governor then announces the decision traordinary Commission for the Suppression of
and the sanction, if the offender warranted one; Counterrevolution and Sabotage) and Stalin's
sanctions in the early 1950s included fines, com- NKVD (People's Commissariat for Internal
munity service, and whippings. Affairs), political action groups with tremendous
powers to kill or imprison in labor camps with-
See also OATH; ORDEAL; SUBSTANTIVE LAW. out legal trials. The activities of the CHEKA

208
 PURGE

A purge removes political opponents either physically or geographically from any group. Adolf Hitler determined
that Jews should be purged as part of his goal of an Aryan nation. Jewish women and children were gathered in
Warsaw, Poland, in 1943 to be sent to concentration camps and then killed.

were directed against opponents of communism been killed, the majority of them Soviet citizens
and the Communist party. The NKVD, on the who had once been loyal to him. Another rea-
other hand, attacked huge numbers of ordinary son for the purges was to fill the labor camps;
Soviet citizens who were suspected of disloyalty Stalin needed a great deal of cheap labor for his
to Stalin, and even political functionaries within building and industrialization plans, and he be-
the government whom Stalin believed disloyal. lieved that the best way to do that was with
However, the victims of the NKVD left behind forced labor.
kin and friends, and often these people wished The legal system was especially decimated
to avenge these deaths. This led the NKVD to by the purges, and it was left with virtually no
kill or imprison the kin arid friends of those personnel with legal training.
whom they had killed or imprisoned in the first
place. In turn, the relatives and friends of these
people had to be dealt with, and so the killings
went on in ever-widening circles, and before loffe, Olympiad S., and Peter B. Maggs. (1983)
Stalin was done with his purges, millions had Soviet Law in Theory and Practice.

209
 Among the Ifugao of the Philippines, for
example, houses are frequently disassembled and
moved by their owners. Houses are sometimes

R
sold and then moved for use by the purchaser.
Among the Ifugao, it is the house that has value,
not the land upon which it is situated. Likewise,
trees such as coconut, coffee, and areca trees also
have value and are owned, whereas the land upon
which they grow is valueless and therefore can-
not be sold or owned.
Under the laws of the United States,
Canada, and the countries of Europe, all land
that is not owned by individuals or groups of
individuals is owned by the state or the crown.
This is not so in many societies, including the
Ifugao. There, only three kinds of land may be
owned. Land that is used for the cultivation of
rice and forested land are owned by an individual
or family until they are sold or given to another
Real property refers to party. Land used for the cultivation of sweet
REAL PROPERTY property that is not potatoes is owned by the cultivator so long as he
movable, such as land cultivates it; when it grows over with weeds and
and buildings that are permanently attached to trees, it may be used by anyone who cares to clear
the land. Real property also includes the miner- the new vegetation and grow another few crops
als beneath the surface of the land. The term of sweet potatoes. All other land is unowned or
real property was given this name because earlier free land that may be used by anyone. The types
English speakers believed that land and perma- of ownership are linked to the length of time
nent buildings had more intrinsic worth than that the land is valuable. Forested lands provide
moveable items, or "personal property," and thus wood in perpetuity unless too many trees are cut.
was more genuine or "real." The term real prop- Likewise, rice fields, or padis, produce rice as
erty may also be abbreviated as realty. Real prop- long as there is sufficient water for the rice plants
erty law is sometimes called land tenure. The laws to thrive. Both of these types of land are owned
that govern the use and transfer of rights in real in perpetuity. As well, they may be pawned to
property are, in European, U.S., Canadian, and another if the owner needs money; the lender
many other legal systems, different from those has the right to farm the rice fields until the
regulating personal property. In the United States, owner pays back the money he has been lent.
for example, sale of rights in real property usually Sweet potato fields only produce usable amounts
requires the use of a deed, whereas the sale of of sweet potatoes for a few years, until weeds
rights in personal property usually does not. grow to the point that cultivation becomes more
Likewise, real property is frequently leased, work than it is worth. Thus, sweet potato fields
whereas personal property is not normally leased. are only owned as long as they are cultivated.
The division of property along these lines does Among the highly mobile Naskapi Indians
not appear in all cultures. In many socie-ties, of Labrador, Canada, there was traditionally no
for example, buildings are personal property. ownership of land. The only rights the Indians

211
REAL PROPERTY

had, which could be transferred, were rights of putes to legal authorities. Legal authorities
ususfructus, or usufruct. Ownership of land, weighed the strength of each claim to land and
which is a bundle of rights including those of made decisions as to where the proper bound-
usufruct, made no sense to the Naskapi because ary lines should lie. They also made decisions in
they were only interested in using the animals cases concerning the future use of land (for the
and trees on the land before they moved on to a later use of the children of the parties to the dis-
new place where the animals and trees were in pute). In such cases, they decided the boundary
greater abundance. The various bands within the lines of lands that were to become farms years
area would give each other usufructuary rights; later.
for instance, one band gave another the right to The main purpose of the decisions of the
hunt porcupines on the land it used in exchange Gusii legal authorities concerning land was not
for the right to hunt bears on the other band's to preserve the rights of those who had strong
land. Individuals and families had exclusive claims to land ownership, but to provide all Gusii
hunting rights on specific tracts of land, but this with relatively equal amounts of land. Thus, the
may have been because of competition for fur- goal of the Gusii land tenure system is very dif-
bearing animals as a result of the fur trade, which ferent from our own. Our land tenure system
was introduced by white people. These tracts of strives to protect the ownership rights of valid
land have been called hunting territories, and landowners, no matter how much land one owns.
their use is governed by the headman of the band, Thus, in our society, there are people who may
who must also resolve disputes over hunting ter- own real estate worth hundreds of millions of
ritory use. Hunting territory boundaries are dollars, while other people are homeless. The
made up of natural features of the land, particu- Gusii system strove to eliminate great differences
larly streams and rivers. in the amount of land members of the society
The Gusii people of western Kenya actually could own, at least in its earliest stages.
developed for themselves a new system of real Various aspects of a society's real property
property law in the period from 1925 to 1950. law can tell a great deal about other aspects of
This development occurred as a result of a great the culture. Among the Yoruba of Nigeria, there
increase in population. The Gusii are farmers traditionally was no such thing as tenancy. This
who raise both crops and livestock. Prior to the was because the land for a community was con-
1920s, there was plenty of land for everyone to trolled by the community and owned by indi-
farm. If one could not get land from one's par- viduals. Thus, if one is by descent a member of
ents, one simply went into the bush and cleared the community, one thereby has automatic ac-
whatever clan-owned land one wanted (all Gusii cess to land ownership. If one is a stranger to
lands were owned collectively by clans). By the the community, then one either becomes a natu-
1920s, however, there were so many people in ralized member of the community, and thus able
Gusii society that land was becoming insuffi- to own land within its bounds, or moves on to
cient in quantity. Land that one man had in mind another place. Naturalization meant, for a man,
for his young son's future use often turned out that he married women within the community
to be land that a neighbor had in mind for his and swore loyalty to the community's chief.
own son's future use. Also, people began to put
up fences and hedges to keep their neighbors See also PERSONAL PROPERTY.
from encroaching on their own farm lands. Dis-
putes over land became more common, and for
the first time people began to take these dis- Barton, Roy F. (1969 [1919]) Ifugao Law.

212
 REASONABLE MAN

Lips, Julius E. (1947) "Naskapi Law." Transac- ning down the street wearing clothes other than
tions of the American Philosophical Society athletic clothes? Yes. The shooting of a police-
37(4): 378-492. man by Lee Harvey Oswald was consistent with
Lloyd, Peter C. (1962) Yoruba Land Law. what a reasonable man would have done after
shooting the president of the United States and
Mayer, Philip, and lona Mayer. (1965) "Land
being confronted by the policeman. Acting as a
Law in the Making." In African Law: Adap-
reasonable man would after commission of an
tation and Development, edited by Hilda
offense is taken as a form of proof of guilt.
Kuper and Leo Kuper, 51-78.
The concept of the reasonable man comes
up in the law in many different guises in differ-
ent societies. It does not always refer to people
who have committed crimes and who are being
judged on the basis of their behavior after the
The term reasonable man crime. For example, an Ifugao man or woman
REASONABLE refers to a society's ideas can divorce a spouse if that spouse is unreason-
MAN about what is reasonable ably jealous or unreasonably lazy. If an Ifugao
behavior by determining person uses another person's rice field, and the
what a reasonable man would do in a given situ- owner wants it back, the owner must pay the
ation. These standards are not part of any one who worked the field for his labor, unless
society's codified law, but rather come into play that payment is unreasonable.
in judicial proceedings and vary from society to Among the Nuer of Africa, if two groups
society. The concept of the reasonable man is are feuding with each other, and a man from the
common to all legal systems, although the people first group kills a man from the second group,
using it may not be able to state it as a distinct the killing is considered a malicious rather than
concept. an accidental killing, since this is reasonable be-
Among the Barotse of Africa the concept havior for members of groups that are feuding
of the reasonable man was applied in determin- with each other. The same is true for the Kalingas
ing basic legal standards. The Barotse have two of the Philippines and there have even been cases
standards in their law: (1) the reasonable man there in which accidental woundings between
and (2) the ideal man. The ideal man is one who members of feuding groups have been called
behaves in the best possible manner in all con- deliberate by the person who committed the
ditions. Such a man obviously does not exist. wounding, so that he could claim to be carrying
But if one behaves at the minimally correct stan- out his obligations in the feud.
dards of behavior, one behaves as a reasonable Among the Tiv of West Africa, the concept
man would and, therefore, in a legal fashion. of the reasonable man came into play in deter-
In Western legal systems and some other mining the degree of behavior that constituted
places, the reasonable man is a hypothetical man an offense. For example, the Tiv considered it
who is used in the judgment of an accused per- reasonable for a man to beat his wife, but unrea-
son. The actions of the accused are compared sonable and thus illegal for him to beat her to
with what a reasonable, normal person would the point that she could not work. It was rea-
do in the circumstances in which the accused sonable for a man to want to sleep with as many
found himself during or after the commission women as possible, but unreasonable and there-
of a crime or civil offense. Would a reasonable fore illegal to commit incest in doing so. It is
man who had just committed a robbery be run- reasonable (though wrong) to steal from people

213
REBELLION

to whom one is not related, but unreasonable of a rebellion is to remove and replace the exist-
and thus illegal to steal from one s family. ing government with another. Successful re-
Also among the Tiv, there were reasonable moval of the existing government is known as a
grounds for divorce, and grounds that were un- revolution.
reasonable, in which cases the legal authorities An interesting case of rebellion took place
did not grant divorces. For example, a woman in China around 1900. In that example, rebel-
who asked for a divorce from her husband sim- lion broke out not against the official central
ply because she did not like him was regarded as government, but against the de facto government
being unreasonable in her request, and she was of China, which was composed of an informal
denied. On the other hand, a woman who asked alliance of provincial Chinese leaders and for-
for a divorce because her husband failed to give eign businessmen. At the time, China was eco-
her adequate clothing and fields, and who re- nomically in poor shape. Much of the reason
fused to pay attention to her, was successful. Also for China's condition was due to a lack of effec-
successful was the woman who asked for a di- tive national leadership. For whatever reasons,
vorce on the ground that her husband used magic the emperor and his government (the Ch'ing
to restrict her social contact with others; she used Dynasty) was initially unable or unwilling to pre-
as proof that her husband had cut some of her vent foreign interests from controlling the na-
hair and fingernails to use in a magical charm. tional economy for their own profit, to the
His behavior was regarded as unreasonable. detriment of the well-being of the Chinese
The concept of reasonable is one that obvi- people. Foreign businesses brought in many
ously can be used flexibly in law and elsewhere. products that were less expensive than Chinese-
As such, it helps law adapt to new situations. made products, and so drove Chinese manufac-
turers out of business, creating widespread
unemployment. Foreign interests also imported
Barton, RoyF. (1973 [1949]) TheKalingas:Their railways, which put much of the Chinese trans-
Institutions and Custom Law. portation industry out of business. This, in ad-
. (1969 [1919]) IfugaoLaw. dition to the behavior of the foreign missionaries,
Bohannan, PaulJ. (1957a) Justice and'Judgement which many Chinese found offensive, led to a
among the Tiv. wave of xenophobia among much of the Chi-
nese population.
Evans-Pritchard, E. E. (1940) TheNuer.
Perhaps no one was more xenophobic than
Gluckman,Max. (1967 [1955]) The Judicial Pro- the members of some of the Chinese secret so-
cess among the Barotse of Northern Rhodesia. cieties. The societies, with names like Society of
. (1965c) "Reasonableness and Respon- the Elder Brothers (Ko-lao-hui) and Society of
sibility in the Law of Segmentary Societies." the Big Saber (Ta-tao-hui\ had been dormant
In African Law: Adaptation and Development, for some time previously, but rallied behind the
edited by Hilda Kuper and Leo Kuper. task of ridding China of its foreign influences.
Many of the members of these secret societies
practiced Chinese martial arts, and so were
known as "Boxers" in the West. The Boxers be-
Rebellion is open and lieved that they were invulnerable to danger be-
RKBKLLION active resistance to the cause of the magic they used.
established leadership Their xenophobia translated into physical
and authority of a society. Sometimes, the goal attacks upon whatever they considered to be

214
 REBELLION

Rebellion is an open and active resistance to established leadership and authority. Chinese citizens urged that
their government become more democratic in a rebellion in 1989. During the uprising, one man stood
against a column of government tanks in Beijing.

foreign or tainted by foreign influence. They at- Ch'ing government in Beijing. These provincial
tacked factories, Christian Chinese people, rail- leaders favored the continued presence of for-
roads, stores that sold imported goods, and eign interests because they profited from it and
missionaries. Foreigners in China, or those with because the foreigners helped to keep them in
business interests in China, became worried when power. The foreign powers, including the United
the rebellion spread to the large cities of China. States, with the support of the Chinese provin-
Chinese who supported the Boxers gained cial leaders, used their armies to defeat the Boxer
control of the official Ch'ing government, and Rebellion, drive the emperor and empress into
the government in turn declared war on the for- hiding, and sack Beijing. In 1901, the defeated
eign nations involved in China. But the Ch'ing central Chinese government agreed to pay
government controlled China only nominally. reparations of $450 million to forbid all hostili-
Most of the country was controlled by various ties to non-Chinese, to stop importing weap-
individuals in the provincial regions of China, ons, to execute some of the governmental
people who paid little attention to the central leaders of the Rebellion, and to agree to allow

215
RECIDIVISM

foreign troops to safeguard theTianjin-Beijing tlers. All of these resentments began to come to
railroad. a boil in 1739. To compound the problem, the
Though rebellions have occurred, and con- annual September harvest was very poor. The
tinue to occur, all over the world, certain places Yaquis were hungry, and yet the missionary
at certain times were the scene of frequent re- priests would not let them eat food the Yaquis
bellions. For example, the southeastern United had grown for the mission; later, one priest sold
States saw many slave rebellions prior to the to the Yaquis some of the corn from the mission
emancipation of the slaves. Another example of farm, the very same corn that the Yaquis them-
frequent rebellion was seen in what is now the selves had grown.
southwestern United States and northern Thus began the Yaqui rebellion of 1740. To
Mexico during the seventeenth and eighteenth start with, the rebellion began as a series of raids
centuries, when many of the Indian peoples there by Yaqui people on Spaniards simply to obtain
rebelled against the Spanish government and the food. The Spanish responded by sending out the
Catholic priests and missions. One of the In- citizen militia. Early fights produced standoffs.
dian peoples who came under Spanish and The Yaqui rebellion leaders also took an interest
Catholic rule was the Yaquis of northern Mexico. in beating and lecturing missionary priests and
The Spanish began by converting people to other Spaniards who had in the past tormented
Catholicism, and to do this quickly, they moved the Yaquis.
the Yaqui people from their dispersed settlements The scale of the rebellion grew, and genu-
to large towns, where the Jesuit missionaries ine battles ensued in which people were killed.
could minister to many Yaquis at once. The Eventually, the Spanish killed all of the rebel
Yaquis resented being forced to move. The mis- leaders, and indeed all Yaqui leaders. In fact, the
sionaries taught the Yaquis European farming Yaquis were to emerge from the rebellion with
methods, but then forced them to work in large an inability to produce native leaders for another
communal farms, the surplus of which was used fifty years. The Yaquis were thoroughly beaten,
to extend the reach of the Jesuit missions in and the Jesuits were in control.
California. The missionaries tried to make the
Yaquis give up much of their traditional culture,
such as long hair on men, the Yaqui pole dance Gernet, Jacques. (1982) A History of Chinese
(which involved dancing around a pole on which Civilization. Translated by J. R. Foster.
were placed parts of the bodies of enemies or
Spicer, Edward H. (1980) TheYaquis:A Cultural
lawbreakers), and the use of alcohol, all of which
History.
caused further resentment among the Yaquis.
The Spanish also forced the Yaquis to pay taxes
and to labor uncompensated in the mines. The
Spanish punished offenses against Spanish law
with corporal punishment (whipping), some-
thing the Yaquis had never before experienced. A recidivist is a person
Also, the Spanish encouraged "coyotes" (people RKCIDIVISM who commits the same
of mixed Spanish and Indian blood) to live in legal offense one or more
the Yaqui towns; the Yaqui people resented this times after having already been convicted of the
because the coyotes actively supported the offense, or who repeatedly commits an offense
Catholic priests. Finally, the Spanish took much of similar magnitude or gravity after having
of the Yaquis' land and gave it to Spanish set- already been convicted of one such offense.

216
 RECIDIVISM

Another term for the recidivist is "repeat of- as modified by the Law of March 26, 1891,
fender." In many societies, the legal system pro- and also with Articles 54-57 of the Belgian
vides greater sanctions for those who commit Penal Code.
legal offenses repeatedly. 2. The interpretation of Article 48 has
Following are some Egyptian statutes, and given rise to certain difficulties, and the fol-
commentary on those statutes, on the matter of lowing points should be noted:
recidivism. These statutes indicate the attention (a) It is the existence of a previous sen-
paid to recidivists in many societies, reflecting tence and not that of a previous offence which
the widespread belief that those who violate makes a man a recidivist. The idea of the leg-
the law are those most likely to so again in the islator appears to be that the heavier penalty
future. for recidivity is necessary because the previ-
ous sentence has not been sufficiently deter-
48. A person is said to be a recidivist: rent. Indeed, if a person is prosecuted for an
offence committed prior to a previous sen-
(1) Who, having been sentenced to a tence, he may be entitled to a mitigation of
criminal penalty, is found guilty of a crime or sentence under Article 35. Yet it is clear that
misdemeanor committed subsequently to the it is not necessary that the recidivist should
passing of such sentence; or have actually undergone his previous sentence.
(2) Who, having been sentenced to im- He may have escaped, but the previous sen-
prisonment for a year or more, is found guilty tence nevertheless counts against him, subject
of a misdemeanor committed subsequently to the provision of paragraph 2 of Article 48.
within a period of five years from the expira- A conditional sentence does not however
tion of his sentence or from the date at which count for recidivity if the conditions of dis-
such sentence is barred by prescription; or charge have been fulfilled. As, however, sen-
(3) Who, having been sentenced for a tences to imprisonment for less than a year
crime or misdemeanor to imprisonment for can alone be made conditional under Article
less than a year or to fine, is found guilty of a 52, and do not count for recidivity under Ar-
misdemeanor similar in nature to his former ticle 48 (3) after five years from the date of
offence and committed within a period of five the sentence, this point can but rarely arise
years from the passing of such sentence. under Article 48.
(b) The distinction between sentence to
For the purposes of recidivism, theft, ob- a criminal penalty and being found guilty of a
taining by false pretenses, and abuse of confi- crime must be remarked (cf. Articles 25, 27).
dence are deemed to be offences of a similar The Code does not treat as a recidivist under
nature. Article 48 (1) a person who, though found
guilty of a crime, is punished only with a cor-
49. In the case of recidivism as defined by the rectional penalty by application of Article 17,
preceding article, the Court shall have power unless he is found guilty of a subsequent mis-
to impose a penalty in excess of the maximum demeanor within a period of five years. If the
prescribed by law for the offence, so never- subsequent offence was also a crime, he is not
theless that such penalty shall not exceed twice a recidivist at all, for the second offence must,
such maximum. under Article 48 (2) and (3), be a misde-
Provided always that the duration of a meanor. The commission of a crime subse-
sentence of penal servitude for a term or of quent to a sentence for a misdemeanor does
detention shall in no case exceed twenty years. not make a person a recidivist. This at first
l.The Egyptian articles maybe compared strikes one as illogical, but the court has such
with Articles 56-58 of the French Penal Code wide powers in sentencing for crime that it

217
RECIDIVISM

becomes unnecessary in this special case to render an execution liable to the penalties for
increase them. recidivity, such a misappropriation being an
(c) The French jurisprudence favors the offence sui generis, punished as being a dis-
view that no sentence can count for recidivity obedience to the orders of the law and author-
until it is final, and from that date only. This ity, not as a breach of rights of property." As I
may raise a difficulty in the case of sentences have elsewhere remarked, this Circular of the
by default which have not been notified, or Committee was issued prior to the Code of
sentences in contumacy, since these are not 1904, and related to the offence punishable
final. It has been therefore suggested that the under Article 460 of the Code of Civil and
courts should hold that the first sentence must Criminal Procedure. Its reasoning does not
count for recidivity as from the date when it appear to me to be applicable to the offence
was first pronounced, if it has been subse- under PC., Article 180. There is indeed good
quently confirmed or made absolute. ground for holding that the offence under this
(d) The terms of Article 48 (2) are am- latter article is assimilated in all respects to
biguous. They have been generally interpreted theft, and is an application of a broader con-
to mean that the period during which the sec- ception of theft than that suggested by the
ond sentence must have been pronounced be- Committee. Other circulars of the Commit-
gins to run only from the date when the first tee have laid down that attempt to commit
sentence has either expired, or been prescribed. theft is a similar offence to theft, and that in-
The more recent French jurisprudence upon sult is not a similar offence to the infliction of
the similar terms of F.P.C., Article 57, favors wounds and blows. These conclusions are ob-
the view that the period begins to run from vious. Whether the receiving of stolen goods
the date of the first sentence and continues under Article 279 is a similar offence to theft
until the end of five from the expiration or has been disputed. One would have thought
prescription of that sentence. This view seems that there could have been no doubt as to the
more consonant with the scheme of the article. similarity, but that M. Grandmoulin adopts
(e) Contraventions do not count for the contrary view. In France, receiving stolen
recidivity; but there exist outside the Code cer- goods is a species of complicity and is as such
tain special provisions providing for the en- similar in nature to the theft. I can entertain
hancement of penalties on repeated no doubt that extortion is a similar offence to
commission of breaches of various decrees. theft, and that the abuse of a signature in blank
3. The provisions of Article 48 (3) estab- is similar to forgery, and is also similar to abuse
lish a form of "special" recidivity. The inflic- of confidence.
tion of the severer punishment here depends,
not upon the habitual criminality of the of- 50. If a recidivist, who has previously been sen-
fender in a general sense, but upon the ten- tenced to two penalties restrictive of liberty,
dency to commit offences of a particular kind. each of which was one year or more in dura-
Compare Article 58 of the French Penal Code. tion, or to three such penalties one of which
The offences committed by the recidivist at least was one year or more in duration, for
under this paragraph must therefore be simi- theft, receiving stolen goods, obtaining by false
lar. The Committee of Judicial Supervision has pretenses, abuse of confidence or falsification
laid down that "in order that there may be or for attempt to commit any of such offences,
between two offences sufficient analogy or is found guilty of any misdemeanor of theft,
similarity to be a ground for the application receiving stolen goods, obtaining by false pre-
of the penalties for recidivity, each offence tenses, abuse of confidence or falsification,
must be a breach of the same right. Theft is committed subsequently to the last of the
essentially an attack upon the property of an- former convictions, the Court may sentence
other. It cannot consequently count so as to him to penal servitude for a period of not less

218
 RES JUDICATA

than two nor more than five years instead of character to the consummated or principal
applying the provisions of the preceding offences. Article 50 expressly states that at-
article. tempt is to count as the first or second term
for recidivity under it. It is rather odd that it
51. The Court shall have the like power in the should not be expressly mentioned in the list
case of a recidivist who, having been previ- of offences to count for the third term and the
ously sentenced to two penalties restrictive of conclusion has been drawn that it would not
liberty each of which was one year or more in so count. M. Grandmoulin points out that
duration, or to three such penalties one of Articles 50, 51 do not seem to require that
which at least was one year or more in dura- each offence counting for recidivity under
tion, for any of the offences falling under Ar- these articles should be separated from the
ticles 310, 311, 321 or 322, is found guilty of other by a previous conviction. Only we must
an offence falling under Article 310 or Article note that the last offence of the series must be
321 committed subsequently to the last of the committed subsequently to the last of the
former convictions. former convictions. Indeed, it seems that the
1. These two articles have a view particu- first two sentences counting in the series might
lar cases of recidive speciale. have been inflicted simultaneously. This at
They deal with: (a) persons who are in least is the opinion of the Committee of Judi-
the habit of committing theft and other of- cial Supervision.
fences involving fraud and dishonesty; (b) per- 4. Note further that, so long as the of-
sons who are in the habit of injuring animals fender is a recidivist (this condition governing
or property, offences very common in Egypt. both Arts. 50 and 51), it is not requisite that
2. To be liable to the increased penalties the sentences counting for recidivity should
under these articles the accused must in all have been passed within any particular time
cases be a recidivist, that is to say, he must come limits. Thus, suppose A is sentenced to a year's
within the terms of Article 48. "In order that imprisonment for theft and seven years after-
the accused may come under Article 50 he wards to six months' imprisonment for obtain-
must be a recidivist, that is to say, that the con- ing property by false pretenses. If within five
dition of recidivity must have existed at the years from the second sentence he is found
time when he committed the offence of which guilty (say) of theft, he will be a recidivist un-
he is accused; in other words, there must have der Article 48 (3) and liable to penal servitude
been against him a previous conviction, he under Article 50.
having been sentenced either to a criminal
penalty under Article 48 (1) or to penalties
under the conditions specified in Article 48 See also CAPITAL PUNISHMENT; CRIME.
(2) (3)." Thus it is an essential condition of
the application of Articles 50 and 51 that the
offence for which the offender is sentenced Goadby, Frederic M. (1914) Commentary on
under that article makes him a recidivist un- Egyptian Criminal Law, Parti.
der Article 48 by relation to a sentence previ-
ously pronounced.
3. The list of "similar" offences under Ar-
ticle 50 is wider than that under Article 48,
for the former expressly includes, besides the
offences mentioned in the latter section, the Res judicata (or, origi-
receiving of stolen goods and falsification. I Ri;sJui)ic\TA nally in Latin, res iudi-
have already mentioned that attempt and par- catd) can be translated
ticipation should be regarded as similar in as "the thing that has been decided." It refers to

219
REVENGE

the final decision made by a legal authority in a had been assessed and everything else!! Some
case, which then cannot be reopened; it signals people do this all the time; it is common. There
the end of the legal affair. In the federal law of is even a lama in our area who always brings
the United States, a situation of res judicata up new cases like this regardless of the reason.
comes about when the United States Supreme
Court makes a decision on a case, or when it The Tibetan party to a dispute could choose
refuses to hear a case, thereby allowing the pre- the court in which he wanted his case heard. If
vious decision to stand as the final one. For of- he disliked the verdict given by that court, he
fenses against the law of a particular state, it is could take his case to another. Unlike the United
the decision of the state supreme court (or court States legal system, if a Tibetan high court pro-
of appeal in some states) that signifies res duced a verdict that one party disliked, he could
judicata. In these situations, res judicata comes take the case to a lower court, prolonging by years
about because there are no higher courts to which the time the case spent before the courts.
one can appeal. The end result of the extensive legal actions
It is a commonly held understanding of le- that the Tibetan legal system encouraged was
gal anthropologists that res judicata is found in that the parties would finally come to some
all societies because it is in the interest of every mutual agreement on the facts of the case, then
society that disputes be put to an end at some come to an agreement on the resolution of it. A
point or another. Disputes that are allowed to formal ritual was performed when this occurred,
continue over long periods of time are destruc- involving apologies, the exchange of white
tive to social unity, order, and peace. scarves and food, and a statement that the con-
In one society, at least, there is no res judicata flict had ended. So, in fact, though the Tibetan
in civil cases. Under the law of Tibet (before the legal system has no res judicata, it does promote
1959 invasion by Communist China), a party to social peace and unity in the end, even though
a civil legal proceeding could renew the dispute the end may take years to reach.
in the courts at any time, even years after a deci-
sion. Far from bemoaning this as a weakness in
their legal system, the Tibetans see this feature French, Rebecca. (1990) The Golden Yoke: A Le-
in a positive light. According to Rebecca French gal Ethnography of Tibet Pre-1959.
(1990: 406), the Tibetans consider the absence
of res judicata as promoting "harmony, cathar-
sis, reconciliation and truth." French (1990:407)
gives the following account by a Tibetan of a Revenge is the infliction
case that was reopened years after the courts had RI:VKNC;I: of harm on another
made a decision. party in return for the
harm suffered at the hands of that other party.
There was a land case in our area which was
It is also known as the avenging of, or taking
the basis of a dispute. When the parties went
vengeance for, acts of injury by another. Revenge
to court, the district official favored one side,
it was thought dishonestly. When the new is not law, and it may or may not be permissible
district official came after three years, the man under the law, depending upon the circum-
decided to bring the case up again even though stances, the society, and the legal system in-
there had been a final decision which the par- volved. Revenge not infrequently leads to
ties had signed, a liquidated damages clause counterrevenge and feud.

220
 REVENGE

The Kaoka people of Guadalcanal, in the then take several other men and form a troop to
Pacific, believe, as do many peoples around the do the killing. The troop leader would also make
world, that death is always or almost always the sure that the priests had performed the neces-
product of homicide inflicted by another party. sary magical acts to ensure the success of their
If a child dies within the first five years of life, mission.
he or she is believed to have died of ordinary The troop leader then assembled his men
illness. Any other death is believed caused by for the attack. The men would be armed with
the actions of another human being and accom- spears, the points of which were carved from the
plished by the use of sorcery (unless there are shinbones of former enemies. They also carried
obvious physical means at work). In order to clubs and shields, and a few had bows and ar-
punish the murderer, revenge is taken. rows. One of the objectives of the raid was to
The Kaoka wishing to exact revenge is first use surprise, and so the raiders would attack at
faced with the problem of identifying the sor- dawn, when members of the enemy's camp be-
cerer. People generally have a good idea of who gan to leave their huts. Though the raiders aimed
the sorcerer may be, usually someone belonging primarily at killing the sorcerer, they also killed
to a group that has long been hostile to the group other people if they could. Sometimes, surprise
of the deceased. However, to find the individual was not possible, and the enemies killed some
responsible requires the hiring of a diviner known of the raiders.
as a toiai. The diviner is capable of bringing the The raiders took heads and legs as trophies
soul of the deceased into a certain kind of nut, and then returned home. The raiding had made
which he holds in his hand. Once there, the di- the raiders spiritually polluted, and so they re-
viner asks him or her a number of questions in mained in seclusion from the other members of
order to establish the identity of the murderer. the village for a few days. After this time, the
The soul in the nut is only capable of answering villagers who had requested the raid gave the
either "yes" or "no." A "no" answer is signaled by raiders a large feast, at which the decaying head
a still nut. A "yes" is given by the nut moving, of the sorcerer was displayed.
and sometimes pulling the diviner. So, the di- The victims of the raid had scattered in the
viner asks the soul questions such as "Did your jungle, and returned only after they were sure
killer come from the north?" or "Did your killer that the raiders had completely gone. Then they
come from the X group?" Finally, the culprit's began plotting their own raid in revenge of the
name is revealed. one they had suffered. Their targets were the
Next, those wishing to take revenge must raiders who had attacked them, never the vil-
decide upon the manner in which they will do lagers who had requested the raid in the first
it. The headman of the village will call a general place. Raiding turned into feuding, and eventu-
meeting to discuss the matter. In the past, be- ally the two enemies met in a large pitched battle.
fore colonial powers came to Guadalcanal, fight- The losers would then escape into the jungle to
ing could be used for the revenge of a murder, live far away.
but today, only sorcery can be used. In the society of the Tiwi, an Aborigine
In the past, the villagers who chose to kill people in northern Australia, revenge was often
the murderer would also select someone to carry used as a means of saving face. If, for example,
out the revenge killing. This would be someone an older man with many wives found that one
with a good reputation as a fighter, often the of his wives was having sexual relations with a
headman himself. The person selected would young man (who was not married because most

221
REVITALIZATION MOVEMENTS

of the women were married to older men), his

pride was injured. In order to achieve social Hart, C. W. M., and Arnold R. Pilling. (1960)
peace, the two men took part in a highly for- The Tiwi of North Australia.
malized act of revenge, designed to insult the
Hogbin, Ian. (1964) A Guadalcanal Society: The
culprit and restore the other man's pride. In for-
Kaoka Speakers.
mal Tiwi revenge taking, all of the people in the
village would gather around in a circle. There,
the older man would face the younger man and
begin to insult him. He would loudly proclaim
that the young man had acted badly, and that he
should not have done so, and then proceed to Anthony F. C. Wallace
list all of the good things that he himself had RKVITALI/ATION has defined the revital-
done in the past on behalf of the young man. MOVKMKNTS ization movement as "a
The point of all this was to shame the young deliberate, organized,
man and to portray him as someone who had conscious effort by members of a society to con-
repaid the kindness of the old man by seducing struct a more satisfying culture" (1956: 265).
one of his wives. It also had the effect of telling One of the main aspects of culture that is typi-
the young man that in a peaceful society every- cally involved in revitalization movements is
one had to help one another rather than try to politics. What distinguishes revitalization move-
hurt one another. ments from other types of culture change is that
At this point, the old man was quite angry in revitalization movements the members of the
and began to throw spears at the young man. By society who are changing the culture are con-
the established rules of this form of revenge tak- scious of their decisions to change the culture
ing, the young man was allowed to jump in the and are also conscious of the direction in which
air or to weave and duck so as to avoid being they wish to change the culture. Most culture
struck by the spears, but was not allowed to run change occurs without the people affected be-
around to do so. This the young man proceeded ing very much aware of it, at least until after it
to do for ten or fifteen minutes, unless one of occurs. Most culture change comes about as a
the spears went wild and struck a bystander, result of people simply going about their lives
which ended the affair. The young man could while trying to attain their own goals, without
easily dodge the spears all day if he wanted to, thinking much about the effects of their actions
because the spears were slow and the young man on the culture as a whole.
was quite agile. However, to do so would make There are several kinds of revitalization
the old man appear even more foolish than had movements, which have been called by various
the seduction of his wife, and this would have names in the past, including nativistic move-
been the direct opposite of what the formal re- ment, reform movement, religious revival, so-
venge taking aimed to achieve. So, after dodg- cial movement, mass movement, Utopian
ing the spears for a while, the young man allowed community, cargo cult, charismatic movement,
himself to be struck by the spear in such a way and others. It is, however, possible to organize
as to make a flesh wound that would appear se- revitalization movements by the type of culture
rious and give a lot of blood, but which would, change being effected and by the agent by which
in fact, heal quickly. This done, the old man had the members of the society believe the change is
his honor restored, and the matter was finished. to take place.

222
 REVITALIZATION MOVEMENTS

One important type of revitalization move- lets on those who wore the special shirts cast
ment is the nativistic movement. This is a con- doubt on the Ghost Dance Religion.
scious effort to return a people culturally and The antiwhite message of the Ghost Dance
socially to an earlier time when, it is believed, Religion marks it as a nativistic movement.
things were better. This is to be done by remov- However, because it also involved belief in an
ing all elements of the culture and environment apocalyptic world transformation, involving the
that are believed to be foreign. A distinguishing extermination of whites, the return of the dead
feature of this type of movement is the belief Indians, and the return of the bison, the Ghost
that it is culturally alien things that have caused Dance Religion can also be called a millinerian
harm. A good example of this is the Ghost movement.
Dance Religion, which appeared among Ameri- Another kind of millenarian movement,
can Indians of the Great Basin and the Great found in parts of Melanesia, is the cargo cult.
Plains of the United States in the late nineteenth Cargo cult movements also emphasize apoca-
century. This religion began with a vision that lyptic world transformation, but rather than
came to a Paiute man named Wovoka, who lived working for the removal of foreign cultural
in Nevada. Wovoka said that in his vision he elements, they actively seek to import foreign
was instructed that if Indians performed a spe- cultural elements as a means to cultural revital-
cial dance (the Ghost Dance) and did some other ization. Such movements are known as vitaliza-
things, all the dead Indians would return to life, tion movements.
thus the name "Ghost Dance." Wovoka's mes- Cargo cults came about largely because of
sage traveled across the plains, and was espe- the great differences in technology between the
cially well received among the Sioux. The Sioux Melanesian peoples and the explorers, mission-
added their own unique touches: they believed aries, and military men from Europe, North
that the performance of the Ghost Dance would America, and Japan. Melanesian groups, from
mean that all the bison would return to provide time to time, believed that the European, North
abundant food for the Indians, and that all of American, and Japanese people would eventu-
the white people would die. The Sioux Ghost ally, if given proper ritual treatment, let the
Dance Religion also promised its adherents that Melanesians in on the secret of their wealth in
they could fight the white man safely if they wore goods, which bespoke a much higher technol-
special Ghost Dance shirts, which would pro- ogy. The word "cargo" is Melanesian pidgin for
tect them from the white man's bullets. The trade goods, the central focus of the cargo cults'
Ghost Dance found a receptive audience among activities. These activities included the construc-
the other Indians of the Great Plains, Great tion of mock radio aerials in some places, such as
Basin, and parts of the Southwest, who had been the westerners and Japanese had, or mock landing
dispirited and in social turmoil following the strips for airplanes, or mock docking facilities for
disastrous effects of their contact with the white ships, depending upon the particular cargo cult.
man, and spread to most of the peoples of these The Melanesians had apparently decided that
regions. The end of the Ghost Dance Religion since their foreign visitors had made these things,
came when approximately 200 Sioux Indians, and following their construction trade goods had
among them some Ghost Dance adherents, were arrived, then it must be these things that would
killed by U.S. Army personnel in the Wounded likewise bring trade goods to them.
Knee, South Dakota, massacre of 29 December The history of one cargo cult is as follows.
1890; the effectiveness of the white mans bul- In 1946, an Australian patrol entered an

223
REVITALIZATION MOVEMENTS

Self-proclaimed messiah David Koresh, leader of the Branch Davidian Sect, an example of a revitalization
movement, stands with his wife, Rachel, and son, Cyrus.

unpacified part of central highlands New end of the world was a common feature of cargo
Guinea. There, the patrol found a group of cults, and this is why they are termed millenarian
people who, after seeing the white people, be- movements.
lieved that an earlier prophecy was about to be Another type of revivalistic movement is
fulfilled. The prophecy was that the arrival of built around a belief in a divine savior who takes
the white people indicated that the end of the human form, a type of movement called "messi-
world was also about to come. In preparation anic."The religions of Buddhism and Christian-
for the end, they slaughtered their pigs, a major ity were both originally messianic movements.
source of food for the group. They did so in the A more recent example is the Branch Davidians,
belief that the end of the world would bring with whose leader, David Koresh, was apparently con-
it the "Great Pigs," and that their ordinary pigs sidered by its members to be a divine savior.
would be of no account. They erected mock aeri- Others include Jim Jones of Jonestown, Guyana,
als to receive news of the apocalypse, and many and Syoko Asahara of Japan.
also believed that the apocalypse would turn their An especially famous example of a messi-
dark skins white. The notion of an impending anic movement is the Handsome Lake Religion

224
 RIGHTS, CHILDREN'S

of Iroquois Indians of New York State and and preserving settlements in Israeli-occupied
Ontario. In the 1700s, the Iroquois, demoral- territories. In short, the Gush Emunin was a suc-
ized by military defeat, the loss of land, new dis- cessful revitalization movement in the respect
eases, and alcohol, heard a new voice, that of that it became a standard feature of the Israeli
Handsome Lake, a Seneca (one of the Iroquois political scene with a constant presence and in-
tribes). Handsome Lake's prophecy stressed a fluence on national politics.
fusion of traditional Iroquois religious beliefs, Not all revitalization movements are so suc-
Christianity, abstention from the consumption cessful. The Ghost Dance Religion ended tragi-
of alcohol, and a strengthening of family ties. cally with the deaths of many people, as did
The Handsome Lake Religion survives today the Branch Davidians, the People's Temple of
with a substantial following. Jonestown, Guyana, and a cargo cult in Mela-
A final type of revitalization movement is nesia whose members attempted to fight the
the revivalistic, a type of movement that em- Japanese navy in World War II and who believed
phasizes a return to an earlier form of the cul- that their magic would protect them against
ture, in whatever form the movement leaders Japanese bullets. Other revitalization movements
portray it, whether such a form actually once have simply evaporated as adherents came to
existed or not. An example of this type of move- realize that their leaders were not messiahs, or
ment is the Gush Emunin (bloc of the faithful) that the millennium was not going to come, or
movement in Israel. This movement emphasized that the cargo would never arrive.
the revival of Zionist ideology, Zionism being a
movement for Jews to settle Palestine, which had
been largely dormant since the creation of the Lewellen,Ted C. (1992) Political Anthropology:
state of Israel. Zionist ideology includes the idea An Introduction. 2d ed.
that in the past, in biblical times, the Jews were
Wallace, Anthony F. C. (1956) "Revitalization
a great and heroic people. The Gush Emunin
Movements." American Anthropologist 58:
stresses a return to the kind of strict religious
264-281.
observance that, adherents believe, characterized
the behavior of the ancient Jews who had been Worsley, Peter M. (1959) "Cargo Cults." Scien-
so great. It also has as one of its recurrent themes tific American 200: 117-128.
the land of Palestine, which the ancient Jews
controlled and which modern Jews must once
again control if they are to return to their former
greatness. Thus, movement followers believe that
the lands won in the wars of 1967 and 1973 are
of crucial importance and must never be surren- The legal rights of chil-
dered. Members of the Gush Emunin were the RIGHTS, dren within the family
ones who illegally occupied houses in the Sinai CHILDREN'S make up an important
in an effort to prevent its return to Egypt, which part of the field of fam-
the government of Israel had decided to do to ily law. Among the Kuria people of Tanzania,
promote peace. The Gush Emunin has since de- children traditionally belonged to the man who
veloped into a bureaucratic organization with was at the time of birth married to the child's
specialized arms to pursue its political and reli- mother; marriage, in this society, was finalized
gious aims. One of these arms is the Amana, by the payment of a bride-price by the husband.
which is specifically dedicated toward creating However, it was not unheard of for a child to

225
RIGHTS, CHILDREN'S

A Pakistani boy digs clay with two men tofeed brick kilns near Rawalpindi in 1994. The legal rights of children
make up a large part of family law as well as laws involving their exploitation as laborers.

have been born into and raised in the house of a known and put him or her into the house of the
man with whom the mother was living, even mother's husband, especially if the man with
though she was legally married to another man. whom the woman was living was the child's
Under traditional law, the child still belonged to natural father. In other words, the national courts
the man who was married to the mother, even if considered the child's rights as well as the rights
the child never met him and even if he or she knew of the parents. The question for the judges was
only the man with whom her mother lived, the how to balance the traditional rights of the fa-
man who was often his or her own natural father. ther under the patrilineal principle with the in-
This law is known as the patrilineal principle. terests of the children. One early attempt to
In later times, when the national courts (as achieve this balance was to name the husband
opposed to the Kuria legal authorities) estab- of the mother the father, but to give custody of
lished jurisdiction over the Kuria people, the law the children to the mother. The mother's hus-
changed. The national courts considered it cruel band also received the right to arrange his
and against the interests of the child to remove children's marriages and to receive the bride-price
the child from the only home he or she had ever paid for his daughters. Still later, the courts said

226
 RIGHTS, HUMAN

that in cases in which women who deserted their focus of worldwide concern. The emergence of
husbands and whose children thus were the prod- human rights and its continuation as a major
uct of unions with other men, the children be- worldwide issue is the result of a number of fac-
longed to the mothers and not to the husbands. tors. These include the genocide and other large-
The law, in attempting to improve the con- scale human rights violations of World War II,
ditions for children in cases in which their moth- the erosion of colonialism, and the demand for
ers have left their husbands, has given rights over rights by indigenous and minority peoples.
the children to the mothers. This has made it The basic definition and framework for the
difficult to preserve the bride-price arrangement subsequent consideration of human rights is con-
for two reasons. First, a man might think that tained in the Universal Declaration of Human
he should not pay a bride-price if he is not go- Rights, adopted and proclaimed by the United
ing to have any rights in the children, because Nations General Assembly as resolution 217 A
his wife might run away and his children would (III) of 10 December 1948. This document, re-
in later life support the wife, and perhaps her printed in full below, establishes as a moral prin-
lover, but not him. Secondly, a man might be ciple that all human beings are entitled to certain
tempted to forgo marriage altogether. He could human rights and freedoms. The Universal Dec-
live with a woman, have children, and then the laration has been followed by numerous other
children would in later life support their mother documents focusing on specific rights or catego-
and, since he is their mother's lover, support him ries of rights pertaining to genocide, protection
as well; in this type of arrangement, the man of war captives and victims, collective bargain-
could acquire all of the benefits of marriage with- ing, prostitution, children, refugees, prisoners,
out having to pay the bride-price. In short, the slavery, marriage, forced labor, racial discrimi-
change in the rights of children in Kuria society nation, cultural rights, political asylum, mental
has had far-reaching effects on the law and on retardation, hunger and malnutrition, disabled
the very basis of Kuria society. persons, religion, and medical care.
Human rights violations involving ethnic
groups are purposeful acts intended to harm both
Rwezaura, Barthazar Aloys. (1985) Traditional individuals who are members of a specific eth-
Family Law and Change in Tanzania: A Study nic group and the group itself. Such violations
of the Kuria Social System. commonly include mass killings, deportations,
rapes, denial of food and housing, torture, de-
tention without due process, destruction of
dwellings and material possessions, and destruc-
tion of cultural, educational, and religious insti-
tutions. When the national government is
Interest in the basic directly involved in ethnic conflict it may be a
RIGHTS, HUMAN rights of individuals goes perpetrator of rights violations while at the same
far back in human his- time render itself unavailable as a protector of
tory; such rights are mentioned in documents rights. Similarily, when ethnic groups use ter-
such as the Old Testament, the Magna Carta, rorism against civilian populations, they too are
and the U.S. Declaration of Independence. guilty of human rights violations.
However, it is only since the end of World War Efforts to apply the concept of human rights to
II that human rights have emerged as a major ethnic groups has produced three controversies

227
RIGHTS, HUMAN

in the international community. The first is vidual members of the group or members of
whether the concept of human rights as set forth other groups who are not eligible for differen-
in the Universal Declaration and subsequent tial treatment. Outsiders sometimes see these
documents applies only to individuals or whether special group rights designed to reverse the ef-
it also applies collectively to groups such as reli- fects of past discrimination as a form of reverse
gious groups, ethnic minority groups, indigenous discrimination. In general, groups that are given
peoples, etc. It is clear from the policy and prac- collective rights tend to be ones with a clear eth-
tice in many nations that, with regard to certain nic identity and membership, who are different
matters, ethnic groups do have a collective, cor- from other groups, and who can be awarded
porate identity. For example, land claims and rights on the basis of objective criteria that also
other rights asserted by Native Americans have can be applied to other groups.
been adjudicated in courts or settled by admin- The third controversy is over the cross-
istrative bodies within the framework of the cultural validity of current conceptions of hu-
group's rights. Similarly, in New Zealand, the man rights, which are seen in some non-Western
Maori right to political representation is a group nations as reflecting Western values and there-
right, not an individual right. However, when it fore as ethnocentric. This ethnocentrism is seen
comes to rights defined as human rights, the by some experts as a hurdle to the universal adop-
question of whether those rights apply only to tion and enforcement of human rights protec-
individuals or also to groups is not clear. Hu- tions. From a cross-cultural perspective, much
man rights advocates argue for the latter view as attention has been focused lately on Islam and
a way of more broadly protecting human rights, Islamic nations and the need to balance univer-
while many national governments adhere to the sal human rights concepts with such Islamic
individual rights only position as a means of practices as the use of amputation as a punish-
defining human rights as an internal matter. ment for crime.
Efforts at applying rights protection to entire
groups has led to many as yet unanswered ques-
tions, such as: What is an ethnic minority? Is UNIVERSAL DECLARATION OF HU-
group size a reasonable criteria for measuring MAN RIGHTS
group existence? Does a group need to be local-
ized to be a group? How does one measure PREAMBLE
group cohesiveness?
The second controversy concerns the issue
Whereas recognition of the inherent dignity
of differentiation versus discrimination that of-
and of the equal and inalienable rights of all
ten arises when one group is afforded some rights members of the human family is the founda-
denied to other groups. The controversy arises tion of freedom, justice and peace in the world,
because in many nations ethnic minority groups
want to be treated differently, often in order to
Whereas disregard and contempt for human
maintain their cultural integrity or to regain
rights have resulted in barbarous acts which
rights lost during times of colonial domination. have outraged the conscience of mankind, and
The question is whether this differential treat- the advent of a world in which human beings
ment of groupsas in affirmative actions pro- shall enjoy freedom of speech and belief and
grams for African-Americans in the United freedom from fear and want has been pro-
States or programs for Untouchables in India claimed as the highest aspiration of the com-
is a form of discrimination, either against indi- mon people,

228
 RIGHTS, HUMAN

Whereas it is essential, if man is not to be com- reason and conscience and should act towards
pelled to have recourse, as a last resort, to rebel- one another in a spirit of brotherhood.
lion against tyranny and oppression, that human
rights should be protected by the rule of law, Article 2
Everyone is entitled to all the rights and free-
Whereas it is essential to promote the devel- doms set forth in this Declaration, without dis-
opment of friendly relations between nations, tinction of any kind, such as race, color, sex,
language, religion, political or other opinion,
Whereas the peoples of the United Nations national or social origin, property, birth or
have in the Charter reaffirmed their faith in other status.
fundamental human rights, in the dignity and
worth of the human person and in the equal Furthermore, no distinction shall be made on
rights of men and women and have determined the basis of the political, jurisdictional or in-
to promote social progress and better standards ternational status of the country or territory
of life in larger freedom, to which a person belongs, whether it be in-
dependent, trust, non-self-governing or un-
Whereas Member States have pledged them- der any other limitation of sovereignty.
selves to achieve, in cooperation with the
United Nations, the promotion of universal Article 3
respect for and observance of human rights Everyone has the right to life, liberty and se-
and fundamental freedoms, curity of person.

Whereas a common understanding of these Article 4

rights and freedoms is of the greatest impor- No one shall be held in slavery or servitude;
tance for the full realization of this pledge, slavery and the slave trade shall be prohibited
in all their forms.
Now, therefore,
Article 5
The General Assembly, No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or
Proclaims this Universal Declaration of Hu- punishment.
man Rights as a common standard of achieve-
ment for all peoples and all nations, to the end Article 6
that every individual and every organ of soci- Everyone has the right to recognition every-
ety, keeping this Declaration constantly in where as a person before the law.
mind, shall strive by teaching and education
to promote respect for these rights and free- Article 7
doms and by progressive measures, national All are equal before the law and are entitled
and international, to secure their universal and without any discrimination to equal protec-
effective recognition and observance, both tion of the law. All are entitled to equal pro-
among the peoples of Member States them- tection against any discrimination in violation
selves and among the peoples of territories of this Declaration and against any incitement
under their jurisdiction. to such discrimination.

Article 1 Article 8
All human beings are born free and equal in Everyone has the right to an effective remedy
dignity and rights. They are endowed with by the competent national tribunals for acts

229
RIGHTS, HUMAN

violating the fundamental rights granted him 2. This right may not be invoked in the case
by the constitution or by law. of prosecutions genuinely arising from non-
political crimes or from acts contrary to the
Article 9 purposes and principles of the United Nations.
No one shall be subjected to arbitrary arrest,
detention or exile. Article 15
1. Everyone has the right to a nationality.
Article 10 2. No one shall be arbitrarily deprived of his
Everyone is entitled in full equality to a fair nationality nor denied the right to change his
and public hearing by an independent and nationality.
impartial tribunal, in the determination of his
rights and obligations and of any criminal Article 16
charge against him. 1. Men and women of full age, without any
limitation due to race, nationality or religion,
Article 11 have the right to marry and to found a family.
1. Everyone charged with a penal offense has They are entitled to equal rights as to mar-
the right to be presumed innocent until proved riage, during marriage and at its dissolution.
guilty according to law in a public trial at which 2. Marriage shall be entered into only with the
he has had all the guarantees necessary for his free and full consent of the intending spouses.
defense. 3. The family is the natural and fundamental
2. No one shall be held guilty of any penal group unit of society and is entitled to protec-
offense on account of any act or omission tion by society and the State.
which did not constitute a penal offense, under
national or international law, at the time when Article 17
it was committed. Nor shall a heavier penalty 1. Everyone has the right to own property
be imposed than the one that was applicable at alone as well as in association with others.
the time the penal offense was committed. 2. No one shall be arbitrarily deprived of his
property.
Article 12
No one shall be subjected to arbitrary inter- Article 18
ference with his privacy, family, home or cor- Everyone has the right to freedom of thought,
respondence, nor to attacks upon his honor conscience and religion; this right includes
and reputation. Everyone has the right to the freedom to change his religion or belief, and
protection of the law against such interference freedom, either alone or in community with
or attacks. others and in public or private, to manifest his
religion or belief in teaching, practice, wor-
Article 13 ship and observance.
1. Everyone has the right to freedom of move-
ment and residence within the borders of each Article 19
State. Everyone has the right to freedom of opinion
2. Everyone has the right to leave any coun- and expression; this right includes freedom to
try, including his own, and to return to his hold opinions without interference and to seek,
country. receive and impart information and ideas
through any media and regardless of frontiers.
Article 14
1. Everyone has the right to seek and to enjoy Article 20
in other countries asylum from persecution. 1. Everyone has the right to freedom of peace-

230
 RIGHTS, HUMAN

fill assembly and association. Article 25

2. No one may be compelled to belong to an 1. Everyone has the right to a standard of liv-
association. ing adequate for the health and well-being of
himself and of his family, including food,
Article 21 clothing, housing and medical care and nec-
1. Everyone has the right to take part in the essary social services, and the right to security
government of his country, directly or through in the event of unemployment, sickness, dis-
freely chosen representatives. ability, widowhood, old age or other lack of
2. Everyone has the right to equal access to livelihood in circumstances beyond his control.
public service in his country. 2. Motherhood and childhood are entitled to
3. The will of the people shall be the basis of special care and assistance. All children,
the authority of government: this will shall be whether born in or out of wedlock, shall enjoy
expressed in periodic and genuine elections the same social protection.
which shall be by universal and equal suffrage
and shall be held by secret vote or by equiva- Article 26
lent free voting procedures. 1. Everyone has the right to education. Edu-
cation shall be free, at least in the elementary
Article 22 and fundamental stages. Elementary educa-
Everyone, as a member of society, has the right tion shall be compulsory. Technical and pro-
to social security and is entitled to realization, fessional education shall be made generally
through national effort and international co- available and higher education shall be equally
operation and in accordance with the organi- accessible to all on the basis of merit.
zation and resources of each State, of the 2. Education shall be directed to the full de-
economic, social and cultural rights indispens- velopment of the human personality and to
able for his dignity and the free development the strengthening of respect for human rights
of his personality. and fundamental freedoms. It shall promote
understanding, tolerance and friendship
Article 23 among all nations, racial or religious groups,
1. Everyone has the right to work, to free and shall further the activities of the United
choice of employment, to just and favorable Nations for the maintenance of peace.
conditions of work and to protection against 3. Parents have a prior right to choose the
unemployment. kind of education that shall be given to their
2. Everyone, without any discrimination, has children.
the right to equal pay for equal work.
3. Everyone who works has the right to just Article 27
and favorable remuneration ensuring for him- 1. Everyone has the right freely to participate
self and his family an existence worthy of hu- in the cultural life of the community, to enjoy
man dignity, and supplemented, if necessary, the arts and to share in scientific advancement
by other means of social protection. and its benefits.
4. Everyone has the right to form and to 2. Everyone has the right to the protection of
join trade unions for the protection of his the moral and material interests resulting from
interests. any scientific, literary or artistic production of
which he is the author.
Article 24
Everyone has the right to rest and leisure, in- Article 28
cluding reasonable limitation of working hours Everyone is entitled to a social and interna-
and periodic holidays with pay. tional order in which the rights and freedoms

231
RIVALRY

set forth in this Declaration can be fully Stavenhagen, Rodolfo. (1987) "Ethnic Conflict
realized. and Human Rights: Their Interrelationship."
Bulletin of Peace Proposals 18: 507-514.
Article 29
1. Everyone has duties to the community in
Van Dyke, Vernon. (1985) Human Rights, Eth-
which alone the free and full development of nicity, and Discrimination.
his personality is possible. Whalen, Lucille. (1989) Human Rights: A Ref-
2. In the exercise of his rights and freedoms, erence Handbook.
everyone shall be subject only to such limita-
tions as are determined by law solely for the
purpose of securing due recognition and re-
spect for the rights and freedoms of others and
of meeting the just requirements of morality,
public order and the general welfare in a demo- A rivalry is a state of
cratic society. RIVALRY competition between
3. These rights and freedoms may in no case two individuals or
be exercised contrary to the purposes and prin- groups, and is usually long-standing. Among
ciples of the United Nations. the various men's clubs of the Crow Indians, ri-
valries could become fierce. The clubs were of-
Article 30 ten paired in rivalrous activities and were always
Nothing in this Declaration may be inter-
trying to best each other. One of these was brav-
preted as implying for any State, group or per-
son any right to engage in any activity or to
ery in battle, in which each side tried to beat the
perform any act aimed at the destruction of other in counting coup (being the first to be able
any of the rights and freedoms set forth herein. to go up to an enemy and touch him, often with
a special coup stick). Counting coup was very
dangerous, because while you were trying to
See also INTERNATIONAL LAW touch the enemy, he and all of his compatriots
were usually trying to kill you. If a club was the
first to count coup, it could sing the songs of the
An-Na'im, Abdullahi A., ed. (1992) Human club with whom it had a rivalry; otherwise, this
Rights in Cross-Cultural Perspective: A Quest stealing of songs was not allowed. The rivalry
for Consensus. helped to make the clubs competing with each
Brownlie, Ian. (1992) Basic Documents on Hu- other very brave, as in the following case.
man Rights. One of the men's societies known as the Fox
club was in rivalry with another known as the
Felice, William. (1992) The Emergence of Peoples' Lumpwood club. As they were approaching the
Rights in International Relations. enemy in battle one day, a Fox man snuck up
Heinz, Wolfgang S. (1991) Indigenous Popula- some distance in the direction of the enemy with
tions, Ethnic Minorities and Human Rights. the Fox's coup stick, and then stopped. A
Lumpwood man went up to him and asked him
Lawson, Edward, ed. (1991) Encyclopedia of
if he was going to count coup. The Fox man re-
Human Rights.
plied that he was afraid to go. The Lumpwood
Ramaga, Philip V. (1993) "The Group Concept man then took the Fox coup stick, used it to
in Minority Protection." Human Rights touch an enemy, and then ran back part of the
Quarterly 15: 575-588. way and put the coup stick in the ground be-

232
 RIVALRY

tween the two enemy parties. He dared the Fox Crow men's club rivalries were restricted to
men to get their own coup stick back, but none the warm seasons; the rest of the time the mem-
would. In order to humiliate the Foxes further, bers of the clubs were friendly and helpful to-
the Lumpwoods claimed the right to sing the ward each other.
Fox's songs that night, and the Foxes had to bor-
row songs from other clubs so that they would
have something to sing. Lowie, Robert H. (1956 [1935]) The Crow Indians.

233
 seen by the kin of the offender as unjustified, so
the killing often brings about a feud.

S Barton, Roy F. (1969 [1919]) Ifugao Law.

Pospisil, Leopold. (1974 [1971]) Anthropology
of Law: A Comparative Theory.

SKGMKMTARY
LINKACI:
The segmentary lineage
system is a social and
political form of organi-
zation in which a person
belongs to a number of related descent groups
that telescope from an apical ancestor and that
have different functions in different social situ-
Sanction is one of the ations. The segmentary lineage system is orga-
SANCTION four attributes of law. nized vertically in levels of greater and greater
That is, sanction must inclusion. The segmentary lineage system is
be present for law to exist. A sanction is either a common in parts of Africa and the Middle East.
negative device that withdraws rewards or fa- It functions most often in times of conflict, as
vors that otherwise (if the law had not been vio- may be seen in the following common Bedouin
lated) would have been granted, or a positive (Arab) saying, "Myself against my brother; my
measure that inflicts some painful physical or brother and I against my cousin; my cousin, my
psychological experience. brother, and I against the outsider" (Murphy and
The Ifugao people of the Philippines pri- Kasdan 1959: 20).
marily use fines as sanctions, even in cases of Segmentation occurs within the lineage.
murder. However, unlike our own system in Suppose there are three brothers in a patrilineal
which the offender is forced to pay the fine by society, named A, B, and C. Each one has male
the court system and by law enforcement per- children, and they in turn have male children
sonnel, the Ifugao place the burden of forcing themselves, and so on. Suppose that after five
payment on the injured party who is to receive generations, the great-great-grandchildren and
the fine (among the Ifugao, fines are paid to the the great-great-great-grandchildren decide that
directly injured parties and not to the people of they wish to be in separate groups from each
the society as a whole). The party due to receive other, due to conflicts. They might make seg-
the payment must vigorously pursue it, not ments based upon the brothers A, B, and C. For
merely ask for it. The offender, on the other instance, all of the descendants of A make up
hand, has a very good reason to pay the fine; if one segment, all of the descendants of B make
he does not, he may be lawfully killed by the up another, and all of the descendants of C make
one due the payment of the fine. However, kill- up another. The same thing will happen to the
ing an offender who has not paid a fine is often descendants of the great-great-great-grandsons

235
SEGMENTARY LINEAGE

of these descendants in another five generations unity is often achieved by the tribe having a
or so, and this principle will continue to be ap- dominant or leading lineage. This lineage would
plied in perpetuity. However, segmentation is provide the leaders of the communities and
not the same as fission. Fission, which often would also create a core around which the rest
occurs with lineages of hunting and gathering of the tribe could be organized. Since the mem-
peoples, makes two or more new groups out of bers of this lineage would be found in all com-
one, but the old group ceases to exist. With seg- munities, they could rally all the members of the
mentation, the old group can still come into form tribe behind them in action. Such is the case
and action as a group when circumstances call among the Nuer and the Lugbara. Among the
for it. For example, if a descendant of A got into Mandari, the Bora lineage supplies the tribe's
a fight with a descendant of As first cousin, then several chiefs.
all of the descendants of As father (all of the The most important aspect of segmentary
descendants of A, B, and C) would unite to sup- systems, from a political perspective, is that so-
port the descendant of A against the other man. cieties so organized have no central leadership
Among societies with segmentary lineages, and authority. They are able to unite all or part
lineage segments usually only run three or four of the society to face a common threat, but have
generations deep. In some segmentary lineage no ability to unite under a single leadership and
societies such as the Amba of western Uganda, no way to keep the segments permanently united.
all or nearly all of the members of a lineage seg- There appear to be three major types of so-
ment can be found within one local group. In cial organization in segmentary lineage socie-
other societies, such as the Lugbara of the West ties. In societies of the first type, exemplified by
Nile district of Uganda, the Dinka of the south- societies such as the Nuer and the Lugbara, so-
ern Sudan, and the Mandari, also of the south- cial unity is created by the belief in a single large
ern Sudan, members of lineage segments were genealogy that unites the entire tribe. Despite
frequently dispersed among a number of local the fact that there are many segments, Nuer
settlement groups. people, for example, still consider themselves and
Segments come together to the degree that all other Nuer members part of a single lineage
the interests of the members of each segment descended from one man. Thus, the number of
are affected. In some societies, it is possible to people who can be united for political or mili-
unite all members of a language group or "tribe," tary action is larger than can be assembled in
as it may be called. For example, under tradi- societies of the types discussed below.
tional circumstances, all of the speakers of Dinka A second way in which social unity may be
could come together into one politically united created in segmentary lineage societies can be
group for some particular action that affected seen in the examples of the Konkomba, Amba,
the entire Dinka tribe. The same is true of the and Tallensi societies. In these societies, there is
Lugbara, the Nuer of the Sudan, and the Kon- no large single lineage to which all other mem-
komba of Togo. However, among the Mandari, bers of the tribe belong. Rather, social unity is
the largest group that could become politically created by each segment having ritual obliga-
united was the chiefdom. For the Amba, no groups tions toward other segments and by intermarry-
larger than exogamous clusters could unite, and ing with them. Typically, lineages are exogamous,
among the Tiv of Nigeria, it is maximally only a thus increasing the ties with other lineages.
lineage of eight or ten generations in depth. There are very few examples of chiefs within this
When the lineages are dispersed in many type of society, and whatever authorities and
different localities, partial or complete tribal leaders there are have relatively little power.

236
 SELF-REDRESS

The third means by which a society with ery male is involved in the fighting who is a de-
segmentary lineages may create social unity is scendant of the two linking sons to the first com-
to unite within territorial sections of the tribe's mon ancestor reckoned genealogically from the
entire region. Thus, there are numerous united disputants upward. In other words, let us say that
small groups, but no unity at the tribal level, even there were three brothers, A, B, and C, sons of
though members of lineages are dispersed over D. Four generations later, a great-grandson of
a wide geographic area. An example of this type A has a serious dispute with a great-grandson of
of social organization is seen in Dinka society. B. If there was to be a war, all of the men de-
Societies with this type of organization fre- scendants of A would be involved in a war with
quently have chiefs as the leaders of each of these all of the men descendants of B. The men de-
territorially based groups. scendants of C would not be involved except
I will use the example of the Tiv people to possibly as peacemakers. On the other hand, if
illustrate some salient aspects of the segmentary man descendant of E, D's brother, had a dispute
lineage system as found among the members of with a man descendant of D, all of the men de-
that society. The members of Tiv society all con- scendants of D (all of the men descendants of
sider themselves descendants of a man called Tiv A, B, and C) would be involved in fighting
because they belong to Tiv's lineage. It is not against all of the men descendants of E.
true that a modern-day Tiv person could trace
each link in his or her genealogy to Tiv himself,
but he or she could name the segments in the Bohannon, Laura. (1958) "Political Aspects of
overall Tiv lineage and describe where his or her Tiv Social Organization." In Tribes without
segment fits into the entire descent group. Rulers, edited by John Middleton and David
Each division in the lineage is known to the Tait, 33-66.
Tiv as nongo ("line" or "queue"). Thus, the three
Fortes, Meyer. (1953) "The Structure of
children of a man, if they have many descen-
Unilineal Descent Groups." American An-
dants, may sometime in the future each be the
thropologist^'. 17-41.
beginner of a nongo. A nongo typically refers, how-
ever, to the living members of a line of descent. Middleton, John, and David Tait. (1958) "In-
The Tiv make a distinction between lines troduction." In Tribes without Rulers, edited
of descent and actual patrilineal descent groups, by John Middleton and David Tait, 131.
which they call ityo. In addition to a mans own Murphy, Robert F, and Leonard Kasdan. (1959)
itydy those of his mother, his father's mother, his "The Structure of Parallel Cousin Marriage."
father's father's mother, and his mother's American Anthropologist 61: 17-29.
mother's were important to him, especially since
he was protected when he was among any of
these other ityosy which are called igbas.
The Tiv lineages are divided into segments,
which are known as ipaven. Each ipaven lives Self-redress, also known
by itself on a tar, a particular piece of land on Si:u;-Ri:i)ki:ss as self-help, is the pro-
which live no people oustide of the ipaven. cess whereby one who
The ipaven functions in times of war be- has been wronged rights, or redresses, the wrong
tween Tiv groups. A man will be involved in a through personal action, without making use of
fight if he belongs to the ipaven of a man who the law. For example, if a man steals a shovel, the
has a dispute with a man of another ipaven. Ev- owner of the shovel may engage in self-redress

237
SELF-REDRESS

by simply going to the thief's residence and re- It is only in cases involving people outside
possessing the shovel. Self-redress is extralegal of one s security circle that self-redress comes
behavior, although a legal authority may deter- into play. Normally, when there is a dispute, there
mine that a particular act of self-redress is legal are accepted ways in which one can retaliate, and
after the fact, according to the laws of that soci- accepted degrees of severity of retaliation. If
ety at that particular time. In our legal and po- someone defrauds another in a pig exchange, the
litical system, certain kinds of self-redress are culprit either pays what he owes or, if he attempts
permitted, although they are discouraged be- to escape without paying, the one defrauded may
cause of the potential for the dispute to become initiate a fight or a blood feud or use sorcery.
violent; use of the legal system is preferred. The outcome of many cases in which the culprit
Among the Garia people of New Guinea, does not agree to make amends voluntarily is
there are not many legal institutions, and none that the culprit and the one seeking self-redress
that are effective, so many disputes lead to self- begin a feud as a result of their disagreement. If
redress because there is no other way to resolve someone who has been wronged seeks self-
them. Unfortunately, self-redress often results redress, and in the process starts a feud with the
in fighting and bloodshed. The way in which culprit, he may expect members of his security
the Garia people keep these disputes from erupt- circle to come to his aid. However, it is often
ing into more serious disputes is somewhat com- the case that many members of the plaintiff's
plicated. A Garia individual is connected to other security circle are also members of the culprit's
members of society through a variety of social security circle. Such people cannot take one side
relationships, including his or her kindred (close or the other, since they are obligated to both
kin on both the father's side or the mother's side), sides. Instead, they try to act as peacemakers,
his or her patrilineal descent group, his or her because they do not want to see any member of
affines (kin by marriage), as well as bush broth- their own security circle injured or killed. Fre-
ers (people whose land borders his), trading part- quently, the number of people who can commit
ners, and, for men, other men with whom one wholeheartedly to one party or the other, that
went through age-grade initiations. These people is, people who have one of the parties in their
together are called by the ethnologist Lawrence own security circle but not the other, are very
(1973 [1971]: 76) a security circle. Towards these few, and so the feud does not become too large.
people, correct behavior must be observed, be- Thus, the security circle of people that surround
cause their proper behavior in return is very im- a Garia individual works not only to protect the
portant. People within the security circle have individual in case of a fight or a feud but also
reciprocal obligations to each other, and when helps to keep down the level of violence in Garia
one does not fulfill his obligations to others, one society as a whole.
does not in turn receive the help one needs from Among the Micmac Indians of Nova Scotia,
them. Within the security circle, morality shapes self-redress is the preferred means of handling
one's behavior, and any individual who does not most types of disputes, even though they have,
observe morally correct behavior should, if he and have long had, an adequate legal system. The
or she has been properly socialized as a youth, reason for this seemingly strange preference lies
feel shame. Lawrence calls the effect of moral- in the Micmac's placing a highly positive value
ity and shame self-regulation (1973 [1971]: 82). on equality and self-reliance. To use a legal au-
Self-regulation applies only to the people in one s thority to solve a dispute requires the use of a
own security circle. person of authority, and the idea of another per-

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 SELF-REDRESS

son having authority over one is not one that from which they would converse with each other
appeals to many Micmac. Rather, it is ideal to while eating. One fellow had a nasty habit of
take care of one's own problems. To call upon a pretending to approach a colleague to converse
legal authority makes one look weak, as if one is with him, then burying his axe blade in a stump
incapable of handling problems. Also, to use a nearby so that the two might talk. It just so hap-
legal authority is considered vindictive. It is as if pened that the stump into which he buried his
one wishes to increase the sanction the other axe blade was the same stump on which the other
party in the dispute will have to bear. It also fellow had placed his gloves, which the culprit
makes the party asking for legal help appear that had pretended not to see. The result was that
he or she is trying to "gang up" on the other party many workers had had their gloves ruined by
by enlisting the aid of others. The Micmac value this man. After this went on for a while, one
people who handle their disputes without in- man decided to stop the culprit through self-
volving others. redress. He bought some new gloves and some
The use of self-redress almost never leads large nails. When the time for the lunch break
to a feud or an enlarged or intensified dispute. came, he took his gloves and inserted into each
This is because the culprit is already known and of the fingers one of the nails, and put them
the problem is being discussed throughout the down on the stump next to him. The culprit saw
community, which will result in ostracism. the new gloves and could not resist the tempta-
Should the culprit resist or attempt to fight the tion that they presented. He walked over and
person coming to redress the wrong, it will ap- swung the axe at the gloves, but to his surprise,
pear that the culprit is committing a second and the axe bounced back from the gloves. The nails
more serious offense, which will result in greater also made a number of deep nicks in the axe's
ostracism and perhaps violence by other mem- blade, which took the culprit a long time to re-
bers of the community. move by filing. Needless to say, the glove axing
In Micmac society, self-redress is ideally stopped.
undertaken with cleverness and humor. If one The following legal decision, from India,
takes self-redress in such a way as to make the answers the question as to those circumstances
other party look foolish, then the other people under which self-redress is legal in a fight in
in the group will always remember what hap- which both parties come to the fight armed for
pened, and the effect will be to remind that per- conflict (General Index of the Indian Law Reports,
son of his or her misdeed and thus less likely to Allahabad Series, 1949:258-278).
continue a pattern of offensive behavior. The
following case exemplifies an ideal method of APPELLATE CRIMINAL.
self-redress.
In the 1940s, the federal government was Before Mr. Justice Agarwala
building a great many new houses on a Micmac PARASRAM and Another v. REX.
reserve. It employed many Micmac men in the Self-defenseRight ofWhen obtained and
by whomIf both parties come armed with
forest, cutting trees to supply the lumber needed.
weapons
The men were still using axes in those days.
When the men took a break to eat their lunches, Indian Penal Code ss. 323, 304.
they frequently put their gloves down on one
stump, buried the blades of their axes on an- Even when both the parties to a conflict come
other stump, and sat down on a third stump, armed with lathis, if there be no evidence to

239
SELF-REDRESS

show that they had made any pre-arranged platform of the house of the accused. There
plan of fighting out the dispute by force that was a long standing dispute as to the owner-
day, the party that attempted to strike the first ship of the cattle trough between the accused
blow must be deemed to be the aggressor, and and the deceased. On the 14th of June, 1947,
the other party, if obviously in danger of an there was a quarrel over this trough between
injury to the persons of its members, has a right Munnalal deceased on the one hand and the
to strike in self-defense. accused and one Ramdin on the other, which
resulted in a fight. The accused and Ramdin
Case law discussed and certain propositions gave lathi blows to the deceased as a result of
of law deduced therefrom. Queen Empress v. which his skull was fractured and he died.
PragDaf(l), King Emperor v. Kaliji (2), Queen The defense was that there was a quarrel
Empress v. NarsangPathabhai (3)y Maniruddin between Parasram accused and Munnalal over
v. Emperor (4)y Qinn v. Leathern (5), Punjab the cattle trough; that Munnalal was the ag-
Co-operative Bank Ltd. v. Commissioner of In- gressor and gave him a lathi [stick] blow first
come tax (6)y Hariram Mahatha v. Emperor (7), with the result that he fell down and became
Summa Behera v. Emperor (8), referred to. unconscious; that when Basant, the second
accused, wanted to protect his father and raised
Criminal Appeal No. 57 of 1948, from an his lathi with that object, then Pashpati and
order of C. B. Lai Mathur, First Additional Shankar, on the side of Munnalal, and
Sessions Judge of Budaun dated the 27th Munnalal himself gave him lathi blows. In self
of January 1948. The facts appear in the defense Basant struck lathi blows on Munnalal
judgment. who fell down and became unconscious.
The medical report showed that
Roop Kishor Srivastava for the appellants. Munnalal had received five injuries: (1) con-
tused wound on the right side of the head; (2)
/ S. David, holding the brief of the Assistant contusion just above the right ear; (3) contu-
Government Advocate (D. P. Uniyal) for the sion, left side of the head near tuft of hair; (4)
Crown. contusion with abrasion, right upper arm; and
(5) swelling on left ankle joint. Cause of death
Agarwala, J. Parasram alls Har Prasad, was extensive fracture of skull caused by in-
and Basant were prosecuted under section 304 jury No. 1. Basant accused had received two
Indian Penal Code, read with section 34 In- injuries; (1) contused wound on the top of
dian Penal Code, for having caused the death headsize 1 V2W x V/ x skin deep; and (2)
of one Munnalal. They have been convicted painful defused swelling on back of lower third
of the offence with which they were charged right forearm.
and sentenced to ten years rigorous imprison- The prosecution could produce only one
ment. They have come up in appeal to this eye-witness of the occurrence. He was Tara.
Court. Four others were examined in the court of the
The prosecution case was that the ac- Committing Magistrate as eye-witnesses but
cused, who are father and son, were neighbors they denied that they had seen the occurrence.
of Munnalal residing in village Chitora in the They were, therefore, not examined by the
district of Budaun. They were relations of each prosecution in the Sessions Court. Now Tara
other and had descended from a common an- said that on hearing a noise he had gone to
cestor. Their houses were adjacent to each the place of occurrence; that on reaching there
other. There was a cattle trough in front of he heard hot words being exchanged between
the house and baithak of the deceased Munnalal on one side and the accused on the
Munnalal. This cattle trough adjoined the other; that it was Munnalal who wielded his

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 SELF-REDRESS

lathi first and then the accused used his lathi that there was a pre-arranged plan or prepa-
in return; and that the deceased received a lathi ration to fight, it could not be said that the
blow from Basant accused. From this state- intention of the parties was to decide the ques-
ment it is quite clear that it was Munnalal who tion of ownership of the cattle trough by an
was the aggressor because he struck the first armed fight.
blow without the accused having assaulted him The question, however, is of some impor-
or having threatened to assault him. The tance and I think I should deal with it at
learned Sessions Judge, however, says thatTara length, especially when the view expressed by
appears to have stated about the deceased hav- the learned Sessions Judge finds support from
ing used his lathi first only to save the accused the observations made in some of the reported
from punishment and to give them an oppor- cases.
tunity to plead the right of private defense. In Queen v. Nawabdee (1), the facts were
The learned Sessions Judge did not believe this that prisoners 93 and 94 having reason to ap-
part of the statement of the witness and held prehend an attack, stood outside their house.
that no occasion for the exercise of the right Presently the attacking party came, then words
of self-defense arose. I have no reason to think arose, and then blows followed on both sides.
that the witness was not telling the truth when Steer, J. held that the accused courted the at-
he stated that Munnalal was the first to strike. tack, and instead of sitting within doors when,
The learned Sessions Judge then goes on to if their house had been attacked they would
say that if this statement be taken to be true, have had a right of defense, they went out-
even then the accused had no right of self- side, and met the assailants, and that, there-
defense. According to him "when two parties fore, they were guilty. With all respect to the
are armed with lathis for a fight to enforce their learned Judge, I have grave doubts as to the
supposed ownership over a property it does soundness of the decision. It is not only when
not matter which party attacks first and right the property of a person is actually attacked
of private defense also does not arise in such that he is invested with right of self-defense.
cases. It is quite evident that both the accused If there is an attempt or threat to attack the
were armed with lathis from before starting property, then also there is a right of self-
the fight. They must have, therefore, come defense. There is nothing wrong if the party
there with the intention of fighting and can- threatened to try to prevent the threat materi-
not be given the benefit of the right of private alizing and to meet the attack by standing in
defense simply because the deceased wielded such a position that no harm be inflicted on
his lathi first." The learned Sessions Judge is the property. In the case before Steer, J. the
right in saying that both the accused were accused were perfectly entitled, to my mind,
armed with lathis from before starting the to stand outside their house to prevent any
fight, but there is no evidence on the record harm being caused to their house.
to show that the parties had made any pre- In Queen Empress v. Prag Daf(T) there
arranged plan of fighting out the dispute that was a dispute between the Thakurs and
day or had made any preparations to that end Chaubeys of Madhonagar over a strip of
from before the start of the fight. It appears waste-land. The Chaubeys asserted that the
that there was a quarrel as usual over the cattle land appertained to a grove which admittedly
trough. In the absence of any evidence it can- belonged to them, but the Thakurs on the
not be said that the parties came out of their other hand maintained that the disputed land
houses with the intention of fighting. It is quite was part of their cultivation, which as a fact
possible that the quarrel started all of a sud- did adjoin it. It was found that on the day of
den on some hot words or abuse being ex- occurrence theThakur party consisted of from
changed. In the absence of evidence to show 30 to 50 men, and that one of that party had a

241
SELF-REDRESS

gun and the others had lathis. On the other firstlyRobbery;

side were arrayed the seven accused; one of
them carried a gun; others had nothing in their secondlyHouse breaking by right;
hands except perhaps sticks. The Thakurs gave
thirdlyMischief by fire committed on
orders for the demolition of a mud-wall. Upon
any building, tent, vessel, which build-
this the Chaubeys interfered and begged that
ing, tent or vessel is used as a human
the matter be referred to court. Words ensued
dwelling, or as a place for the custody of
and then blows, and almost immediately Laltu
property;
fired at Ajudhia on the Thakur side and shot
him dead on the spot. Upon this all ran away. fourthlyTheft, mischief or house tres-
CHIEF JUSTICE KERSHAW and Mr. Jus- pass, under such circumstances as may
tice KNOX observed: "The use of force in reasonably cause apprehension that death
defense of property by private individuals is a or grievous hurt will be the consequence,
matter defined by law. The presence of Laltu if such right of private defense is not ex-
with his gun, unexplained as it is by any evi- ercised."
dence for the defense, proves that the
Chaubeys were prepared to defend this mud-
wall even to the voluntarily causing of death; The facts of that case did not show that
and the burden lay heavily upon them of prov- any of the offences mentioned in section 103,
ing that they acted under reasonable appre- Indian Penal Code, were attempted or threat-
hension that death or serious hurt would be ened to be committed by the Thakurs and,
the consequence if the right of private defense therefore, the Chaubeys had no right to cause
were not exercised. The harm intended was death. The Chaubeys were rightly held guilty
so light that persons of ordinary sense and tem- of murder, their case not being covered by ex-
per would have and should have refrained from ception 2 to section 300 Indian Penal Code,
taking the law into their own hands. . . . The inasmuch as they had intended to do more
fact that 40 or 50 persons began the attack harm than was necessary for the purpose of
and that after the attack began, Laltu fired a defense. Their lordships, however, went on to
shot which struck Ajudhia is not enough to quote from a passage from the unreported
show that Laltu was justified in firing. Laltu judgment of SIR JOHN EDGE in Queen-
had to prove that he had reason to apprehend Empress v. Rupa (1) that "when a body of men
that the Brahmins might be killed. He gave are determined to vindicate their rights or sup-
no evidence of this, or of facts from which we posed rights, by unlawful force, and when they
could hold it proved." As in that case death engage in a fight with men who, on the other
was caused by firing the action could be justi- hand, are equally determined to vindicate by
fied only if the case fell within the purview of unlawful force their right or supposed rights,
section 103 Indian Penal Code. That section no question of self-defense arises. Neither side
runs as follows: is trying to protect itself, but each side is try-
ing to get the better of the other." As the case
"The right of private defense of prop- of Queen-Empress v. Rupa (1) has not been re-
erty extends, under the restrictions men- ported I cannot say what its facts were. The
tioned in section 99, to the voluntarily proposition of law, as stated by SIR JOHN
causing of death or of any other harm to EDGE, is of course unquestionable. The im-
the wrong-doer, if the offence the com- portant words in that dictum are 'Neither side
mitting of which, or the attempting to is trying to protect itself, but each side is try-
commit of which, occasions the exercise ing to get the better of the other/The enquiry,
of the right, be an offence of any of the therefore, in every case has to be whether the
descriptions hereinafter enumerated, accused were trying to protect themselves or
namely: their property, or whether they were trying to

242
 SERVITUDE

get the better of the other side and enforce a permission. If her husband had mistreated her,
supposed right by use offeree. and especially if he had failed to support her
materially, a wife could pawn her child without
her husband's permission so as to acquire money
General Index of the Indian Law Reports, to support herself. A boy could pawn his younger
Allahabad Series. (1949). brother with the consent of both parents and
Lawrence, Peter. (1973 [1971]) "The Garia of the younger brother to be pawned. Child pawns
the Madang District." In Politics in New had no right to work for themselves to end their
Guinea, edited by Ronald Berndt and Peter servitude; the payment of the debt was the respon-
Lawrence, 74-93. sibility of their parent(s) or sibling. Child pawns
generally lived most of the time with the credi-
Strouthes, Daniel P. (1994) Change in the Real
tor, who had the responsibility of feeding them.
Property Law of a Cape Breton Island Micmac
The Yoruba person who pawned him or her-
Band.
self could not do so without providing a surety,
a person who promised to pay to the creditor
the amount of the debt should the debtor fail to
do so. The debtor paid the surety a small sum
Servitude is a legal duty called egba, and by accepting this sum the surety
SERVITUDE to give one's labor to an- agreed to act as a surety.
other person, who then A Yoruba creditor who had sexual inter-
has the right to the value of that labor. Servi- course with a woman who had pawned herself
tude may be voluntary or involuntary. In the to him was treated differently by the law depend-
United States, servitude is prohibited by the thir- ing upon whether she was married or betrothed
teenth amendment to the constitution. to another man or was unmarried. If she was
An interesting type of servitude was once married or betrothed, the creditor had to pay
practiced by the Yoruba people of Nigeria. In the penalties that any man who seduced a mar-
that society, a person could pawn himself or her- ried or betrothed woman paid, and in addition
self, that is, use himself or herself as security for was no longer able to collect the debt the woman
a loan. The person pawned was then legally owed him. If the woman was unmarried, he
bound in servitude to the creditor. The debtor would not face prosecution, but again was un-
would have seventeen days after initiating the able to collect the debt under the law. On the
pawn to deliver himself or herself to the credi- other hand, if the unmarried woman was agree-
tor to begin work. The work the debtor per- able, the two could marry, in which case the
formed for the creditor did not reduce the creditor did not have to pay a bride-price.
amount of the debt owed, but rather constituted Another form of servitude was found in the
the interest on the loan. For each day that an Spanish parts of the Americas, including parts
adult debtor worked for the creditor, he or she of the United States that were once under Span-
was allowed by law one day to work for himself ish control. This form of servitude is known as
or herself to earn money to repay the debt and peonage. A peon is someone who was legally
to end the period of servitude, which extended bound to provide another person with labor in
until the debt was paid. order to pay a debt. In central and southern
People were also able to pawn others within Mexico, from the time of Mexico's war for in-
their family. A woman could pawn her child. dependence in 1823 until the Mexican Revolu-
However, unless her husband had mistreated her, tion in 1910, a particularly dark form of peonage
she could only pawn the child with her husband's was once practiced. In this form, called the
243
SERVITUS

hacienda system, an individual would receive Forced labor refers to a situation where in-
ownership of a piece of land from the central dividuals are coerced into working, often in con-
government. There were, of course, people al- ditions that are unsafe and usually for low wages.
ready living on the land, often Indians, who had Recent examples of forced labor include the use
no other place to go, since most of central and of Brazilian Indians in forestry, mining, rubber
southern Mexico was even then densely popu- tapping, and prostitution; forced prostitution in
lated. Under Mexican law, the original inhabi- Turkey; Haitian sugarcane workers in the Do-
tants had no ownership rights to the land. In minican Republic; prisoner labor in the People s
order to be able to remain on the land, the price Republic of China; and Peruvian and Salvador-
of the rent was to labor for the owner of the land ian domestic laborers in the United States. The
in whatever manner the owner determined and latter are individuals who are in the United States
under whatever conditions he dictated. Another illegally and thus are sometimes exploited by
form of peonage developed later. Whereas the their employers, who pay them low wages and
hacienda system allowed people to leave the ha- make them work long hours, knowing that as
ciendas legally whenever they chose, the new illegals they have less recourse to judicial and
system of debt peonage kept most bound to the administrative protection than legal immigrants
hacienda. The haciendas would operate small or citizens.
stores from which the people who lived there
could buy what they needed on credit. As long Ajisafe, A. K. (1946) The Laws and Customs of
as there was a debt outstanding, they were bound the Yoruba People.
bylaw to remain on the hacienda; of course, they
Spicer, Edward H. (1980) TheYaquis:A Cultural
had no choice but to work there, since there was
History.
no other employment available by which they
could pay their debts. Debt peonage was insti-
tuted for two reasons. The first was to keep ag-
ricultural labor available, since many people were
tempted to move to the cities to seek better pay- A servitus is a legal re-
ing work there. The second reason was to pre- SI:RVITUS striction, such as a cov-
vent Indians from leaving the haciendas and enant, on the use of land
living together with other Indians, thereby pre- and other real property. It is a burden on the
venting their acculturation and assimilation. interests of the owner or lessor and is applicable
In some nations, peonage obligation is to those who lease the property or subsequently
passed on to children. In India alone, there are own the property. Some kinds of servitus are
an estimated 6.5 million people living in debt known as equitable servitudes. Servitus is a part
bondage. In India, the situation was created in of the law of real property.
part by the absence of bankruptcy laws, which One example of servitus is a covenant that a
made it necessary for people to place themselves certain part of a parcel of land will never be
in debt bondage in order to repay their debts. logged. Covenants are created by the owner and
Although debt bondage was banned by law in "run with the land," as attorneys state it. That
1976, the practice continues in many rural re- is, they come with a parcel of land and apply to
gions. Debt bondage is common throughout all future owners no matter who they happen to be
of south Asia and is found in Pakistan, Nepal, or when they happen to own the real property.
and Bangladesh as well as India. Most of those Owners normally do not like to create covenants
in debt bondage perform agricultural work. because they are a burden on the use of the prop-

244
 SLAVERY

erty by future owners and usually reduce the ment of the New World. Slavery, primarily in
property's value when sold. the forms of both domestic and productive sla-
Another type of servitus is a right-of-way, very, was also common in non-Western, nonin-
which is an easement to travel over the land of dustrialized societies.
another. An example of this is a right-of-way From a historical and cross-cultural perspec-
for a railroad track. Under U.S. law, such a right- tive, slavery comes in two primary forms, do-
of-way normally ceases to exist once the railway mestic and productive. In Islamic societies,
ceases to use the line. slavery took yet another form. And, as discussed
Among the Yoruba people of Nigeria, the below, slavery or related institutions are still com-
law recognizes a number of types of servitus, mon around the world, and the long-term ef-
though most relate to rights of access. If a man fects of productive slavery are still being
owns a farm in one place, but it is surrounded experienced by the descendants of slaves.
by the farms of others, the man has a right to
cross from the road, across the farm of another, Domestic Slavery
to get to his own farm. Similarly, if a body of Domestic slavery (also known as household and
water is a source of drinking water, the owners patriarchal slavery) was a form of slavery found
of land adjoining the body of water must allow in small-scale, nonindustrial societies whose
the public to cross their lands to get to the body economies were based on horticulture or simple
of water. Finally, those people who own land ad- agriculture. According to two worldwide surveys
joining bodies of water that are used as sources of slavery with samples of 186 and 60 nonin-
of drinking water are prevented by law from dustrial societies respectively, domestic slavery
clearing vegetation within fifty yards of the occurred in 35 percent of societies. The label
water's edge, so as to reduce the likelihood of domestic indicates that slaves in these societies
the body of water running dry. performed mostly household work, including
gardening, child care, wood and water fetching,
Ajisafe, A. K. (1946) The Laws and Customs of and concubinage. In many societies, however,
the Yoruba People. they also performed chores outside the house-
hold including soldiering, trading, and serving
as sacrificial victims. It is generally assumed that
one key feature of domestic slavery is that the
Slavery is the ownership slaves or their offspring were integrated into the
SLAVERY of human beings. All families that owned them and, eventually, into
nations presently outlaw society. Most domestic slaves were women or
slavery, although it is practiced quietly in many girls who were either purchased from other so-
parts of the world. cieties, born into slavery, or taken in slave raids.
Slavery in its various forms is distinguished Women were preferred over men for a number
from other related institutions such as serfdom, of reasons. First, most of the work performed
peonage, compulsory military service, pawning, by domestic slaves is work traditionally per-
and imprisonment, all of which are forms of formed by women in horticultural societies. Sec-
servitude. ond, women were more easily integrated into
Slavery has a long history in the human ex- these societies because female slaves could pro-
perience and was important in the development duce offspring for their masters. Third, women
of both the Islamic and Western (Greek and were more easily controlled than male slaves,
Roman) civilizations and the European settle- who might revolt.

245
SLAVERY

Although domestic slavery is distinguished The Somali participated in the slave trade
from productive slavery, in any given society the as traders, but they also used domestic slaves.
distinction was often less than clear as slaves These slaves occupied a social category beneath
might be used for a variety of purposes, their the outcaste sab, who performed most menial
treatment varied widely, and the possibility of economic labor as part of a patron-client rela-
integration into society was not always certain. tionship. Slaves, on the other hand, were owned
Perhaps the key distinction between domestic by their masters, although they might be paid
and productive slavery was that, in the former, for their work; those who traveled as traders cer-
slaves played only a limited economic role, while tainly were. Somali domestic slaves could be in-
in the latter, they were a major source of labor in tegrated into society through marriage or sexual
the economic system. relations. A slave woman who married a sab re-
A few examples from around the world in- mained a slave, but her children were sab. Chil-
dicate the variations found in domestic slavery. dren of a slave woman and her master were free
The Tlingit of the northwest coast of North and looked after by the master. Slaves could also
America enslaved both Tlingit from other win their freedom through manumission, al-
Tlingit subgroups and neighboring peoples such though as freemen they did not enjoy the same
as the Flathead of Oregon. Only wealthy Tlingit status as Somali and had no clan affiliation.
owned slaves, who evidently performed domes-
tic chores and helped hunt and fish, freeing their Productive Slavery
wealthy owners to engage in ceremonial and so- Productive slavery (also called chattel or eco-
cial activities. Slaves were also sacrificed by the nomic slavery) was an economic arrangement in
wealthy as a sign of their wealth. Tlingit slaves which slave owners, driven by the profit motive,
were ethnic outsiders who were not integrated used slaves as their labor force to produce raw
into Tlingit clans. Although they lived in the materials for processing. Slavery was governed
same houses as their owners, they were poorly by laws, with slaves defined as the property of
treated and upon death were simply thrown into their owners, who could buy, sell, trade, and uti-
the ocean without ceremony. Tlingit slavery was lize them in any way they choose that market
ended by the Russians in the nineteenth century. conditions permitted. However, in no slave so-
In pre-Communist China, the Black Lolo ciety did the legal system afford slave owners
enslaved Han Chinese, who occupied the low- total control of all aspects of their slaves lives. In
est status in Lolo society, beneath both the upper- terms of the social stratification system, slaves
class Black Lolo and lower-class White Lolo. were in most societies considered to be outside
Han slaves worked in the fields and in house- the system and were denied rights afforded citi-
holds. They might also have been enslaved by zens or even noncitizens who had a place in the
the White Lolo, but this was less common. social order of the society.
Slaves were acquired by kidnapping Han travel- Productive slavery was justified by a Euro-
ers, raiding Han villages, or stealing slaves from pean racist ideology that characterized Africans
other Black Lolo villages. While children of Han and other non-Europeans as nonhuman or in-
slaves were slaves, over three or four generations ferior to Europeans. Productive slavery usually
they might establish their own households, dis- developed in advanced nonindustrialized agri-
avow their Han ancestry, and assimilate into so- cultural societies in which other sources of labor
ciety as White Lolo, in which status they could such as hired free labor were not available. While
own Han slaves. slavery was usually an economic arrangement in

246
 SLAVERY

Brazilian landowners used Africans and indigenous peoples as slaves during the 1850s,
a practice that continued until 1888.

which slave owners sought to make a profit, the in West Africa were captured mainly by other
overall enterprise could be quite costly, given the Africans from different ethnic groups. This ac-
expense of acquiring, transporting, and main- tivity represented a European-instigated expan-
taining slaves. Another cost was frequent slave sion of traditional domestic slavery and made
rebellions, although only one, in Haiti in 1801, raiding for slaves a major economic activity. It
actually led to the overthrow of a government also caused a shift from taking women for do-
and the establishment of a free nation. mestic slavery to taking men, who were more
Slavery in the New World is the major ex- desirable for New World productive slavery.
ample of productive slavery in human history. West Africa was then and remains today a heavily
Between 1500 and 1850, from 12 to 15 million populated region, and even centuries of slave
African slaves were imported to the New World trade had little effect on the overall population
by the Dutch, Spanish, Portuguese, English, and or on the ability of West African societies to
French. An undetermined number of Native sustain themselves. In the New World, the ma-
Americans were also enslaved, mainly by the jority of slaves went to large plantations in Bra-
Spanish and Portuguese in South America. The zil, northern South America, and the Caribbean,
transatlantic slave trade and New World plan- with sugarcane plantations taking the majority
tation economy was a highly profitable economic of the slaves. In North America, there were rela-
arrangement for the European colonists. Slaves tively few large plantations, and most slaves

247
SLAVERY

worked on family farms where cotton and to- ing slavery were carefully spelled out in the
bacco were the major crops. The slave trade and Qur'an and subsequent interpretations. As in
slavery ended in the 1800s. Britain outlawed sla- many forms of slavery, enslavement of members
very in 1808 and freed slaves in its colonies in of one s own ethnic group (in this case, Mus-
1838, and by the 1870s, nearly all slave societies lims) was forbidden. Slavery was of crucial im-
had outlawed slavery. Brazil was the last New portance in the Ottoman Empire, with Slavic
World society to do so, in 1888. Under pressure slaves imported from the Balkans and others
from European nations, slavery was also banned imported from Africa. Numbering perhaps 20
in the Islamic world and Africa by the early percent of the population in Istanbul, slaves per-
twentieth century. formed much of the physical labor required to
A variety of explanations have been offered maintain the empire and served as domestic help
for productive slavery. One suggests that slavery and concubines until the decline of slavery in
is a step in the evolution of human society, an the late 1800s. Islamic slavery, particularly in the
idea now dismissed given that the majority of Middle East, was both domestic and productive
human societies never had slavery. Another ex- in purpose. About 18 million slaves were taken
planation stresses the economic rationality of by Islamic nations in the thirteen centuries from
slavery and suggests that slavery occurs when the 650 to 1900. Many were used as household help,
costs of keeping slaves are less than the economic servants, and concubines, and some served as
benefits reaped from their work. This explana- soldiers. Female slaves, because of their value as
tion also suggests that slavery ends when the domestics and concubines, were especially val-
costs exceed the benefits. The weakness of this ued. So too were eunuchs as household help, and
explanation is that it ignores the social and po- many boys were castrated for this purpose. Slaves
litical costs and benefits of slavery, which were taken or purchased in Africa were widely traded
often beyond the control of the slave owner. The across the Middle East and Southeast Asia, and
most compelling explanation for productive sla- in some places, such as East Africa, worked in
very is the idea that, as in New World societies, productive roles on plantations in addition to
when land is free or easily available and can be their domestic duties. In Islamic slavery, there
worked by the landowners, labor will be diffi- was a deep tradition of manumission; allowing
cult to acquire for large agricultural enterprises. slaves to buy their freedom brought honor to
Therefore, the only way help can be obtained is their masters.
through subjugation, with slavery being one al-
ternative. This explanation also assumes that a Contemporary Forms of Slavery
strong centralized government will enact and Both domestic and productive slavery are now
enforce laws that support slavery and that the mainly institutions of the past. Mauritania, the
economic system is sufficiently developed to sup- last nation to practice productive slavery, has
port large-scale slave trading. All of these con- essentially ended the institution, although
ditions were present in the New World during former slaves continue to live in poverty. How-
the slave era. ever, slavery or slavery-like practices in different
forms are still common around the world, and
Islamic Slavery some experts believe that there are now more
Distinguished from both domestic and produc- individuals living in slavelike circumstances than
tive slavery is Islamic slavery, which took place at any point in human history. The three major
throughout the Islamic world from A.D. 650 until forms of slavery today are child labor, debt bond-
the early twentieth century. The rules govern- age, and forced labor. Other forms include ser-

248
 SORCERY

vile marriage, in which women have no choice Gordon, Murray. (1989) Slavery in the Arab
in getting married, prostitution, and the sale of World.
human organs. Jordan, Winthrop. (1974) The White Mans
Perhaps as many as 100 million children Burden.
worldwide are exploited for their labor. That is,
Klein, Laura F. (1975) Tlingit Women and Town
they are forced to work long hours in unhealthy
Politics.
conditions and are paid little or nothing for their
labor. Some children are local or from the same Lewis, I. M. (1955) Peoples of the Horn of Africa.
nation as the exploiters, while in other cases they Lin, Yueh-hwa. (1947) The Lolo of Liang-shan.
may be taken, with or without parental permis- Translated by Ju Shu Pan.
sion, and shipped elsewhere. Children so ex- Miers, Suzanne, and Igor Kopytoff, eds. (1977)
ploited may be as young as five years of age and Slavery in Africa: Historical and Anthropologi-
most are under twelve. Forms of child labor in- cal Perspectives.
clude child carpet weavers in India, Pakistan, Nieboer, Herman J. (1900) Slavery as an Indus-
Nepal, and Morocco; child domestic servants in trial System.
many West African nations, Bangladesh and
elsewhere; street beggars in many Third World Patterson, Orlando. (1982) Slavery and Social
nations and especially in cities that draw many Death: A Comparative Study.
Western tourists; prostitutes for the tourist trade Pryor, Frederic L. (1977) The Origins of the
in the Philippines and Thailand; and camel jock- Economy.
eys in the Middle East. The sale of children Rubin, Vera, and Arthur Tuden, eds. (1977)
by their parents and middlemen, often with Comparative Perspectives on Slavery in New
government sanctionfrom poor families in World Plantation Societies.
Third World nations to wealthier people in de- Sawyer, Roger. (1986) Slavery in the Twentieth
veloped nations is also considered a form of child Century.
labor, especially since it is not always clear how
Van den Berghe, Pierre. (1981) The Ethnic
much freedom the parents had in choosing to
Phenomenon.
sell their child. Until the end of Communist rule,
Romania was a major source of adoptive chil-
dren for the United States, with Peru now fill-
ing that role. Child labor is considered desirable
by employers because it is cheap, children are Sorcery is the use of
easy to control and replace, they can perform SOKCKRY magic to cause harm for
some tasks that require small fingers and dex- the purpose of achieving
terity better than adults, and they are less likely political and other goals. Magic, in turn, may be
to revolt. defined as the manipulative use of supernatural
power for the purpose of achieving a goal. Magic
See also SERVITUDE.
is typically used when other means of achieving
the desired goal are blocked or impractical. For
example, if an individual wished to kill an en-
Centre for Human Rights. (1991) Contemporary emy, he or she might use sorcery to do it be-
Forms of Slavery. Fact Sheet No. 14. cause killing the person with physical means
Christensen, James. (1954) Double Descent might expose the individual to legal action. Sor-
among the Fanti. cery requires the use of a sorcerer who, through

249
STATE

his of her knowledge of formulae and rituals, katawa the horses he had captured, even though
can direct supernatural power. he would bring none to his own father. He also
Sorcery predominates in native cultures in gave Pahukatawa other gifts at various times.
North and South America. Nearly 50 percent When Pahukatawa became sick, Brave Chief
of cultures that attribute illness to sorcery are in was by his side and brought him whatever he
North or South America. Belief in sorcery as a wanted. Just before Pahukatawa died, he named
cause of illness is found mostly in technologi- Brave Chief as his replacement. But other people
cally unadvanced societies, those with no indig- in the tribe believed that Brave Chief used sor-
enous writing system, small communities, and cery in his quest to become chief. According to
an economy based on foraging or horticulture. them, Brave Chief wanted not only to become
This suggests that sorcery is more likely to flour- chief, but to do it before his own father, Old
ish in cultures where people have relatively equal Man Meat Offering, died himself. So, it was
access to the supernatural world. This is more said, Brave Chief and his father plotted to make .
typical of relatively simple cultures where there Pahukatawa ill and die, and that they did so by
is less social inequality in all spheres of life. Old Man Meat Offering using sorcery on him.
Sorcery is found primarily in cultures that
See also AUTHORITY; CONTRACT; CRIME; FAC-
rely on coordinate control to maintain social or-
TION; HOMICIDE; LEADER; PROCEDURAL LAW;
der (that is, where conflict is resolved through
REVENGE; SELF-REDRESS; THEFT.
the direct action of the persons involved by
means such as retaliation, apology, avoidance,
etc.) and that do not have agencies ofsuper-
ordinate control (that is, where social order is Murdock, George Peter. (1980) Theories of Ill-
maintained through the actions of culturally rec- ness: A World Survey.
ognized authorities such as a council, a chief, or
Weltfish, Gene. (1965) The Lost Universe: Paw-
courts). Sorcery acts as a coordinate control in
nee Life and Culture.
that it causes individuals to pause before caus-
ing harm to others for fear that the other person Whiting, Beatrice B. (1950) Paiute Sorcery.
will retaliate by using sorcery to cause them to Whiting, John W. M. (1967) "Sorcery, Sin and
become ill, have an accident, or even die. the Superego: A Cross-Cultural Study of
Among the Pawnee Indians of the Great Some Mechanisms of Social Control." In
Plains, much of the sorcery was used to attain Cross-CulturalApproaches, edited by Clelland
political goals, and was practiced by both men S. Ford, 147-168.
and women. Sorcerers never sold their services,
but frequently used them on behalf of others,
particularly family members.
Such was the case of the Pawnee leader
The state may be de-
Brave Chief. When Brave Chief was young, he
STATE fined as a political unit
coveted possession of a powerful position in tribal
with the following
politics. But being from a poor family with a
features:
low social status, Brave Chief had far to go. He
began by putting himself in the good graces of a 1. It has a single government that has author-
famous Pawnee chief, Pahukatawa (Hill Against ity over all members of the group.
the Bank), by giving him the prizes that he col- 2. The government is sovereign and is not sub-
lected during his raids. He would bring Pahu- ject to external control.

250
 STATE

3. The government has authority over an area directly challenge the power of the authorities
that falls within clearly defined geographi- and to take power from them.
cal borders. One of the questions that has most captured
4. Both the government and societal structure the interest of cultural anthropologists and ar-
are hierarchical; there are several social lev- cheologists is the following: Why have peoples
els between the most common people and all over the world and for thousands of years
the elites, and several political levels between chosen to live together in the large groups we
the common man and the supreme ruler. call states, which have central authorities of great
power, taxes, forced labor (including military
5. The government has a monopoly on the le- drafts), and legalistic forms of social control,
gitimate use offeree to implement policy. when they could have much more freedom liv-
6. The government has the power to tax or to ing in small groups? This question, which an-
draft labor in order to support itself. thropologists usually render as "Under what
conditions do states evolve?" has yet to be an-
swered to the full satisfaction of most anthro-
The question of the definition of the state pologists. This entry will describe some of the
has caused anthropologists, political scientists, most widely accepted attempts to answer that
and historians considerable argument among question. The interest of anthropologists is di-
themselves. For some, the concept was mean- rected toward so-called "primitive" or "pristine"
ingless. Others said that the size of the popula- states, states that became states due to their own
tion was important, but Lowie (1961) correctly development, not by imitation of states that were
saw that population meant nothing of concep- already in existence. The United States of
tual importance. What would be the line divid- America, for example, is not a primitive or pris-
ing the state from all other forms of political tine state because it is modeled after European
organization? If, for example, we set it at 50,000 states.
people, we would include the Navajo Indian tribe One of the earliest attempts to describe the
as a state (which it is not because it is not sover- beginnings of the state was made by Karl Marx
eign) and exclude Liechtenstein, a European and Friedrich Engels. The origin of the state,
nation-state. Furthermore, states in the past had they argued, was ultimately but indirectly the
truly small populations in many cases, such as result of improvements in technology. Marxist
the Greek city-states. theory states that societies pass through stages
Some anthropologists have disputed the idea of evolution based upon their level of techno-
that there is such a thing as a state, a kind of logical advancement. When technology reached
political and social organization that is dif- a certain stage, the stage accompanied by the
ferent in some important way from other soci- invention of writing and known as "civilization,"
eties. E. Adamson Hoebel (1949) was of this man had reached the point at which division of
opinion. It is clear, however, that living in a state labor developed out of a need to operate the ever-
society is different from living in a society that more sophisticated devices that technological
is not a state. It is, of course, far easier to escape advances had developed. It made sense, for ex-
the force of authority in a nonstate society, in ample, to have someone who knew how to run a
which authority may not be centralized. In loom run that loom all day, and for someone else
nonstate societies, small groups are usually able who knew how to farm run a farm all day. Both
to leave and to form societies of their own. Fur- were more efficient producers in that way. From
ther, in nonstate societies, it is much easier to this separation of consumer from production

251
STATE

came businessmen who traded the goods, accu- A third theory of how states come into be-
mulated wealth, bought machinery, and em- ing is called the hydraulic theory. This theory,
ployed workers who made them more money. first put forth by Steward (1955) and then greatly
Thus came about, in one set of circumstances, a developed by Wittfogel (1957), places irrigation
situation in which socioeconomic classes devel- systems and their management at the center of
oped, one rich (the entrepreneurs), the other the forces that push a society toward state sta-
poor (the workers). The two classes were mutu- tus. Wittfogel, whose name is now considered
ally antagonistic. The poor wanted the wealth almost synonymous with the hydraulic theory,
that they had mostly created, and the rich wanted argued that the first peoples to use irrigation were
to keep it for themselves. The state came into those who lived in floodplains. They began by
being when governments, through the use of using their technology to control natural flood-
laws, courts, prisons, militia, etc., kept the work- ing and later developed true irrigation systems.
ers from revolting and destroying the social and As the population of an irrigated area grew, the
economic arrangement that kept them poor and size and complexity of irrigation systems grew
hard at work. One somewhat atypical example as well. Growing at the same time was the num-
of the state was that of ancient Athens, which ber of owners of various small parcels of land
had a class of slaves kept in check by the threat that would have to be crossed by irrigation
of the use of violence. And in feudal times, the ditches or pipes, thus involving increasingly
purpose of the state was to keep the serfs sub- complex legal and political disputes. To manage
servient to the nobility. In any event, according the technological, political, and legal matters
to Marx and Engels, the state rests upon what growing out of a spreading irrigation system, a
some have called a socially "internal conflict" corps of professional managers was needed.
between classes, in which the privileged class or These managers later became an administrative
classes hold down and oppress the unprivileged body that governed the society, and thus the so-
class or classes through armed force. The prob- ciety developed into a state with a centralized
lems facing Marx's theories are discussed in the government.
entry on Marxism. Unlike other anthropologists, Elman Ser-
Another early theory, first made public in vice (1975) emphasized the evolution of culture
1920, was created by Robert Lowie (1961). He and of forms of political leadership and author-
argued that states form when two conditions ity in his theory of how states have come into
exist in the same society at the same time. The being. He argues that human societies begin as
first condition is the "territorial bond," meaning band societies, later turn into tribal societies, then
that the society has an attachment to and exclu- become chiefdoms, and even later evolve into
sive control over a specific territory. The second primitive states. At each stage, political power
condition is a development of an authority with is further centralized and made more enduring
coercive power over the entire society. This and less dependent upon the characteristics of
power, in turn, intensifies and brings into con- the person or persons holding power. A ruling
sciousness the feeling of neighborliness that has class develops and works to protect its own ad-
been found a universal trait of human society. vantages, while at the same time the rest of a
Once established and sanctified, the sentiment society's members come to appreciate the ben-
may flourish well without compulsion, glorified efits of a stable and centralized political power.
as loyalty to a sovereign king or to a national When centralized political power reaches a truly
flag (Lowie, 1961: 116-117). stable stage, the society is a state.

252
 STATE

One of the more famous theories of how in many societies people did many things to
states come into being was developed by Robert keep their populations at or below the carry-
Carneiro (1970). His theory, known as a theory ing capacity of the land, that is, the number of
of circumscription, argues that two types of cir- people the land would support. But, he noted,
cumscription, environmental circumscription in agricultural societies, people can work harder
and social circumscription, cause the formation or develop a new technology, both of which can
of states. Environmental circumscription works increase the production of food and, thus, the
in the following manner. In agricultural socie- carrying capacity of the land. In fact, in many
ties with limited available land because they are agricultural societies, there is a surplus of food.
surrounded by mountains, ocean, deserts, riv- Harris states that in such circumstances, pow-
ers, etc., wars are frequently wars of conquest. erful individuals take control of these surpluses
In areas not so bounded in which available land and distribute them among the population.
is plentiful, wars are for revenge, prestige, to ac- These powerful people become even more pow-
quire women, and for other reasons, but not for erful by virtue of their control over some of the
reasons of conquest and subjugation; conquest food supply of the society, and eventually this
and subjugation could not easily take place be- elite group evolves into the centralized author-
cause the defeated would simply escape. But in ity that characterizes a state.
regions where land is short, wars of conquest and
See also CIVILIZATION; MARXISM.
subjugation readily take place because it is
through subjugation of another group that one's
own group is able to exact from the subjugated Carneiro, Robert. (1970) "A Theory of the Ori-
group taxes or some other form of tribute. As gin of the State." Science 169: 733-738.
wars of this sort continue, the size of the terri-
tory and the number of people controlled by a Fried, Morton H. (1967) The Evolution of Po-
single authority increase. As this increase con- litical Society.
tinues, political complexity increases, and po- Harris, Marvin. (1977) Cannibals and Kings: The
litical evolution takes place. Eventually, entire Origins of Culture.
regions are controlled by one ruler, who is a chief
or, later in the evolutionary process, a king. At Hoebel, E. Adamson. (1949) Man in the Primi-
this point, the society often becomes a state. tive World.
Social circumscription works in much the Lowie, Robert H. (1961 [1920]) Primitive
same way. In some cases, the population of an Society.
area is large, but land is freely available. If, how-
ever, the population concentrates itself in one Marx, Karl, and Friedrich Engels. (1968)
area, for example, to better deter attacks from Karl Marx and Friedrich Engels: Selected
outsiders, land in that area becomes scarce. If Works in One Volume.
the groups in the area fight each other, the same Service, Elman R. (1975) Origins of the State and
progression toward political complexity becomes Civilization: The Process of Cultural Evolution.
possible because the defeated cannot escape,
Steward, Julian. (1955) Theory of Culture Change:
prevented as they are by the presence of groups
The Methodology of Multilinear Evolution.
of other people all around them.
Marvin Harris (1977) believes that states Wittfogel, Karl. (1957) Oriental Despotism: A
came about in quite another way. He saw that Comparative Study of Total Power.

253
STATUS AND RANK

Status refers to the rela- west coast Indian tribes, gave large feasts known
STATUS AND RANK tive social position an as potlatches, in which the giver of the potlatch
individual has within a gave away gifts of value, in addition to the food,
society. The president of the United States has a in an attempt to raise his own position of rank
higher status than does a gas station attendant within the group. His guests at the potlatch,
among the population of the United States. A those who were to receive the goods, were seated
person s status is often in accordance with his or around the giver in a fashion that indicated their
her political power, prestige, and access to re- rank, as well as the order in which they would
sources, though this is by no means always true, receive their gifts and the relative value of those
nor is it true in the same ways in all societies. gifts. In other words, the first person to receive
Status may be either ascribed or achieved. gifts would have the highest rank of the guests,
Ascribed status is acquired through birth and would sit closest to the potlatch giver, and would
not by anything the individual herself or him- receive gifts of the greatest value. The person
self has done. The queen or king of England with the next highest rank would sit slightly far-
acquires royal status by birth. Achieved status ther away, would receive gifts second, and would
must be acquired by the personal efforts of the receive gifts of a slightly lesser value than those
individual. The president of the United States given the first guest, and so on.
has achieved status. Among the traditional Tongans, a Poly-
Rank refers to status that is graded. While nesian people, rank was accorded on the basis of
most people in the United States would agree one's sex and kinship relations. People of one
that a U.S. senator, a winner of the Nobel Prize rank were expected to behave with respect and
in chemistry, and the basketball player Michael deference to those of higher ranks. Within the
Jordan are all people of high status, there is no nuclear family, fathers held the highest rank,
agreement as to which is higher in status than daughters and their children were next in rank,
the others. In rank systems, all statuses have well- and sons and their children were of yet lower
known grades, and everyone knows which is of rank. The oldest daughter and her children had
higher status and which is of lower status than a higher rank than the next oldest daughter and
the others. The U.S. Army's system of military her children. The oldest son and his children all
rank is a good example of this. The rank of ma- held a lower rank than that of the youngest
jor is a higher rank than that of captain, but lower daughter and her children, but a higher rank than
than that of lieutenant colonel. That means that that of the next younger son and his children.
all majors enjoy a higher status than all captains Within the extended family, however, it was
but a lower status than all lieutenant colonels. the fathers sister who held the highest rank. She
The level of authority and the pay each person chose her brother's sons' wives and made the
at these ranks receives varies relative to those arrangements for their weddings. Also, her chil-
above and below in rank; that is, a person at the dren were able to get labor from her brother's sons.
rank of major has more authority and receives a People descended from older sons had a higher
higher rate of pay than the person at the rank of rank than those descended from younger sons.
captain.
Among the Kwakiutl Indians of the north-
west coast of North America, ranking was ap- Codere, Helen. (1966) Fighting with Property:
plied not to categories of people but to A Study of Kwakiutl Potlatching and Warfare^
individuals. The Kwakiutl, as did other north- 1792-1930.

254
 SUBSTANTIVE LAW

Hogbin, Ian. (1972 [1934]) Law and Order for the members of society. Criminal law, civil
in Polynesia: A Study of Primitive Legal law, inheritance law, property law, contract law,
Institutions. family law, marriage law, etc., are all types of
Kaeppler, Adrienne L. (1971) "Rank in Tonga." substantive law.
Ethnology 10: 174-193. See also CIVIL LAW; COMMON LAW; CONTRACT;
FAMILY LAW; INHERITANCE; MARRIAGE; PER-
SONAL PROPERTY; PROCEDURAL LAW; REAL
PROPERTY.
Substantive law is the
SUBSTANTIVK LAW law that sets limits to be-
havior, and is the kind of
law we usually think of as "law." Substantive law Pospisil, Leopold. (1974 [1971]) Anthropology
deals with those behaviors that are prohibited of Law: A Comparative Theory.

255
 criminate killing of people who are not directly
involved in a conflict. We have seen in recent
history that terror is a commonly used means to

t
fight a war in which one of the parties has rela-
tively much less power than the other. Terrorists
use terror to try to force their more powerful
opponent into granting the political ends that
they desire. The Irish Republican Army, for ex-
ample, until recently used terror to try to force
Great Britain to end its authority over North-
ern Ireland. The Palestine Liberation Organi-
zation until recently used terror to try to force
Israel to end its authority over Palestinian people
and the land they occupy.

Theft is stealing, that is,

The territorial principle THLIT taking possession of pro-
TERRITORIAL of law is the principle perty owned by another
PRINCIPLE OL that legal jurisdiction is with the intent of transferring ownership rights
LAW determined by the loca- from the owner to the thief without consent of
tion of the offender at the owner. Different peoples handle theft dif-
the time that an offense is committed. If, for ferently. In some societies, theft of many kinds
example, a man commits a murder in Washing- of property is not considered a crime and is tol-
ton State, he is subject to Washington State's erated. In other societies, theft is considered a
laws and is tried in Washington State (even if serious crime worthy of the death penalty (such
he is apprehended in Florida). He will not be as Britain at one point in time).
subject to the death penalty, because Washing- In the society of the Tikopia of Polynesia,
ton state (as of this writing) does not use capital owners who lose property to theft rely primarily
punishment. If he commits a murder in Florida, on self-redress and the morals of the thief. A
he is subject to Florida laws and is tried in Florida man who discovers that he has been burglarized
even if he is apprehended in Washington State. will usually begin by repeatedly shouting loudly
It is possible that he will be subject to the death "lefu" which has the effect of bringing people
penalty, because Florida (as of this writing) does from all around the area. The people then ask
use capital punishment. the reason for the call and, when they learn it,
give sympathy to the victim and make guesses
See also JURISDICTION; PERSONALITY PRINCIPLE
about the identity of the thief.
OF LAW.
If the owner can find out who stole from
him, he usually will go directly to the suspect
and ask him about the theft. If the thief admits
Terror is defined by the theft, he or she will return the stolen prop-
TLRROR Leopold Pospisil of Yale erty or the owner will take some other property
University as the indis- from him or her as compensation.

257
THEFT

Yale University's Leopold Pospisil defines terror as indiscriminate killing of people not directly involved in a
conflict. A young woman, a victim of such terrorism, is carried from the scene of a 1986 car bombing in
which thirty people were killed or wounded in Beirut, Lebanon.

However, most thieves will lie about the as intermediaries with the spirit world. Those
theft, so the owner must resort to other tactics. who resort to tautuku keep their activities se-
One of these is for the owner to try to shame cret. One reason for this is that if the thief knows
the thief into admitting guilt. The owner does that he is the target of sorcery, he can find su-
this by composing a song calling attention to pernatural remedies to protect himself. But just
his loss and has it sung as a dance song, in which as important, the practice of tautuku is in itself a
the members of the community, including the morally negative act, and to engage in it is con-
thief, dance to the song. The Tikopia believe that sidered bad.
hearing the song will make the thief feel shame, Another way in which Tikopians use super-
and that dancing to it will increase the shame. natural powers to counter theft is to use the
The Tikopia save as a last resort their most power of taboo to guard their crops. To put a
effective remedy for theft, which is the use of taboo on one s crops is to put supernatural guard-
sorcery against the thief. Using sorcery against a ians there, who will make anyone who steals from
thief is called tautuku, and is designed to cause the protected garden ill. In fact, most people who
the thief to become ill or even to die. The steal from gardens do so from gardens that are not
tautuku, being the product of the power of the protected by taboo. On the other hand, there are
spirit world, is actually administered by special- those people who do not believe in the power of
ists, chiefs, elders, and spirit mediums who act taboo and steal from protected gardens anyway.

258
 THEOCRACY

For Tikopian men of high rank, theft pre- priest refers to all religious practitioners, not sim-
sents a somewhat different set of circumstances. ply Roman Catholic ones), people who are pro-
First, they had at their disposal the ability to fessional religious functionaries as well as the
quickly employ tautuku themselves, and so were intermediaries between ordinary people and a
perhaps less of a target for thieves. On the other god or gods. The term theocracy is derived from
hand, the threat of tautuku never stops all theft the Greek words theos (god) and kratos (rule).
in any case. Men of high rank were generally Examples of modern theocracies are Vatican
people of high morals, but when one such man City, traditional Tibet (though presently the tra-
decided to be a thief, he could steal virtually with ditional government is in exile from Tibet), and
impunity. This is because one whose property is several local areas in which priests hold the ma-
stolen by a high-ranking man could not accuse jority of political power. An example of the lat-
him, and this is true even for other people of ter is the island of Newfoundland in Canada
high rank. Nobody has a right to insult a high- (which, along with Labrador, constitutes one of
ranking person by making accusations of theft, the nation's ten provinces). There, Catholic
and the high-ranking person has the right to beat priests, though not controlling the legislature
anyone who does make such an accusation. In directly, do influence people's votes to the de-
short, the Tikopians do not possess any good gree that they effectively control a great deal of
means of preventing theft. political power. For example, the theory of hu-
Theft was a wrong among the traditional man evolution cannot be taught in the grade
Cheyenne, but punishment of this wrong con- schools of Newfoundland because of opposition
flicted with the Cheyenne ideal of generosity. It to such teachings by the priests there.
often happened that someone who had stolen Another example is the British monarch,
an article was confronted by the owner and told who is, as the head of the Church of England, a
that if the thief had simply asked for the article, theocratic ruler.
it would have been freely given. The idea be- An interesting case of a theocratic govern-
hind this process was to shame the thief into ment concerns that of the Micmac Indians of
refraining from theft, not to retrieve the stolen Cape Breton Island, Nova Scotia. The Micmac
article, since it was considered unseemly to be converted to Roman Catholicism in the seven-
too concerned about a loss of a personal item. teenth century. When the British drove the
French out of Canada in the eighteenth century,
most of the Roman Catholic priests in eastern
Firth, Raymond. (1975 [1965]) Primitive Poly- Canada also left. Those who remained could do
nesian Economy. very little for the Micmac, outside of saying the
last rites and conducting funeral and wedding
Llewellyn, Karl N., and E. Adamson Hoebel.
masses once a year. This left the work of giving
(1961 [1941]) The Cheyenne Way.
sermons, saying prayers, and leading the sing-
ing of hymns largely undone. On Cape Breton,
the Micmac headmen, members of the Sante:
Mawiomi (Grand Council) took up these func-
tions in their respective bands. They used their
Theocracy refers to a sermons as a tool of leadership, referring ob-
Til KOC RACY political system in which liquely to various people and their improper acts
the political power of a in the sermons in order to coordinate public os-
society rests in the hands of priests (the term tracism of them. Being able to say prayers and

259
TOTALITARIAN DICTATORSHIP

sing hymns in the Micmac language was a prime the president of the United States became men-
requirement to become a headman and member tally deranged and made a treaty with the presi-
of the Grand Council; therefore, it was neces- dent of Russia that stated that the United States
sary to be literate in order to read prayer and would give Russia all the gold in Fort Knox, it is
hymn books printed in Micmac. Also, as priests highly unlikely that the U.S. Congress would
(though not recognized as such by the Roman approve such a treaty, and thus it would never
Catholic Church), the members of the Grand have the force of law. Of course, even if the leg-
Council had an additional claim to legitimate islature approves a treaty, it has no effect unless
authority as intermediaries between the people the legislation is enforced by the courts. Courts
and God. in the former Soviet Union, for example, did not
prevent the Soviet military from flagrantly break-
ing the Strategic Arms Limitation Treaties that
Strouthes, Daniel P. (1994) Change in the Real the former Soviet Union had made with the
Property Law of a Cape Breton Island Micmac United States. Similarly, Canadian courts have
Band. damaged Canada's observance of the Migratory
Birds Act Treaty with the United States by al-
lowing Canadian Indians to kill migratory birds
outside of the hunting season as defined by the
treaty and enacted by legislation.
One instance of how the absence of legisla-
TOTALITARIAN
tion affects treaty rights concerns the Jay Treaty
DICTATORSHIP
of 1794, which was signed by the United States
See AUTOCRACY. and Great Britain. The terms of the treaty al-
lowed the citizens of the United States and Great
Britain, as well as the Indians living here and in
Canada (which was part of Great Britain at the
time), to cross the boundaries between the two
A treaty is an agreement countries freely and without the payment of
TRKATY made between two inde- duties on personal belongings. Great Britain
pendent political groups never passed legislation to grant the rights con-
(nowadays, usually state societies). There are sev- tained in the treaty, and therefore Indians in
eral kinds of treaties, but most treaties differ Canada do not have the right to bring goods
largely in the degree to which their provisions from the United States into Canada free of duty
are enforced by the authorities that sign them. payments.
Most international law is based upon treaty In other societies, such as band and tribal
agreements. societies, the ability of leaders to make success-
In the affairs of modern nation-states, trea- ful treaties is limited by their authority over their
ties made by leaders or their representatives have own people. In the 1940s, the Canadian gov-
no force of law with respect to the people in the ernment tried an experiment in which Indians
signatory countries unless the provisions of the living in Nova Scotia in small bands over a large
treaty are also approved by the legislatures and area were to be concentrated in just two com-
the courts. This protects the people from the munities, where they would be more easily ad-
effects of leaders who may not have the best ministered; this plan was known as the
wishes of the people in mind. For example, if Centralization Program. The Grand Chief of the

260
 TREATY

Grand Council was the leader/authority of the day by the executive branches of national gov-
Cape Breton Island, Nova Scotia, Micmac ernments. This is known as the executive agree-
people. He concluded a treaty with the Cana- ment. With respect to the United States,
dian government in which he agreed to lead the executive agreements do not require approval by
other Micmac of Cape Breton to the area cho- the Senate. Typically, their provisions are very
sen as the target point of the Centralization Pro- narrow in scope and fall within the limits set
gram on Cape Breton, the Eskasoni reserve. In by legislation, or else the Senate may vote per-
return, the Micmac people there were to receive mission for an executive agreement of a particu-
employment, new houses, agricultural imple- lar type to be made at a later date. Trade
ments, a priest, electricity, telephone service, and agreements between nations are usually execu-
a new school. The Grand Chief, who was to re- tive agreements.
ceive a good farm for himself as part of the treaty, The following is an actual treaty that was
saw in the treaty a chance for the Micmac of made by the King of Great Britain and the Presi-
Cape Breton to advance themselves materially. dent of the Chinese Republic in 1928 over a
However, the vast majority of the Cape Breton matter of trade (Treaty between His Majesty and
Micmac did not want to live in one place to- the President of the Chinese Republic, 1929).
gether and refused to move to Eskasoni. They
opposed the Grand Chief so vigorously that he Treaty between his Majesty and
was forced to resign. The Grand Chief was even- the President of the
tually allowed to resume his position as Grand Chinese Republic relating to
Chief, but under the condition that he would the Chinese Customs
no longer engage in political relations of any kind Tariff, &c.,with Annexes thereto.
with foreign powers.
Nanking, December 20> 1928
The problems Indian leaders have faced in [Ratifications exchanged at London, March 14,
ensuring that their followers abide by the provi- 1929.]
sions of a treaty have been common in treaties His Majesty the King of Great Britain,
between Indians and whites. In fact, it was fairly Ireland and the British Dominions beyond the
rare that an Indian leader could do so. When Seas, Emperor of India, and
Indian groups sold lands to the white people, His Excellency the President of the Na-
not all of the people in the group usually agreed tional Government of the Republic of China,
with the sale and refused to recognize it. This Desiring to strengthen the good relations
led to the old epithet "Indian Giver" to refer to which happily exist between them to facili-
someone who had agreed to give something and tate and extend trade and commerce between
then wanted it back. Today, Indian treaties con- their respective countries, Have resolved to
conclude a treaty for this purpose and have
stitute a special kind of treaty, in which prefer-
appointed as their plenipotentiaries:
ence for Indian interests is superior. The
Canadian courts have called Indian treaties sui His Majesty the King of Great Britain,
generis (of their own kind, or unique), and have Ireland and the British Dominions beyond the
given them legal force when they benefit Indi- Seas, Emperor of India:
ans, even if the Indians involved had themselves For Great Britain and Northern Ireland,
broken the treaties decades ago. The situation is Sir Miles Wedderburn Lampson, K.C.M.G.,
much the same in the United States. C.B., M.V.O., His Majesty's Envoy Ex-
In addition to ordinary treaties and Indian traordinary and Minister Plenipoten-
treaties, there is a third kind of treaty, made to- tiary to the Republic of China;

261
TREATY

U.S. President Jimmy Carter, left, and Soviet leader Leonid Brezhnev exchange documents after signing the second
Strategic Arms Limitation Treaty (SALTII) in Vienna in 1979. A treaty's terms are usually negotiated by
representatives of the involved nations until there is mutual agreement, and then, in the case of democratic
societies, the treaty is presented to the national legislative body for approval.

His Excellency the President of the Na- such way as she may think fit are hereby abro-
tional Government of the Republic of China; gated, and that the principle of complete na-
His Excellency Dr. Chengting T. Wang, tional tariff autonomy shall apply.
Minister for Foreign Affairs of the Na-
tional Government of the Republic of Article 2.
China; The nationals of either of the High Con-
tracting Parties shall not be compelled under
who, having communicated their full powers, any pretext whatsoever to pay in China and
found in good and due form, have agreed as the territories of His Britannic Majesty to
follows: which the present treaty applies respectively
any duties, internal charges or taxes upon
Article 1. goods imported or exported by them other
It is agreed that all provisions of the ex- than or higher than those paid on goods of
isting treaties between the High Contracting the same origin by Chinese and British na-
Parties which limit in any way the right of tionals respectively, or by nationals of any other
China to settle her national customs tariff in foreign country.

262
 TRIBE AND TRIBALISM

Article 3. Treaty between His Majesty and the President of

His Britannic Majesty agrees to the ab- the Chinese Republic together with other Docu-
rogation of all provisions of the existing trea- ments relating to the Chinese Customs Tariff,
ties between the High Contracting Parties &., Nanking, December 20,1928. (1929).
which limit the right of China to impose ton-
nage dues at such rates as she may think fit.
In regard to tonnage dues and all matters
connected therewith, British ships in China
and Chinese ships in those territories of His
Britannic Majesty to which the present treaty Trespass, as it is applied
applies, shall receive treatment not less TRESPASS by the U.S. legal system,
favourable than that accorded to the ships of refers to entering onto
any other foreign country. and remaining upon land owned by another
without the owner's permission and against his
Article 4. wishes.
The present treaty shall be ratified and This definition of trespass does not apply in
the ratifications shall be exchanged in Lon- all societies. In fact, the entire idea of trespass
don as soon as possible. It shall come into force does not exist in all societies. For the Naskapi
on the date on which the two Parties shall have
Indians of Labrador, the concept has no mean-
notified each other that ratification has been
effected.
ing. The only separately owned parcels of land
are hunting territories. One cannot trespass on
The English and Chinese texts of the these territories because anyone may cross
present treaty have been carefully compared another's hunting territory and, along the way,
and verified; but in the event of there being a may kill any animal he or she comes across for
difference of meaning between the two the food. The only thing that a person traveling upon
sense as expressed in the English text shall be the hunting territory of another may not do is
held to prevail. to kill fur-bearing animals to collect the furs for
In witness whereof, the respective pleni- sale. Fur-bearing animals maybe killed for their
potentiaries have signed the present treaty in meat, but the skins always belong to the owner
duplicate, and have affixed thereunto their of the hunting territory.
seals.
Done at Nanking, the twentieth day of
December, nineteen hundred and twenty-
eight, corresponding to the twentieth day of Barton, Roy F. (1969 [1919]) Ifugao Law.
the twelfth month of the seventeenth year of Lips, Julius E. (1947) "Naskapi Law." Transac-
the Republic of China. tions of the American Philosophical Society
37(4): 378-492.
[Seal] MILES W. LAMPSON.
[Seal] CHENGTING T WANG.

Cohen, Fay G. (1986) Treaties on Trial.

Morse, Bradford W., ed. (1985) Aboriginal A tribe is a collection of
Peoples and the Law. TRIBI; AND small, nonstate societies
Strouthes, Daniel P. (1994) Change in the Real Prop- TRIBALISM sharing the same lan-
erty Law of a Cape Breton Island Micmac Band. guage and overall culture

263
TRIBE AND TRIBALISM

who join together periodically or in times of A second, additional use for the term tribe
trouble to form one politically united group. is as a concept to distinguish societies. In this
Tribal societies, prior to dramatic cultural change usage, we refer to the Badaga tribe, the Kota
resulting from contact with industrialized soci- tribe, the Kurumba tribe, and the Toda tribe,
eties, numbered several thousand. Anthropolo- four neighboring groups of the Nilgiri Hills of
gists have attempted to categorize all societies south India. The use of the word tribe indicates
of the world (or at least all known, well-described that each is a separate social entity, distinct from
societies, about 1,500 in all) using a band-tribe- the other social entities. Thus, tribe is in some
chiedom-state typology. However, in reference sense an equivalent concept to ethnic group,
to societies today, the typology is difficult to with tribe used more commonly for small, non-
apply because most cultures have changed mark- Western societies and ethnic groups than for the
edly in the last fifty years. This typology of band- present-day descendants of immigrants to new
tribe-chiefdom-state also suggests an lands. Various attempts have been made to de-
evolutionary progression throughout human his- fine the basic features of a tribe as it is used in
tory, for as one moves along the scale, each type this way, focusing on factors such as common
of society is larger and more complex and exerts territory, name, language, sense of common
more control over its natural and social environ- identity, religion, technology, and others. In gen-
ment than the previous type. eral, however, when tribe has been used in this
The term tribe is used in three other ways. way a group is usually identified as a distinct
First, it is used in efforts to produce a typology group because it speaks a language different than
of cultural types. Tribe is used in this sense to its neighbors, occupies a defined territory, and
refer to all so-called "primitive" cultures of the has a distinct name (although the name may be
world in contrast to all "civilized" ones. When given by outsiders rather than by the group to
used objectively, technologically primitive itself).
(small-scale, preliterate or nonliterate, and non- The third additional usage of the term tribe
industrialized) cultures are ones that are at the involves specific legal and political arrangements
low end of the scale of social, political, techno- that accrue to groups and the members of those
logical, and economic complexity, while civilized groups in various nations. In the United States,
cultures are at the high end. For example, among the designation of over 300 Native American
the cultures of the indigenous New World, most groups as tribes (or some related term such as
of the hundreds of Native American cultures, at communities, towns, nations, bands, reserva-
the time of first contact with Europeans, would tions, rancherias, colonies, or pueblos) defines
be considered tribal or primitive, while the Inca, the legal and political relationships between the
Aztec, and Maya would be considered civilized. group and federal and state governments. Simi-
When used objectively in this way, such use of larly, the designation of a group in India as a
the concept of tribe is legitimate, although per- Scheduled Tribe indicates that the government
haps not very enlightening. However, the use of considers it to be disadvantaged and that its
tribe or tribal as an equivalent for primitive and members are eligble for special benefits not avail-
in opposition to civilized often opens the door able to others. Thus, the label tribe takes on a
for ethnocentric, simplistic, and sometimes rac- clearly defined legal meaning that may have
ist interpretations. This view also has nothing major political and economic consequences for
to do with the concept of tribe as it has been the tribe, its members, and other members of
traditionally used by social scientists. the nation.

264
 TRIBUTE

Tribalism is sympathy for and political advocacy Winthrop, Robert H. (1991) Dictionary of Con-
of tribal interests, including the interests of fel- cepts in Cultural Anthropology.
low tribespeople. Tribalism became a particu-
larly important issue in areas in which colonial
powers have or had dominance, such as Africa.
Max Gluckman observed that, in Africa at least,
tribalism manifests itself in two very different Tribute refers to money,
and distinct ways. TRIBUTE goods, or services re-
The first way concerns benefits that an in- quired of the people of a
dividual derives from membership in his or her society by the society's political leaders. In some
tribe within the tribe's own territory. It is the societies, tributary payments are largely redis-
tribe, for example, that grants a person land on tributed among the members of the society, while
which to grow crops. So long as the tribe exists in others, tribute is used largely to provide for
and has sufficient power, the individual has a the livelihood of the elite. In our society, we pay
guarantee that he will have land to use. Therefore, tribute in the form of taxes. In other societies,
in rural areas, it is important for an individual to tribute is or was paid in the form of goods such
support his tribe. Moreover, it is the tribe that gives as agricultural produce.
the individual his or her identity and determines Another important form of tribute is known
the customs, rules, and laws that influence his as corvee, or labor required by the political lead-
or her behavior when he or she is at home. ers from the people. The Inca Indians of Peru
In urban areas, tribalism works first of all to used corvee. Households were required to pro-
help a person categorize the people whom he or vide men to work without pay on a parcel of land
she meets. But most importantly, tribalism comes set aside for religious leaders and on another
into play in political struggles. If there are elec- parcel set aside for civic leaders. Food, primarily
tions, a tribalist will seek to elect someone of his maize, was grown on these lands for the support
own tribe, regardless of other issues that may of the leaders, namely the bureaucrats, priests,
also be important. Generally speaking, however, and royalty. This food also supported the dis-
in an urban environment, workers frequently act abled, who could not farm themselves, as well
in ways that are of direct benefit to themselves, as the military. The state provided for corvee
rather than out of purely tribalist motives. workers all the tools and seed required for the
planting, and also gave the workers food and beer
when they worked. The people who worked for
the state were required only to labor, and bore
Ghurye, G. S. (1963) The Scheduled Tribes. no responsibility for the crops or their quality.
3ded. Nevertheless, the amount of work required was
Gluckman, Max. (1960) "Tribalism in Modern such that huge surpluses of food were stored in
British Central Africa." Cahiers d'etudes immense warehouses.
africaines 1: 55-70. Inca men were not required to supply labor
until they had married and had land of their own.
Native American Directory. (1982)
But once children became old enough to do so,
Sahlins, Marshall. (1968) Tribesman. they helped their fathers with the corvee duties
Service, Elman R. (1962) Primitive Social Orga- of his household. The kuraka, or local district
nization: An Evolutionary Perspective. 2d ed. political leader, if he had a large number of

265
TRIBUTE

households to administer within his district (ei- times taken by the king to work for the rest of
ther more than 100 or more than 500, accord- their lives as royal retainers,
ing to different sources), did not have to perform
corvee labor himself. Men were also required to
participate in the Inca military corvee. In addi- Murra, John V. (1967 [1958]) "On Inca Politi-
tion, from time to time, households were re- cal Structure." In Comparative Political Sys-
quired to provide labor for building projects, such terns, edited by Ronald Cohen and John
as roads and fortresses. People were also some- Middleton, 339-353.

266
 Wars take place for many reasons. Some of
these are to exterminate an enemy (as in the
1990s war in the former Yugoslavia between

W
Serbs and Muslims); to take wealth (as in the
war between Iraq and Kuwait); to acquire land
(as in the nineteenth century wars between the
whites and Indians in the United States); over
ideological differences (the war between Iran and
Iraq in the 1980s); self-defense (World War II);
to change the leadership of another group (the
U.S. war against Panama in 1989); to take
women (as among the Yanomamo people); for
warriors to gather personal glory in battle (as
among the Plains Indians in the eighteenth and
nineteenth centuries); to take revenge; and for
other reasons.
A number of anthropologists have also
looked at some of the less obvious reasons why
people go to war. Some anthropologists, for ex-
War is defined as autho- ample, believe that man is by nature warlike, that
WAR rized violence between warfare is instinctive. Other anthropologists have
independent groups pointed to societies in which warfare seems to
(Pospisil 1974:10). We say "authorized" because be a source of entertainment; such seems par-
it is approved by the appropriate social authori- ticularly true of some of the Indian peoples of
ties. For example, if a group of men from New the Great Plains, who fought raids against each
York State went to Canada and attacked the other for horses, prestige, and revenge.
Canadian Parliament, it would not be an act of Another theory as to why people go to war
war since the president of the United States and is the sociobiological theory. This theory states
the U.S. Congress had not approved the attack; that men go to war to increase their reproduc-
rather, it might be a case of external self-redress, tive success, that is, that they work to increase
if the New Yorkers felt themselves wronged by the proportional representation of their genes in
the Canadian government, or feud, if the vio- the next generation. According to this theory,
lence is part of a long-term pattern between sub- successful warriors attract more wives and thus
groups of a society or societies (two families on usually have more children. Also, successful war-
opposite sides of the Canadian-U.S. border for riors kill off other men whose genes dilute the
example); it would also be a violation of Cana- relative proportion of the successful warrior's
dian law in any case. In addition, warfare can genes. One who has done much work on this
only exist between independent groups. If the idea is Napoleon Chagnon.
states of North Dakota and Montana decided Another idea as to why there is war is that
to engage each other with military violence, it people fight to gain material resources. A cross-
would not be a case of war since both states are cultural study suggests that many nonstate soci-
subordinate to the federal government in Wash- ety peoples fight to alleviate short-term food
ington, D.C., which would undoubtedly inter- shortages. A well-known variant of this argu-
cede to end the violence. ment was made by Marvin Harris. Harris's idea

267
WAR

Wars between nations involve purposeful use of organized military force. A state of war exists between Bosnian
Serbs and Croatians that causes death and disruption among civilian populations. Serb refugees who have fled
Croatia enter the Bosnian stronghold ofBanja Luka in August 1995.

that it is the material conditions of life that have warriors, as possible. It is not possible to raise
the greatest effect on the basic culture is known all of the children born because there are often
as cultural materialism. For Harris, cultural ma- food shortages; if all of the children born were
terialism explains why some nonstate societies raised, some would die, and some of these would
frequently engage in war. Some of these societ- be male children. When the men become adults,
ies, it turns out, have very little regular access to they search for wives; finding that there are not
high-quality protein in their diet, protein of the enough to go around, they decide to steal fe-
kind provided by meat. Harris used the case of males from neighboring bands. Of course, the
the Yanomamo Indians of the rainforests of neighboring bands resist, and fighting ensues.
South America to illustrate his theory. Further, the neighboring Yanomamo bands also
The Yanomamo Indians of South America steal women from their neighbors. Thus, the
practice female infanticide because they feel a fighting requires a large number of warriors both
strong need to raise as many men, who can be for defense and for the taking of women from

268
 WAR

other bands. The process is therefore circular and village. So prone to the use of violence were they
repetitive. They need warriors to get women, but that boys were raised to be warriors from a young
must kill female infants to have more warriors, age, and deadly and prolonged blood feuds be-
who need more females as mates and who have tween families were a frequent occurrence within
to go to war to get them. The Yanomamo them- the Jivaro tribe.
selves believe that they go to war simply to ac- The wars that the Jivaro fought against
quire women. But according to Harris, the root neighboring tribes were generally fought to
cause of the warfare is a lack of proper protein avenge some act of aggression against a Jivaro
in the diet. The warfare that the relative paucity person or group. Once begun, however, the ul-
of females causes in turn forces the warring bands timate aim of the Jivaro warriors was to com-
to move away from each other, thus enlarging pletely erase the other tribe from the face of the
the amount of forest uninhabited by people and earth. So long as the other tribe existed, the
increasing the amount of game, and thus pro- Jivaro were in danger of retaliation by its mem-
tein, available to the Yanomamo. War, therefore, bers, and so it is logical that the Jivaro should
indirectly leads to a better diet and less need for try to completely annihilate their enemies.
war. But population increase inevitably causes a Those groups that decided to wage war
dearth of protein in the diet, and the whole cycle would combine and elect an experienced chief
starts all over again. to lead them. The warriors and chief drank hal-
Many anthropologists are less concerned lucinogenic drugs that allowed them to see vi-
with the causes of warfare than with the histori- sions of spirits, who then gave omens as to the
cal effects of colonial powers on indigenous band success of the future military operations. Spies
and tribal societies. In tribal and band societies were sent out to find out how many men the
in many areas of the world, there are no political enemy had, whether they had fortified their
leaders or legal authorities with power over all houses, and what types of weapons they had.
of the individual small groups. This means that The chief, before the raid, told the men to have
the individual groups are independent and no courage and gave them the details of his battle
one has the authority to stop wars between them. plan. The men also took part in a ceremony that
This state of affairs almost always changes when used magic to build courage, the men repeating
colonial powers take control of a region and a memorized dialogue in pairs to each other. The
pacify the area, ending all such hostilities. The warriors also wore special clothing for the raid,
Cheyenne, Sioux, Arapaho, Crow, and other especially a monkey-skin cap and jaguar-tooth
Plains Indians, for example, no longer practice necklace. They painted themselves black, believ-
the raiding of each other's bands and tribes that ing that this gave them the appearance and some
was common in the eighteenth and nineteenth of the supernatural powers of the "iguanchi" (de-
centuries. mons). Men often brought their sons along to
Following is an example of warfare in a tribal observe a real war in order to prepare them to
society. One of the better-described cases of war- become warriors themselves in the future.
fare in a small, non-Western society is that of The Jivaro tried to surprise their enemies if
the Jivaro (also called Jibaro) Indians of eastern at all possible. For this reason, raids were usu-
Ecuador. The Jivaro, until being largely pacified ally made at night or just before dawn. The war-
in recent years, were a fiercely independent riors surrounded a house and killed the occupants
people prone to the use of violence with little as they tried to leave it. If they did not leave the
provocation. So independent were they that each house, the Jivaro set fire to it, forcing them out.
family lived alone rather than with others in a Then they moved on to the next house. When

269
WAR

they couldn't surprise the enemy because the dozen horses, yet one man, Gray-Bull, had be-
enemy's dogs or chickens gave alarm, resistance tween 70 and 90 head at one time. Therefore,
was organized through the use of a signal drum. one must conclude that the Crow men raided
The Jivaro warriors killed all of the enemy, for reasons other than simply acquiring horses,
with some exceptions. Young women were usu- and that those were to gain individual prestige
ally kept alive to be wives of the Jivaro men, and and for excitement.
children were sometimes spared to be raised as Crow women and children were also in-
Jivaro. The others were killed, their bodies mu- volved with the war culture complex. Chil-
tilated, and the heads taken as trophies. dren, both male and female, acquired their
The taking of a head as a trophy was cause names from the famous battles fought by vari-
for a feast afterward, and the head of a coura- ous warriors. Women, when dacing, wore the
geous warrior was the most valued of all. A head scalps that their husbands brought back from
was later "shrunk" by removing the skull, boil- raids. They also displayed their husbands'
ing it, pouring hot sand in it (to remove any re- shields and weapons in public with pride.
maining flesh), and then forming the skin so that Further, the women, through their cries over
it remained recognizably human. the deaths in battle of male members of their
Like the Jivaro, the Crow Indians of the families, acted as principal instigators of raiding
nineteenth-century North American Plains en- for revenge.
gaged in warfare with great determination. And, The men sought and achieved military glory
like the Jivaro, the Crow Indians practiced a form in four accepted manners, the accomplishment
of warfare known as raiding. But the usual rea- of any one of which made one an "araxt-si'wice"
son given for Crow raiding, like the raiding of (honor-owner). One manner was to be the first
other Plains peoples of the time, was to take person in battle to count coup, that is, to touch
horses (and sometimes revenge) from the en- the body of any enemy individual, usually dur-
emy (usually other Plains peoples). However, this ing battle, whether the enemy was wounded,
simple reason hides an entire war culture com- dead, or unharmed (while it is obviously dan-
plex with which the Crow people were frequently gerous and thus indicative of courage for a sol-
preoccupied. Men found that their position in dier to touch an armed enemy soldier in battle,
society, ability to achieve political leadership, and one could count coup on any enemy person at
reputation were based upon their military suc- any time, as when one Crow man crept up to a
cesses. Ability as a storyteller and medical tech- Dakota [a Siouan people, enemies of the Crow]
nique were important, but of little significance camp, found a woman urinating, and killed her).
in comparison with military skill. Men also The second manner was to take from an enemy
found in warfare activities a great source of ex- soldier his bow or gun during a fight. The third
citement and for this reason were very interested was to cut loose and steal a horse tied up at an
in pursuing them. enemy encampment. The final means to mili-
Let us take the acquisition of horses as a rea- tary glory was to act as either the pipe-owner or
son for warfare. If one wanted only to acquire the raid-planner of a raiding party. Achievement
horses, then why did a warrior gain far more of any one of these feats made a man worthy of
prestige by stealing an enemy's tethered horse respect and earned him a place as a herald, next
than for acquiring several free-roaming horses? in rank to chief. Having accomplished each of
Why also did warriors continue to raid for horses the four types of deeds made one a chief. And
even when they had more than enough? One the more times one accomplished each type of
Crow family could not possibly use more than a deed, the more famous one became.

270
 WAR

Boys learned the skills of warfare early. They they stopped, killed a buffalo, and ate it. When
counted coup on animals, encouraged girls to they arrived home, they fired their guns in the
dance with the fur of animals and pretended that air and paraded the captured horses around the
the furs were scalps, and reproduced the military village. It was at this time that the spoils were
societies of adult men in their Hammer Society. divided. Under the rules, the captain could claim
In addition, the boys were made physically fit all of the horses as his own, but he always gave
through athletics. Finally, the boys were prepared most of them to the other men in the party to
for the rigors of warfare by frequently being told avoid charges of greed.
by the men that to become old is a disgrace and When fighting with the specific intent of
that it is far better to die young in battle. killing the enemy, the Crow carried out their
A horse-raiding party often went as follows: raiding differently. The usual reason for raiding
The men would go on foot, each carrying, or to kill an enemy individual was to take revenge
bringing a dog to carry, his moccasins, a small for the killing by the enemy of a Crow individual.
pail, and a rope to tie the captured horses. Most Often, a revenge raid was precipitated by the
parties started out after sunset and sheltered request of a woman to a famous warrior to avenge
themselves with rudimentary windbreaks. Af- the death of her son at the hands of the enemy.
ter they camped for the night, the captain sent The woman would bring gifts to the warrior in
the scouts forth to find an enemy camp. The order to induce him to carry out the raid. Before
scouts did not eat until they found the enemy. the raid took place, the warriors blackened their
When they found the enemy, they returned to faces. When they returned victorious, having
camp holding up their guns as a signal of their killed one or more of the enemy, they were
success. After they came into camp, they kicked treated to a celebration, where the men who had
over a pile of specially collected buffalo chips to earned war honors in the raid were honored.
further signify their success and then they ate. Before they entered their home camp, the first
The members of the war party attached man to count coup on an enemy individual and
magical objects to their bodies and painted their the first person to capture an enemy weapon were
faces so as to improve their magical "medicine." celebrated and had their shirts entirely black-
The leader of the war party then prayed to the ened with a mixture of buffalo blood and two
Sun, promising to build a sweatlodge or give kinds of charcoal. Those who did those same
some other gift in the Suns honor if the Sun deeds second and third had their shirts only half
allowed the members of the war party to return blackened, and those who did these deeds fourth
safely with many horses. had only the sleeves of their shirts blackened.
The men then went on the raid at night. Then the group of warriors camped just outside
They hoped to be able to take enough horses their home camp one last night. In the morn-
that they could all ride back to their own en- ing, they went to their home camp and fired their
campment. This was not only a matter of com- rifles into the air. The women came out and led
fort; the enemy would be chasing them on them back into camp in a special dance. Later,
horseback, trying both to kill them and to re- there was more dancing, feasting, and the sing-
capture their horses. Thus, if not enough horses ing of special praise songs. Celebrations would
were captured, those who had to walk back of- last all of that day and through the night.
ten were killed. The Crow people had greatly different ideas
If the raid was successful, they rode at top about what makes successful warfare than do
speed all night, through the next day, and the the military leaders of modern national armed
next night as well. Finally, on the second day forces. Whereas modern military leaders seek

271
WORLD SYSTEM

some strategic or tactical goal, such as the neu- were mutilated and dragged along the ground
tralization of an opposing force or the capture with a rope.
of some geographic area, the Crow were inter-
ested in horses, revenge, and personal glory.
Further, whereas the miliatry leaders of modern Bohannan, Paul}., ed. (1967) Law and Warfare:
nation-states accept that they will likely lose Studies in the Anthropology of Conflict.
members of their forces in the pursuit of a stra-
tegic or tactical objective, the Crow military Chagnon, Napoleon. (1989) "Response to Fer-
objective was to carry out their warfare with the guson."'American Ethnologist 1989:565-569.
goal of losing none of their members to the en- Ember, Carol, and Melvin Ember. (1992) "Re-
emy. In fact, the Crow military leaders who source Unpredictability, Mistrust, and War."
lost none of their raiding parties in military Journal of Conflict Resolution 36: 242-262.
action were considered superior to those mili-
tary leaders who got more horses or those who Haas,]., ed. (1990) The Anthropology of War.
killed more of the enemy if they lost men in Harris, Marvin. (1995) Cultural Anthropology.
the process. While it is true that the Crow 4th ed.
highly esteemed as brave the individual who
Karsten, Rafael. (1967 [1923]) "Blood Revenge
attacked large numbers of the enemy in a sui-
and War among the Jibaro Indians of East-
cidal rush, the normal ideal was to kill the en-
ern Ecuador." In Law and Warfare: Studies
emy in such a way as to present the least danger
in the Anthropology of Conflict, edited by Paul
to oneself.
Bohannan, 303-325.
That the Crow sincerely and with great
emotion hated their enemies cannot be doubted. Lowie, Robert H. (1956 [1935]) The Crow
The evidence for this may be seen in the way Indians.
that the Crow treated their captives and the en-
Pospisil, Leopold. (1974 [1971]) Anthropology
emy dead. Though it is true that women cap-
of Law: A Comparative Theory.
tives were treated well (they married Crow men
and assumed the same life as a Crow woman),
captive men were often tortured. This was espe-
cially the case when the enemy put up a frus-
trating defense, thereby inflaming Crow
emotions. For example, there is the case of one
fight with a Blackfoot group, in which the The basic premise of the
Blackfoot built a defensive obstacle of logs and WORLD SYSTKM world system set of
stones and held off the Crow for a long while. theories is that the world
When the Crow finally prevailed, they tortured has one giant economic system that involves
their Blackfoot captives for a long time before nearly all people on Earth and that is divided up
they slaughtered them. The corpses were then between industrially developed nations (the First
beaten and mangled. In another case, a Blackfoot World [the United States, Canada, the coun-
man was caught by the Crow, hanged from a tries of western Europe, Australia, New Zealand,
tree by the neck, shot at by the men, and perfo- and Japan] and Second World [the former So-
rated with sharp sticks by the women. And it viet Union and the Soviet Bloc countries of east-
was often the case that the bodies of enemy dead ern Europe]) and the industrially undeveloped

272
 WORLD SYSTEM

nations (the Third World [the rest of the world]). elite is like the country in a country-colony
The ideas behind the theory of the world sys- relationship.
tem ultimately grew out of Marxist thought and The ideas of a "core" and a "periphery" in
theories of political economy. the world economic system were introduced by
The idea of world system theory depends Immanuel Wallerstein. The core countries are
upon a concept of development and especially a those in the First World, the major capitalist
concept of underdevelopment. When the Eu- powers in the world economic system. The pe-
ropean capitalists began their colonization of the riphery consists of those countries that supply
rest of the world, it was in large part to acquire raw materials and cheap labor. There is also a
wealth. This wealth has fueled the technologi- "semi-periphery" of countries that were under-
cal and industrial growth of First World nations developed but that are presently partially devel-
since then. The colonies, by and large, have re- oped, such as South Korea, Taiwan, Argentina,
mained technologically and industrially behind and Brazil.
in their development; they have not "modern- The core countries benefit from the world
ized" and therefore remain "underdeveloped." In economic system, but the peripheral countries
many Third World countries that are former remain poor even while supplying the raw ma-
colonies of European nations, only the elite of terials and cheap labor that make core nations
the countries has done well financially, while wealthy. The division of labor that is a basic fea-
most of the rest of the population remains poor. ture of capitalism is manifested in an interna-
While there was undoubtedly poverty and tional division, just as the entire economy is
starvation in what are now Third World nations international. While countries can over time go
prior to the coming of the Europeans, the world from being core countries to being peripheral coun-
system theorists say that the continued poverty tries, and vice versa, the system remains the same.
in those countries after the coming of the Euro- The major problem with this theory is that
peans is due to certain basic features of capital- it does not take into account the factors within
ism. The world system theorists explain that the any particular country that keep it a peripheral
Third World has continued in poverty because country or a core country, or especially why any
the capitalist First World has kept the majority one country in particular, such as Japan, goes
of the world's technology and industry for itself from being a peripheral country to being a core
and relegated the Third World to producing country, as Taiwan and South Korea seem likely
cheap raw materials and providing cheap labor. to do in the future. A second problem is that the
In other words, the Third World countries con- theory explains all poverty as a result of under-
tinue to be treated as colonies, despite the fact development. In Peru, for example, the legal and
that they have won political independence. The political systems are so inefficient that most
analogy to colonies and the relationship between people prefer to work and trade in the illegal
a country and its colonies is frequently used by economy. This has the effect of placing the
world system theorists. For example, while the country's tax burden onto the legal businesses,
urban centers of most Third World countries are which cannot produce enough wealth to sup-
developed, at least for the elite, the rest of these port adequate development efforts by the gov-
poor countries remain underdeveloped, and these ernment. Further, the illegal economy does not
places are often referred to as "internal colonies" operate efficiently because their contracts can-
of a Third World country, thereby making the not be enforced by the legal system, and because
analogy that the Third World country's central the entrepreneurs can be arrested and their

273
WORLD SYSTEM

businesses closed. So, as a result of these purely Wallerstein, Immanuel. (1974) The Modern
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 ILLUSTRATION
CREDITS

9 David Maybury-Lewis/Anthro-Photo 149 Library of Congress

11 UPI/Bettmann 150 Honore Daumier, Bettmann Archive
12 UPI/Bettmann 161 UPI/Bettmann
17 Bettmann Archive 166 Bettmann Archive
21 Irven De Vore/Anthro-Photo 173 Bettmann Archive
25 AP/Wide World 179 Bettmann Archive
29 Bettmann Archive
182 UPI/Bettmann
34 Tom Salyer, UPI/Bettmann
196 Bettmann Archive
37 Bettmann Archive
202 Bettmann Archive
40 Bettmann Archive
209 UPI/Bettmann
51 Bettmann Archive
215 Reuters/Bettmann Newsphotos
64 UPI/Bettmann
67 Yasuki Nagao, UPI/Bettmann 224 AP/Wide World Photos
68 Muzammil Pasha, Reuters/Bettmann 226 Reuters/Bettmann
79 Sheba Chhachhi 247 Bettmann Archive
110 Bettmann Archive 258 Reuters/Bettmann
126 Bettmann Archive 262 AP/Wide World Photos
130 Bettmann Archive 269 Srdjan Ilic, AP/Wide World Photos

285
 Amba (Uganda), 236
American Indians. See Native Americans
American School of Legal Realism, 146,148
Amhara (Ethiopia), 69
Amniocentesis, 79
INDIA Analogy principle, 151-152
Anarchy, 10
Ancient Society (Morgan), 168
Anthropology. See Legal anthropology; Political
anthropology
Aoba (Ambae) island, 47
Apache Indians, 269
Argentina, 274
Aristocracy, 10
Ashanti (West Africa), constitution of, 48-50
Associations
as governing body, 11,13
legal authority, 13-14
voluntary membership, 10-11
Asylum, law of, 28
Athens, 75
Abandonment
Australia, 42,158-159
defined, 3
Authority
and disownment, 75-76 of big men, 19, 22-24
Abiera village (New Guinea), 16-18
of chief, 30-31, 48-49
Acephalous societies, 3-4. See also Segmentary
in common versus civil law, 42
lineage societies
diffuse system of, 15-16
Adoption
formal versus informal, 14-15
Hindu legal decision, 4-7,105-107
of headmen, 14-15, 95
as legal fiction, 148
jurisdiction of, 117-118
Adultery, 164,176, 221-222 as legal decision maker, 133-136,147-148
Adverse possession, 7-8
litigation before, 159-160
Africa in nonstate societies, 251
age-set societies, 8-10 power of, 15
lineal corporations, 62
reasonable man standard, 126
natives' displacement, 187
rebellion against, 214-216
oaths and ordeals, 181,184,185
res judicata of, 219-220
slaves from, 246-247
sanctions by, 133-134
tribalism, 264
See also Big Men; Chiefs; Headmen;
African Political Systems (Fortes and Evans -
Leaders
Pritchard, ed.), 195
Autocracy, 16-18. See also Monarchy
Age grades, 8-9
Avignon, Council of, 27
Age-set societies, 8-10
Ayoundaw faction (Burma), 81-84
Agrarian Code (Mexico), 157
Aztecs, 264
Aguiyi-Ironsi, Johnson, 63, 64
Albanians, 87
Algonkian Indians (North America), 19 Badaga tribe (India), 265
Amazon Basin, 188 Balewa, Abubakar Tafawa, 63

287
INDEX

Band societies Bunyoro society (Africa), 30

constitutions, 48-50 Burma (Myanmar), 81-84,195
factionalism, 84
fissioning, 89 Calabrians, 87
four features of, 19-20 Camatuet (Naskapi Indian), 135
international law in, 114-116 Canada
law enforcement, 134-136 adoption, 4
leaders, 22-24, 95-96 adverse possession, 8
legal evolution, 143,144 common law system, 42
patronage systems, 191 jurisdictional issues, 117
undivided families, 21-22 legalistic system, 150-151,154
usufructary rights, 211-212, 263 Micmac Indian affairs and, 15, 68,104-105,260
See also Big men; Headmen property ownership, 211
Bangladesh, 249 U.S. treaties with, 111, 260
Banks, 78 Canadian Criminal Code (1987), 151
Barotse (Zambia), 90-91, 213 Canadian Indian Act, 104, 117, 191
Bastille, 153 Canon law, Roman Catholic, 27-28
Bedouin (Middle East), 62 Cape Breton Island, 14-15,19. See also Micmac
Bentham, Jeremy, 145 Indians
Betrothal contract, 58-59,163 Capital punishment, 28-30
Biafra, 63, 64 Capitalism
Big men Communist opposition to, 25
authority of, 14-15, 19 Marxist criticism of, 165,167-168, 201
colonial powers and, 47 world system theory on, 197-198, 273
kinship ties of, 20 Cargo cults, 223-224, 225
personal qualities of, 22-24 Carneiro, Robert, 253
See also Chiefs; Headmen Caso, Pedro, 157-158
Birempon (Ashanti group), 48 Caste systems, 39,175
Black Lolo (China), 246 Castro, Fidel, 18, 173
Black market, 24-26 Catholic Church. See Roman Catholic Church
Blackmail, 78-80 Cayuga (Iroquois nation), 52
Blessingway Singers (Navajo Indians), 16 Centralization Program (Cape Breton), 261-262
Boas, Franz, 194 Charisma, 19, 157
"Body of Men" association, 13 Charter myth, 30
Boers, 54 CHEKA (All-Russian Extraordinary Commission
Bogadi (bride-price), 59 for the Suppression of Counterrevolution and
Bohannan, Paul, 146 Sabotage), 208-209
Booth, John Wilkes, 152 Cherokee Indians (Great Plains), 115
Boxer Rebellion, 214-216 Cheyenne Indians (Great Plains)
Brahmans. See Hindus chiefs' origins and functions, 31-32
Branch Davidians, 224, 225 Choctaw treaty with, 115
Brant, Joseph, 53 inheritance, 103
Brave Chief (Pawnee), 250 law enforcement, 134-135
Brazil, 187-188, 244, 247, 273 marriage, 163
Bribery, 198,199 military societies, 31,171
Bride-price, 59, 155,156,164, 225, 227 property ownership, 192
British Parliament, 172 supernatural sanctions, 99-100
Buffalo Chief (Cheyenne), 171 theft remedy, 259

288
 INDEX

The Cheyenne Way (Llewellyn and Hoebel), 140, economic interests of, 38, 39,165, 252
146 versus group action, 41
Chickasaw Indians, 115 membership stability of, 38-39
Chiefs political economy analysis of, 197, 201,
of age-set societies, 8 203
formal authority of, 30-31, 48-49 social, 39,118
of Iroquois Confederacy, 52, 53 Cochiti Pueblo (New Mexico), 208
origin and functions, 31-32, 49-50,171 Collective liability, 41-42, 44-45, 62
Childe, V. Gordon, 38 Colonial rule
Children big men and, 47
disownment of, 75-76 legal authority of, 4
of headmen, 95 pacification processes of, 187-189
as heirs, 43,103-105 by Third World elite, 273
legal rights, 225-227 warfare influence of, 269
legitimacy, 154-156 Comanche Indians, 32
marrying siblings, 130-131 Comity principle, 109
murder of, 98 Common law, 37, 42-43, 77. See also
parental responsibility and, 43-44,189-190 Civil law
as patronage clients, 191 The Communist Manifesto (Marx and Engels),
as slaves, 244 165,167
Ch'in Dynasty (China), 153 Communist revolution (1917), 78,164-165,167,
China 168,169
abandonment law, 3 Comparative law, 43-46
black market, 25-26 Concordantia Discordantium Canonum, 27
Boxer Rebellion, 214-216 Condominium law, 46-47
domestic slavery, 246 Confederation of the Five Nations (Iroquois), 50,
family maintenance law, 85-86 52-53,115
filial piety protection, 45-46 Confession admissibility, 47-48
fraud statutes, 90 Confucianism, 3, 45-46, 153
Great Britain's treaty with, 261-263 Constantine the Great, 190
legalistic system, 153-154 Constitutions
patricide, 179-180 Ashanti, 48-50
Ch'ing government (China), 214, 215-216 defined, 48
Choctaw Indians (Mississippi region), Iroquois Confederacy, 50, 52-53
115 Orange Free State, 53-58
Circumscription theory, 253 Contracts
Citizenship, 33, 34-37, 54 betrothal, 58-59,163
Civil law civil versus common law, 43-44
common law versus, 37, 42-43 labor, 60
criminal law versus, 37, 44-45 lease, 138-140
homicide claims of, 37, 97,100-101 with magicians, 60-61
parental responsibility in, 43-44 marriage, 59
See also Common law of patronage systems, 190-191
Civilization, 37-38. See also States property use, 59-60
Class trade, 59
anthropology focus on, 39-41 of Tswana people, 58-61
aristocratic, 10 validity of, 58
differential treatment of, 68-69 Cooper, Joe, 189

289
INDEX

Corporations Democracy, 75
international law and, 114 Descent groups. See Kin-based cultures
legal fiction of, 148,152 Despot, 16-18
legal liability of, 44-45, 62 Dharma Protector Gods (Tibet), 206-207
ownership and function of, 61-62 Dialectical materialism theory, 165, 167
Corvee duties, 265-266 Dice, rolling of, 207-208
Council of Forty-Four (Cheyenne), 31, 32 Differentiation, 228
Counting coup, 232-233 Dinka (Sudan), 236, 237
Coup d'etat, 63-65 Diplomatic immunity, 192
Covenants, 244 Discrimination, 228
Cree (Canada), 174 Disownment, 3, 75-76
Creek Indians, 115 District Native Court (Yako), 14
Crimes Divorce, 42,164, 214
abandonment, 3 Do Ci, 83
behavior categories of, 65-67 Dog Men (Cheyenne), 32,171
black market trading, 24-26 Dogon (Mali), 98-99,185
bribery, 198, 199 Dominican Republic, 244
causes of, 69 Dowries, 78-80
civil litigation on, 37 DribeigJ.H.,70
confessions to, 47-48 Durkheim, Emile, 141-142,144-145,169,194
embezzlement, 199-201 Dutch, 54
equal justice for, 127
and evidence, 152 Egypt, 130-131, 217-219
extortion, 78-80 Embezzlement, 199-201
extradition treaties on, 111-114 Eminent domain doctrine, 78
failure to report, 172 Engels, Friedrich
fraud, 90 anthropological sources of, 168-169, 194
mitigating circumstances of, 68-69 on capitalism, 165,167
ordeals' resolution of, 183-185 class consciousness of, 39, 201, 203
punishments for, 28-30, 68,133-134 criticism of, 169-170
repeat offenders, 216-217 social evolution theory, 165, 167-168,169-170,
self-redress resolution of, 237-239 251-252
theft, 257-259 Environmental circumscription, 253
trespass, 263 Equity, 77, 126
unofficial control of, 175,176 Escarra, Jean, 45
See also Homicide Eskimo (Anaktuvuk Pass), 23-24, 84
Criminal law, 37, 44-45,144 Evans-Pritchard, E. E., 4,195
Crow Indians (Great Plains), 181,182,232-233, Evidence admissibility, 152
270-272 Execution, 28-30
Curing rituals, 16 Expropriation, 77-78, 82
Customary law, 70-73 Extended families, 20, 21-22,143, 255
Extortion, of dowries, 78-80
Dakota Indians, 32 Extradition treaties, 111-114
Dalai Lama, 118,129
Datta homan ceremony, 5-7 Factionalism, 81-84. See also Fission
De Dreux, Peter, 27-28 Families
Debt bondage, 244 extended, 20, 21-22,143, 255
Deganawida legend, 50, 52-53 marriage between, 163

290
 INDEX

nuclear, 20, 255 Ghengis Khan, 16

See also Kin-based cultures Ghost Dance Religion (Native Americans),
Family law 223, 225
adoption, 4, 148 Gluckman, Max, 146,195,197, 264
application of, 84-85 Government
on children's rights, 225-227 aristocracy, 10
on legal legitimacy, 154-156 autocracy, 16-18
maintenance requirements of, 85-86 democracy, 75
on parental rights/responsibilities, 43-44, expropriation by, 77-78
154-156 gerontocracy, 93-94
Roman Catholic jurisdiction, 27 monarchy, 129-131, 172-173
See also Marriage oligarchy, 183
Fathers. See Parents plutocracy, 10, 193
Females political corruption, 198-199
as domestic slaves, 245, 246, 247 property ownership, 77-78, 211
as inheritance, 9-10 theocracy, 259
Feuds Gowon, Yakubu, 64
homicide and, 100 Gratian (Camaldolese monk), 27
safeguards against, 88, 239 Great Britain
six levels of, 86-87 colonies, 47, 54
as war, 267 common law, 42, 77
See also Warfare constitution, 48
First World, 273, 274 litigation in, 160
Fission, 88-89, 236. See also Factionalism as monarchy, 129,172
Flathead (Oregon), 246 Nkrumah and, 65
Folk law, 70-73 slavery emancipation, 248
Foreign cultures, revitalization movements and, treaties with, 260, 261-263
223-224 Great Peace (Iroquois), 50, 53
Fortes, Meyer, 4, 62,195 Greece, 10, 75
Foster parentage, 4 Greenspan v. Slate (Supreme Court of New Jersey,
Fourth World, 197 1953), 43-44
Fox club (Crow), 232-233 Grotius, Hugo, 46,109
Fox Soldiers (Cheyenne), 135, 171 Groups
France, 47 characteristics, 173-174
Fraud, 90 class versus, 38-39, 41
French, Rebecca, 220 collective liability of, 41-42
French Revolution, 153 factionalism, 81-84
Fried, Morton, 197 feuds, 86-88
Friedrich, Paul, 157 fissioning, 88-89
Fusion, 88-89 human rights of, 227-228
legal decisionmaking, 147
Gardening societies. See Horticultural societies membership, 174
Garia (New Guinea), 238 unofficial legal systems of, 174-175
General law, 108 See also Kin-based cultures; Societies
Geneva Convention, 109 Guardianship, 94
Germany, 44-45, 93,114, 126,142-143 Gubser, Nicholas]., 24
Gerontocracy, 93-94 Gush Emunin (bloc of the faithful), 225
Ghana, 65 Gusii (Kenya), 212

291
INDEX

Hacienda system, 243-244 Hungarian People's Republic, 172

Han Chinese, 246 Hunter/gatherer societies, 19-22, 28, 95-96, 236
Handsome Lake Religion (Iroquois), 224-225 Hydraulic theory, 252
Harijans (low caste people), 175
Harris, Marvin, 253 Ibo (Nigeria), 63-64
Hausas (Nigeria), 63 Ifugao (Philippines)
Headmen adoption, 4
in age-set societies, 8 crime sanctions, 98,127
authority of, 14-15,19, 95 legal legitimacy, 156
of Cheyenne, 171 ordeals, 184
children of, 95 property ownership, 211
factionalism and, 82, 83 reasonable man concept, 213
law enforcement by, 136, 221 Illness, sorcery and, 60-61, 250
of Navajo Indians, 15-16 Inca (Peru), 133,193,264, 265-266
personal characteristics, 19, 95 Incest, 130-131,135
succession of, 20-21, 89, 95-96 India
Hegel, Georg Wilhelm Friedrich, 167 adoption law, 4-7
Hiawatha legend, 50 caste systems, 39,175
High Court of Tibet, 118 extortion of dowries, 78-80
Highest Ecclesiastical Office (Tibet), 117-118 inheritance, 105-107
Hindus slavery, 244, 249
adoption decisions, 4-7,105-107 Indian Affairs and Northern Development,
dowry tradition, 78-80 Department of (Canada), 104,117
Hitler, Adolf, 15,18,126,173 Indian Protection Service (SPI, Brazil), 187-188
Hoebel, E. Adamson, 90,140,144,146, 251 Individual rights, 228
Hohfeld, Wesley Newcomb, 91-92 Indonesia, 188
Holmes, Oliver Wendell, 146, 148 Infanticide, 79, 98
Homicide Inheritance
and banishment, 53 adoption and, 4,105-107
cause, 69 of debts, 59
as civil offense, 37, 97,100-101 defined, 103
collective liability for, 42, 62 of fathers'wives, 9-10
by feuding groups, 86, 87-88,100 of intestate estate, 42-43,103-104
punishment for, 28, 68, 99-100 legal legitimacy and, 154,155,156
in royal families, 131 Innocent IV, 28
types of, 97-98, 99 International Court of Justice, 108,109
Hong Kong, 42 International law
Horticultural societies in band societies, 114-116
evolution theories on, 144, 253 extradition concerns, 111
slavery, 245 jurisdictional issues, 109,117
sorcery, 250 sources of, 108-109
tribes, 263-265 International Law (Maine), 109
Hot bolo ordeal, 184 Intestate inheritance, 42-43, 103-104
Hugo, Victor, 150 Iraq, 108
Human rights Irish Republican Army, 257
Universal Declaration of, 227, 228-232 Iroquois Indians (New York state)
violations of, 227 Confederacy, 50, 52-53,115
See also Legal rights messianic movement, 224-225

292
 INDEX

Irrigation systems, and state status, 252 Killik River people (Alaska), 84
Islamic cultures Kin-based cultures
divorce, 164 bands, 20
Pakistani-Qur'an legal dilemma, 119-125 bilineal descent groups, 11
slavery in, 245, 248 capital punishment, 29
Israel, 225 charter myth of, 30
Istanbul, 248 corporate lineages, 62
lus asyli (law of asylum), 28 defined, 41
lus gentium (general law), 108 extended families, 20, 21-22, 143, 255
feuding in, 86-88
Japan, 34-37, 48,129,160-162, 274 fissioning in, 89
Jay Treaty (1794), 261 legal legitimacy in, 155-156
Jesuits, 216 matrilineal, 52
Jews, 225 oaths in, 182
Jivaro (Ecuador), 269-270 political corruption in, 198-199
Jones, Jim, 224 segmentary lineages, 3-4, 235-237
Judicial precedents, 42, 108 tribes, 263-265
Jural correlatives, 91-92,148,149 See also Bands; Tribes
Dejure Belli ac Pads (The Law of War and Peace, Kingship. See Monarchy
Grotius), 109 Kiowa Indians, 32
Jurisdiction Kohler, Josef, 145
of canon law, 27-28 Konkomba (Togo), 236
defined, 117 Koran (Qur an), 119-125, 248
in international law, 109,118 Korea, 126
and personality principle, 118,192-193 Koresh, David, 224
and territorial principle, 117, 257 Kota tribe (India), 265
Jurisprudence Kou Khin Maung, 83
definitions ajid categories of, 118-119 Kou Swe, 83
Islamic, 119-125 !Kung Bushmen (Africa), 20-21
Justice Kuria (Tanzania), 164, 225-227
equity goal, 77, 126 Kurumba (India), 265
of legal principles, 127 Kuwait, 108
procedural, 145 Kwakiutl Indians (northwest North America), 254
and reasonable man standard, 126,146,
213-214 Land. See Real property
theories of, 145-146 Land Nationalization Act (Burma), 82
Justinian Code. See Roman law Last Bull (Cheyenne), 135,171
Lausanne Convention, 109
Kalinga (Philippines), 33-34, 68,184-185, 213 Law
Kaoka (Guadalcanal), 221 canon, 27-28
Kapauku Papuan (New Guinea) civil versus common, 37, 42-43
big men, 22-23 codification of, 142,143
economic sanctions, 134 comparative, 43-46
homicide, 97 condominium, 46-47
international law of, 115-116 confession admissibility, 47-48
justice concept, 126, 145-146 criminal, 37, 44-45, 144
Das Kapital (Marx), 167 customary versus authoritarian, 70
Khmer Rouge, 93 enforcement of, 13-14, 134-136, 171

293
INDEX

Law (continued) Legal hearings, 203-204, 206-208

evolution theories of, 143-145 Legal pluralism, 46,173-176
four criteria of, 133-134 Legal realism, 146,148
functions of, 90-91 Legal relationships. See Jural correlatives
international, 108-109, 111, 114-115,117 Legal rights
jural versus scientific, 141 of children, 225-227
and justice, 119,125-126,145-146 defined, 148
as legal promise, 58, 61 versus duty, 91,148
legalist system of, 149-150 inpersonam and in rem, 148-149
methods to change, 143-144 of legitimacy, 154-156
personality principle of, 27, 117, 192-193 of ownership, 186
procedural, 203-208 of parents, 43-44,189-190
Roman, 27, 77,108,109,142,189-190 slaves' lack of, 246
on slavery, 246 See also Human rights; Ownership
territorial principle of, 117, 257 Legalism
unofficial, 174-176 Chinese, 153-154
See also Civil law; Common law; Contracts; legal fictions of, 143,148,152
Family law; Marriage; Real property rules-based emphasis of, 149-150,151-152
Lawrence, Peter, 238 Legislation, 42,141-142,144,150-151, 260
Leach, Edmund, 194, 195 Legitimacy
Leaders legal, 154-156,163, 225-227
autocratic, 16-18 political, 156-158
as decisionmakers, 14,136 Lenin, Vladimir, 39, 78, 208-209
legitimacy of, 156-158 Leopard Spirit (Yako), 13
of Trobriander, 136-138 Leopard-Skin Chief (Nuer), 100-101
See also Big men; Chiefs; Headmen Lhasa, Tibet, 118
League of Nations, 109 Li (Confucian concept), 153,154
Lease, 138-140 Liability. See Collective liability
Legal anthropology Libyan Bedouins, 87
central issues of, 140 Licenses, 158-159
comparative method of, 46 Lincoln, Abraham, 152
historic figures of, 141-146 Lineages. See Kin-based cultures
Legal authority. See Authority Litigation, 159-162
Legal decisions Llewellyn, Karl N., 140,146
basis of, 133-134 Louisiana, 37
definition and characteristics, 147-148 Lowie, Robert, 251, 252
final, 219-220 Lozi (Africa), 146
Gusii land ownership, 212 Lugbara (Uganda), 236
under international law, 108,109, 111, 114-116 Lumpwood club (Crow), 232-233
Islamic, 119-125,164
jurisprudence study of, 118-119
Rhodesian, 138-140 Mafia law, 174
self-redress in India, 239-243 Mafisa cattle (borrowed cattle), 59-60
Tanzanian, 70-73 Magic, 249. See also Sorcery
Tibetan, 206-207 Magna Carta, 227
See also Jurisprudence Maharashtra (India), 79
Legal fictions, 143,148,152 Maine, Henry Sumner, 109,143-144,193-194

294
 INDEX

Males Melanesia, 188-189, 223-224, 225

in age-set societies, 8-10 Membership
crime by, 69 in associations, 10-11
on Iroquois Confederacy Council, 52 in band societies, 19, 20
as leaders, 19-20, 32 class, 38-39
in slavery, 247 of groups, 174
Malinowski, Bronislaw, 30, 86 Mentally ill, 94
Maliseet Indians (northeast United States), Messianic movements, 224-225
115 Mexico, 191, 243-244
Mana (supernatural power), 129-130 Micmac Indians (Canada)
Mandari (Sudan), 191, 236 adoption, 4
Manumission, 246, 248 Canadian treaty with, 260-261
Manusmriti (Hindu text), 78 crime and punishment, 68,134
Mao Zedong, 15,18,173 feuding safeguards, 88, 239
Maori (New Zealand), 228 inheritance laws, 104-105
Marriage international law of, 115
in age-set societies, 8, 9-10 leaders, 14-15,19, 20, 23, 93-94
arranged, 163 legal decisionmaking, 126-127
band membership and, 20 litigation, 160
and betrothal contract, 58-59 marriage, 163
and bride-price, 59,155,156,164, 225, ownership rights, 186
227 patronage systems, 191
canon law on, 27 self-redress resolution, 238-239
contract, 59 theocracy of, 259-260
and divorce, 42,164, 214 unjust legal case, 152
and dowry extortion, 78-80 Middle East, 62, 235, 248, 249
in endogamous groups, 39 Migratory Birds Act Treaty, 260
as leadership criteria, 137 Military
as legitimacy determinant, 154-156,163, coups, 63-65
225-226 personality principle and, 192
and servitude debts, 243 Military societies
of slave women, 245, 246 chiefs, 32, 53
societal differences, 163-164 hunting decisions, 31, 170-171
Marshall, Donald, 15 law enforcement, 134-135,171
Marx, Karl warfare activities, 171
anthropological sources of, 168-169 Millenarian movements, 223-224
on capitalism, 165, 167-168, 201 Les Miserables (Hugo), 150
objectives of, 164-165 Misprision, 172
political economy analysis, 201, 203 Mohawk (Iroquois nation), 50, 52
social evolution theory, 165,167-168, Monarchy
169-170, 251-252 Ashanti, 48-50
Materialism, theory of, 165,167 defined, 172-173
Matoto (New Guinea despot), 16-18 succession in, 129
Mauritania, 248 supernatural powers of, 129-131
Maya, 264 See also Autocracy
Mbuti (Africa), 89 Montenegrins, 87
Mediterranean cultures, feuding in, 87-88 Montesquieu, C. L. J. de Secondat, 141-142,169

295
INDEX

Morality unavailable data on, 169

versus legal obligation, 3, 43-44 warfare in, 269-272
Natural Law and, 179-180 Noriega, Manuel, 28
of older leaders, 93 North America, 187,191, 197,198, 250. See also
Morgan, Lewis Henry, 168-169,194 United States
Morocco, 249 Northern Crazy Dogs (Cheyenne), 171
Mothers. See Parents Norway, 111-114
Mpanyimfo (Ashanti elders), 48, 49 Nova Scotia, 14-15
Mudd, Dr., 152 Nuclear families, 20, 254
Multiplicity of legal levels, 46,173-176 Nuer (Sudan), 62,100-101, 213, 236
Murder. See Homicide Nunamiut Eskimo (Anaktuvuk Pass), 23-24, 84
Myanmar (Burma), 81-84,195 Nyakyusa (Africa), 8-10
Nyamwezi (Tanzania), 176

Naskapi Indians (Labrador)

contracts, 61 Oaths, 181-183, 207. See also Ordeals
headmen, 96 Obligatio relationship, 133
inheritance laws, 103-104 Oceania, 188-189
law enforcement, 135-136 Okenga (association), 13
usufructary rights, 211-212, 263 Old Man Meat Offering (Pawnee), 250
Natani (Navajo chief), 16 Old Testament, 227
Native Americans, 223,228, 246, 247, 264, 265 Oligarchy, 183
Native Criminal Code (New Hebrides), 47 Oneida (Iroquois nation), 52
Nativistic movements, 223 Onondaga (Iroquois nation), 50, 52, 53
Natural Law Orange Free State, constitution of, 53-58
basis of, 45, 91,141,179 Ordeals, 181,183-185, 208. See also Oaths
international law and, 108-109 The Origin of the Family, Private Property and the
justice and, 127 State in Light of the Researches of Lewis H.
Montesquieu on, 141 Morgan (Marx and Engels), 169
moral standards and, 179-180 Orphans, 94
Natural resources, warfare over, 253, 268-269 Ostyak (Siberia), 181
Navajo Indians, 15-16 Ottoman Empire, 199-201, 248
Nazi regime, 93,126,142-143 Ownership
Nepal, 249 by adverse possession, 7-8
New Brunswick, 15 corporate, 62
New Economic Policy (Soviet Union), 78 defined, 185-186
New Guinea, 16-18,223-224 by expropriation, 77-7'8, 82
New World, slavery in, 247-248 hacienda system of, 243-244
New Zealand, 42 of personal property, 192
Newfoundland, 259 of real property, 211, 212, 244
Nigeria, 11,13-14, 63-65 versus usufructary rights, 211-212, 263
Nkrumah, Kwame, 65
NKVD (People s Commissariat for Internal
Affairs, Soviet Union), 208, 209 Pacification, colonial, 187-189
Non-Western cultures Pakistan, 119-125, 249
classification of societies, 264 Palestine, 225, 257
homicide differentiation in, 97-98 Palestine Liberation Organization, 257
slavery in, 245, 246, 248-249 Panchayats (traditional legal authority), 175

296
 INDEX

Parents on leaders/authorities, 15, 22

adoption by, 4 legal pluralism theory, 173-174
child disownment by, 75-76 on legalism, 149
inherited estates of, 43,103-105 terror definition, 257
legal versus moral responsibility of, 43-44 Pound, Roscoe, 119, 145
legitimacy rights/duties of, 154-156, 225-227 Power
murder of, 98,179-180 of authority, 15
and patria potestas, 189-190 of autocratic leaders, 16-18
Passamaquoddy Indians (northeast United States), of chief, 30-31
115 defined, 203
Patria potestas, 189-190 versus liability, 92
Patricide, 179-180 See also Authority; Leaders; Supernatural
Patrilineal principle, 226 powers
Patron-client relationships, 190-191, 246 Priests, political power of, 259-260
Pawnee Indians (Great Plains), 250 Procedural law, 203-208
Penal officers, 134 Product liability, 44-45
Penobscot Indians (northeast United States), 115 Promises. See Contracts
Peonage, 243-244 Property. See Personal property; Real property
People's Republic of China. See China Public opinion, 135-136,138
People's Temple (Jonestown, Guyana), 225 Pufendorf, Samuel von, 46
Permanent Court of International Justice, 109 Punishment. See Sanctions
Personal property, 103-107, 192, 211. See also Real Purges, 208-209
property
Personality principle of law, 27,117, 118,192-193
Peru, 249, 274 Qing Dynasty (China), 90
Philippines, 4, 199, 249 Quran (Koran), 119-125, 248
Pine Tree Chiefs (Iroquois Confederacy), 53
Plutocracy, 10, 193
Pokala responsibility, 137, 138 Radcliffe-Brown, A. R., 194-195
Pol Pot, 18, 93 Rank, 254, 259. See also Status
Police, 134 Rape, statutory, 148, 152
Political anthropology Real property
American/European influences, 194-195 adverse possession of, 7-8
class focus of, 39, 201, 203 of corporations, 62
definition of state, 251 defined, 211
social evolution theories, 193-194, 251-252 expropriation of, 77-78, 82
societal equilibrium studies, 195, 197 inheritance of, 103-107
world system theory, 197-198, 272-273 leased, 138-140
See also Legal anthropology ownership of, 185-186, 211, 212, 244
Political corruption, 198-199 patria potestas rights over, 189-190
Political economy, economic class foundation of, versus personal property, 192, 211
197, 201, 203, 273 rights in rem against, 149
Polynesia, 129-130 servitus on, 244
Portuguese (Timor), 188 Reasonable man standard, 126,146, 213-214
Pospisil, Leopold Rebellion
comparative method of, 46 Boxer, 214-216
justice theory, 145-146 and coup d'etat, 63-65
law definition, 133 Yaqui, 216

297
INDEX

Recidivism, 216-219. See also Capital punishment; for frivolous lawsuit, 160-162
Crimes for homicide, 28, 68, 98-100
Red Jacket (Iroquois chief), 53 as law criteria, 133-134
Regina v. Anderson (Great Britain, Court of in legalistic societies, 153
Criminal Appeal, 1868), 109 and mitigating circumstances, 68-69
Republic of China. See China and personality principle, 193
Res judicata, 219-220 punitive versus restitutive, 145,175
Revenge sorcery as, 138
capital punishment as, 28 for theft, 257-259
as cause of war, 270,272 types of, 68
by corporate group, 62 unofficial, 175, 176
defined, 220 Sanctuary, 28
feud as, 86, 87-88,221 Sante Mawiomi (Micmac Grand Council),
against homicide, 42,100, 221 259-260
intervillage raids as, 221, 269, 270-271 Sarakatsani (Greece), 87-88
to save face, 221-222 Savigny, Friedrich Karl von, 142-143
Revitalization movements, 222-225 Scott, James C., 198
Revivalistic movements, 225 Second World, 272
Rhodesia (Zimbabwe), legal decisions in, 138-140, Segmentary lineage societies, 3-4,
204-206 235-237
Rice-chewing test, 185 Self-redress
Right of way, 245 defined, 237-238
Rights. See Human rights; Legal rights India's legal decision on, 239-243
Rivalry, 232-233 by Micmac Indians, 238-239
Roman Catholic Church, 27-28,158,216, by Tikopia, 257-258
259-260 Seminole Indians, 115
Roman law Seneca (Iroquois nation), 50, 52
as civil law, 27 Serbs, 87
divine source of, 45 Service, Elman, 197, 252
equity system of, 77 Servitude, 60, 243-244, 265-266
international law and, 108,109 and slavery, 245-249
and patriapotestas, 27,189-190 Servitus, 244-245
and Volksgeist, 142 Shield Soldiers (Cheyenne), 135, 171
Romania, 249 Ships, jurisdiction on, 109
Royal Canadian Police, 15 Shona (Zimbabwe), 154-156
Rundi (Zaire), 185 Sicilians, 87
Russia, 21-22,163-164. See also Soviet Union, Singers, as authority, 16
former Sioux Ghost Dance Religion, 223
Slavery, 245-249
and servitude, 60,243-244, 265-266
Sacred Arrows (Cheyenne), 31 Social circumscription theory, 253
San (Botswana), 89 Social evolution theory, 165,167,168-170,193-
Sanctions 194,251-252
for adultery, 164,176 Societies
and bribery, 199 acephalous, 3-4
capital punishment as, 28-30 age-set, 8-10

298
 INDEX

charter myth of, 30 States

Chinese secret, 214-215 civilization as, 38
corporate, 62 coups against, 63-64
horticultural, 144, 245, 250, 254, 264 features of, 250-251
kingdoms, 129 kingdoms as, 129
legal evolution of, 142-145 origin of, 251-253
legal legitimacy in, 154-156 treaties between, 260
legal system conflict, 174-176 Status, 254, 259, 270
marriage laws of, 163-165 Statutory rape, 148,152
military, 31, 32,134-135,170-171 Steward, Julian, 197, 252
oaths and ordeals of, 181,184 Strategic Arms Limitation Treaties,
political equilibrium of, 195 260
revitalization movements in, 222-225 Structural functionalism, 195
segmentary lineage, 3-4, 235-237 Substantive law, 255. See also Law
social evolution theories on, 165,167-170, Sudanese State Security Bureau, 182-183
193-194, 251-252 Suicide, 79-80
state, 250-253 Sukuma (Tanzania), 176
status within, 254 Sungusungu groups (Tanzania), 176
tribal, 62,144, 263-265 Supernatural powers
tributary payments by, 265-266 of Deganawida, 50
See also Band societies as homicide sanction, 99-100
Society of Big Saber (China), 214 and Jivaro warfare, 269
Society of Elder Brothers (China), 214 in law enforcement, 136
Somali, 246 of leaders, 31, 129-131
Sorcery, 60-61, 97,138, 203, 221, 249-250, 258. and oaths, 181,182, 207
See also Supernatural powers and ordeals, 183, 184-185, 208
South Africa, 54 versus sorcery, 203
South America, 37,187-188, 250 as theft remedy, 258-259
South Korea, 274 of Trobriander, 136-137
Southeast Asia, 198-199 See also Sorcery
Soviet Union, former Sylliboy, Gabriel, 14-15
absence of contracts, 61 Syoko Asahara, 224
anthropology of, 170
governmental expropriation, 78
legalistic system, 152 Taiwan, 274
Nkrumah and, 65 Tallensi (Africa), 62, 236
personality principle of law, 192-193 Tanala (Madagascar), 75-76
purges, 208-209 Tantuku (Tikopia theft remedy), 258, 259
U.S. treaties with, 260 Tanzania, 70-73,176
See also Russia Tarascan Indians (Mexico), 157-158
Spanish government, 216 Technology
Spencer, Herbert, 144 Marxist criticism of, 165,167-168
Spencer, Robert, 86 and social evolution theory, 169,170,193-194,
Spiro, Melford, 81 251-252
Stalin, Joseph, 15,18, 78,173, 208, Territorial principle of law, 117, 257
209 Terrorism, 257

299
INDEX

Testamentary inheritance, 103 guardianship, 94

Thailand, 68, 249 law enforcement, 134
Thamu-hnamu faction (Burma), 81-83 legal pluralism, 174-175
Theft, 28, 69, 257-259 legalistic system, 152, 154
Theocracy, 259 litigation, 160
Third World, 190-191,197, 249, 272-273 misprision, 172
Thirty Years War, 109 oaths, 181
Thomas, Clarence, 45 patronage systems, 191
Tibet, 117-118, 206-208, 220, 259 product liability awards, 45
Tikopia (Polynesia), 257-259 real versus personal property, 211
Tiv (Nigeria), 89,146,181, 213-214, 236, 237 res judicata, 220
Tiwi (Australia), 188-189, 221-222 treaties with, 111-114, 260
Tlingit (northwest North America), 246 U.S. Army, 254
Toda (India), 265 U.S. Declaration of Independence, 227
Tongan (Polynesia), 255 U.S. Supreme Court, 220
Tonowi (wealthy man), 22-23. See also Big men U.S. v. First National City Bank (U.S. Second
Tort, 37. See also Civil law Circuit Court of Appeals, 1968), 114
Totalitarian dictator, 16,18 Universal Declaration of Human Rights
Treaties, 109,111-114, 260-263 (December 10,1948), 227, 228-232
Trespass, 263 Urigubu responsibility, 137
Tribal societies, 62, 144, 263-265. See also Band Usufructary rights, 211-212, 263
societies
Tribute, 265-266
Trobriander (Melanesia), 136-138 Vanuatu, Republic of (formerly Anglo-French
Tswana (South Africa), 58-61 Condominium of the New Hebrides), 47
Tulugak (Alaska), 84 Vatican City, 259
Turkey, 244 Vietnam war, 199
Tuscarora Indians (Iroquois), 52 Village Development Society (Burma), 82
Vblksgeist (national spirit), 142-143

U Lum Byei, 83
U Pain (Burmese insurgent), 82 Wabanaki Confederacy, 115
Umialik (Eskimo big man), 23-24. See also Big Wage labor. See Working class
men Wallace, Anthony F. C., 222
Unilineal evolution theory. See Social evolution Wallerstein, Immanuel, 274
theory War Chiefs (Iroquois Confederacy), 53
United Nations, 108,109,115 Ward leaders' association (Yako), 13
United States Warfare
abandonment, 3 Ashanti's regulation of, 49-50
adverse possession, 8 components and types, 267
black market, 24-25 as environmental adaptation, 253
common law system, 42, 77 explanations for, 267-268
confession admissibility, 47-48 by military societies, 171
constitution, 48 Watson, James B., 16
divorce law, 42 Wealth
expropriation, 78 of Ashanti government, 49
forced labor, 249 of big men, 22-23

300
 INDEX

as class determinant, 38 Working class, 39,165,167-168, 201

and crime, 69,199 World Court, 108
and patronage systems, 190-191 World system theory, 197-198, 272-274
and political power, 39,193 Wounded Knee massacre (1890), 223
supernatural control of, 136 Wovoka (Paiute), 223
world system theory on, 197-198, 273-274
Weber, Max, 156-157
Xenophobia, of Chinese, 214-216
Wergild (man-payment), 42. See also Collective
liability
West Africa, 247 Yako (Nigeria), 11,13-14
Western cultures Yanomamo (Brazil), 89, 268-269
homicide differentiation, 97 Yaqui Indians (Mexico), 216
reasonable man concept, 212 Yoruba (Nigeria)
slavery in, 245, 246-248 associations, 14
social evolution theory on, 194 as corporate tribe, 62
See also United States guardianship, 94
Westphalia, Treaties of, 109 kings, 129
White, Leslie, 197 marriage, 164
White Lolo (China), 246 ownership rights, 186, 212, 243
Wills, 103,104-105. See also Inheritance personality principle of law, 193
Witchcraft. See Sorcery servitude, 243
Wittfogel, Karl, 252
Wives, as inheritance, 9-10 Zapata, Emiliano, 157
Wolf, Eric, 197 Zionism, 225
Wolof (West Africa), 181 Zulu (Africa), 131,195

301