Norbert Rouland

Legal Anthropology
T ranslated by
Philippe G. Planel

T h e A thlone Press
London
First published in Great Britain 1994 by
The Athlone Press Contents
1 Park Drive, London NW11 7SG
First published in France 1988 by
Presses Universitaires de France, Paris
as Anthropologie juridique Foreword Simon Roberts vii
Introduction 1
© Presses Universitaires de France, 1988
English translation © 1994 The Athlone Press
PART ONE
Foreword © 1994 Simon Roberts Understanding Otherness: The Western Perspective 17
Publisher’s Note 1 The Development of Legal Anthropology 19
2 The Fields of Legal Anthropology 103
The publishers wish to record their thanks to the French Ministry of 3 Methodology 136
Culture for a grant towards the cost of translation.
British Library Cataloguing in Publication Data PART TWO
A catalogue recordfor this book is availablefrom the British Library Examining Diversity: The Legal Anthropology of
Traditional Societies 151
ISBN 0 485 11403 8
1 Traditional Legal Systems 153
2 Law in Traditional Societies 181
All rights reserved. No part of this publication may be reproduced, 3 The Settlement of Disputes 255
stored in a retrieval system, or transmitted in any form or by any means, 4 Legal Acculturation 291
electronic, mechanical, photocopying or otherwise, without prior permis­
sion in writing from the publisher.
Conclusion: Legal Anthropology and Metaphysics 330
Typeset by Saxon Graphics Ltd, Derby Index 336
Printed by WBC Book Manufacturers Limited, Bridgend

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 Foreword

When M. Rouland’s Anthropologie Juridique appeared in 1988, its

broad sweep must have recalled for many readers those great evo­
lutionary studies from the nineteenth century by scholars like
Bachofen, Maine and Morgan which aspired to characterize, and
provide an ancestry for, ‘modernity’. In it he proposes to lay the
groundwork for a fully synoptic view of ‘law’ by adding to the
conventional terrain of the comparative lawyer those small-scale,
technologically simple societies which were mapped out during
the twentieth century by modem social anthropology. So this is
unashamedly a law book: Rouland’s ‘legal anthropology’ is an
enriched comparative law which he aims to establish firmly within
the modern French law school curriculum.
All this needs to be said explicitly in introducing M. Philippe
Planel’s sensitive and faithful translation, because the ‘anthropol­
ogy of law’ has acquired a different complexion in the Anglo-
American world. While Maine and Morgan are certainly there in
the genealogy, their concerns were radically different from those
of Malinowski and Radcliffe-Brown whose sociologically
informed engagement with the problem of ‘order’ determined the
direction that the anthropology of law took until well into the
1970s. Under sustained participant observation, it quickly
became clear that many of the small-scale societies encountered
in the colonial world had no obvious centralized authority, let
alone the differentiated institutions associated with government in
the West. For observers brought up in cultures where ‘order’ had
come to be linked with the accomplishments of kingship or some
other centralized steering arrangement, this seems problematic.
Here were societies without ‘kings, courts and constables’, as
Malinowski put it; and yet they were not the savage anarchies
which Hobbes had postulated as the inevitable alternative to the
viii Legal Anthropology

presence of a sovereign. How were the evident coherence and reg­

ularity of these groups to be explained? What held them together?
The absence of explicit governmental arrangements, and of any­
thing looking like a legal system, placed the ‘problem of order* at Introduction
the top of the agenda.
During the 1950s this anthropology of ‘order’ narrowed to focus
on disputes; but the work continued to be done by anthropolo­
What they are not familiar with people call barbarian.
gists. Such major figures in post-war social anthropology as
(Montaigne)
Bohannan, Fallers, Gluckman, Gulliver and Turner all made or
consolidated their reputations with ethnographies of dispute
processes. It was only at the end of the 1960s as attention turned
to examining the part which law had played in the imposition of LEGAL ANTHROPOLOGY
colonial domination, and might yet play in processes of post-colo­
nial reconstruction, that academic lawyers came to work in signifi­
1 Task and scope
cant numbers in this field. Among these scholars attention shifted
Legal anthropology sets itself the task of studying the discourse,
to examining the relationship of national legal systems to the nor­
practices, values and beliefs which all societies consider essential
mative orders of encapsulated groups; but their research still large­
to their operation and reproduction.
ly took the form of detailed ethnographic studies at a local level. In
Constrained by this initial parameter, the scope of legal anthro­
this work lawyers have on the whole come to share that move away
pology is none the less vast, since its ambit must include another
from ‘legal centralism’ which anthropologists had taken for grant­
of anthropology’s objectives: the study of humankind in all its
ed since the time of Malinowski, conceptualizing the relationship
diversity, throughout time and space, in all societies.
of national law and local ‘customary law’ in terms of coexisting,
Traditionally, history concerned itself with the study of past
interpenetrating normative fields. But the very label ‘legal plural­
societies, sociology and ethnology with those of the present;
ism’ by which these studies have come to be identified marks the
respectively treating modern and traditional societies. These par­
extent to which this has become a field of legal scholarship.
titions still exist, but they are gradually becoming less exclusive.
Although a number of comparative lawyers (notably Stein in
The scale of the task makes this a necessity. There are of the
England and MacCormack in Scotland) have given some atten­
order of 10,000 distinct known legal systems. Even if we have rel­
tion to anthropological research, there has been no general move
atively precise information about only several hundred of them, a
to enlarge comparative law in the manner which M. Rouland pro­
first impression remains that of exuberant diversity. The human
poses. So it will be interesting to see if this translation of his
species is characterized by cultural variability: humankind has cele­
Anthropologie Juridique initiates a change of direction. Whatever
brated difference to forge its own identity. We exist only in relation to
happens, readers will surely admire the panache with which
others, finding our place in a continuum stretching from the
Rouland has approached his project and his sure grasp of Anglo-
familiar to the foreign. Confronted with such a proliferation of
American writing; and they will be grateful for the privileged
social and legal systems, anthropology develops a system of classi­
access which his careful and wide-ranging scholarship has provid­
fication before undertaking comparative study. As to the nature
ed to the literature of an important strand of comparative law in
and finality of comparative classification, here there are also a
the civilian world.
number of currents of thought. The ‘culturalists’ highlight the
specific nature of a group’s value system, the structuralists
Simon Roberts
attempt to identify an underlying order within cultural variability.1
London School of Economics and Political Science

[f
 2 Legal Anthropology
Whether one detects unity or plurality behind variability, social
anthropology has a mission of totalization, even if the task is at
present far from complete: fundamentally, no society is excluded,
present or past, industrialized or ‘exotic’. Nevertheless, for histor­
ical reasons, principally colonialization and the great parting of
ways between sociology and ethnology - for which Auguste
Comte was responsible - anthropology took as its point of depar­
ture the study of societies that differed from the Western model.
The ethnographic research and theory built on these foundations
have largely focused upon ‘traditional’ societies.2 Only recently
have Western societies themselves become the subject of anthro­
pological study. For this reason the major part of the present
study will concern the legal ethnography of traditional societies.
2 Origins and development
Legal anthropology has its origins in social anthropology, but has
none the less to be distinguished from its progenitor. In common
with social anthropology, the discipline sets itself the objective of
understanding the rules of social behaviour, but emphasizes the
legal domain, all the while recognizing that law can never be con­
sidered in isolation; law is only one element in the cultural and
social whole of each society, and is variously interpreted and used
by each subgroup. In the second half of the nineteenth century,
the era in which the groundwork was laid for modern anthropolo­
gy, law and anthropology seemed to be in step with each other:
the great anthropologists were nearly all legal scholars, or had
studied law. But this partnership was short-lived. Legal anthro­
pology, especially in France, had only a shadowy existence. The
responsibility for this state of affairs lies with lawyers and their
habits. We can begin by drawing attention to the difficulty they
have encountered in defining their own discipline. Kant had
already stated that ‘jurists spend their time defining their concept
of law’. This preoccupation is still with us. Classic definitions -
where would students be without them? - give pride of place to
state sanctions, generally combined, on the moral plane, with a
search for justice. These definitions are not incorrect but they are
hardly sufficient. To define law by its sanction is like defining
good health by illness. As for the notion of justice, this is afflicted
with a baffling malleability as one moves from society to society:
Introduction 3
Nazi and Stalinist justice have come and gone, and they were cer­
tainly both founded on ‘just’ principles as far as their authors
were concerned, yet they had little in common with the justice of
democracies. Furthermore, these definitions generally lead to an
attitude which typifies the ethnocentricism of Western law: the
identification of law with the state.
Thus conceived, the science of law could advance only through
leaving by the wayside all those societies which were then classi­
fied as ‘primitive’, if not ‘barbarian’ or ‘savage’. For, if it has been
difficult for legal theorists to define their own societies, one can
readily understand why they have not tried to tackle - save by
excluding them - societies which differ from their own. The exis­
tence of the state fortunately furnished them with a strong alibi,
transforming their ignorance into prejudice: law could thrive only
under the influence of the state before, according to the bolder of
these theorists, it eventually withered away - a projection of the
golden age to come, where there were no laws or constraints.3
The syllogistic identification of the law with the state thus relegat­
ed non-state societies to the shadowy status of primitiveness, or
pre-state formation. Apart from the fact that, as we shall see, law
can exist without the state, the notion of the state is itself too ill-
defined to establish such an important epistemological distinc­
tion: recent political anthropology clearly demonstrates that,
instead of distinguishing between state and non-state societies,
there is more to be gained in examining the immensely wide spec­
trum extending from segmented societies, regulated by a more or
less stable equilibrium between their constituent groups, to mod­
ern societies possessing a specialized and centralized governmen­
tal apparatus. It would be difficult, finally, to pass over another
oft-lamented element, the conservatism of lawyers. No doubt
there are sociological and historical reasons for this conservatism,
but it also resides in cultural factors: the reverence accorded to
the state, the value attached to order and security as opposed to
conflict, the latter considered as pathological; these factors have
led many jurists to a dual idealism. To begin with, there are
norms: any society which does not have a clearly defined corpus
of these, cannot have a system of law. However, thanks to the
analysis of such authors as M. Alliot and E. Le Roy, we now
know that many traditional societies follow not so much explicit
norms as modes of behaviour, which are not necessarily met with
V ill
4 Legal Anthropology
sanctions. Yet these societies are anything but anarchic. The sec­
ond idealism is the splendid isolation of law, which has reduced
law to a technique: for a long period law was taught as a body of
rules with a self-contained rationale and history. The perspective
supplied by anthropology might have had the effect of instilling a
measure of humilityj if only in drawing attention to the need to
carry out fieldwork. Since Malinowski (1884-1942), anthropolo­
gy is no longer studied solely in the reassuring silence of libraries:
anthropologists must, for a period of time, directly immerse
themselves in the society they are studying. This does not seem to
apply to the jurist: the mutual incomprehension of theorists and
practitioners in France is a well-known fact. Yet, considered in
isolation, neither practice nor theory is sufficient to make sense of
the reality. If jurists had studied their own societies more closely,
no doubt they would have understood it better, realizing that legal
phenomena are infinitely richer than the condition to which they,
too often, reduce them.
However, times change, as the publication of the current study
testifies. For students of law, certitudes are gradually giving way
to questioning, and attention is turned to legal disciplines which
used to be classed as ‘auxiliary’ (a term which, in practice, often
meant ‘of little use’) and hardly known. Legal anthropology
belongs to this latter category. In France the movement is of too
recent an origin (it is only ten years old) for its future to be
mapped out. Its origins are, however, clearer: a crisis in state-
based ideologies, an uncertainty felt by jurists in the face of the
multiplicity and mutation of new norms, a waning of the role of
the written word in our systems of communication. Perhaps the
trajectories of anthropology and law will converge in the twenty-
first century. However, at present, legal anthropology owes its
advance more to theoretical developments within social anthro­
pology than to jurisprudence. It is, as a consequence, necessary to
devote the first part of this book to these problems.3
3 The present study
This book will fall into two parts: the recognition of difference or
otherness by Western legal anthropology; and the study of the
main legal processes of traditional societies, as described by legal
ethnology. In making such a statement of intent we must bear in
Introduction 5
mind, from the outset, that this study can only imperfectly fulfil
these objectives. There are inevitably limitations.
The first limitation is of a material nature. A textbook is not a
treatise. Many specialists will find that their appetite has only
been whetted; we have had to limit ourselves to waymarking
paths, and supplying bibliographies which will broaden these
avenues of inquiry.
The second has to do with pedagogy. This study is in the first
instance addressed to law students, few of whom, it may be
assumed, have studied anthropology: thus we have had to simpli­
fy, without, we hope, doing an injustice to the material. This
study is the work of a French writer in the ‘Romano-civilian’ legal
and academic tradition.
Lastly there are objective limitations: the geographically deter­
mined parameters of the societies most commonly referred to; all
the questions which will remain unanswered once this book has
been closed.
The term ‘traditional’, which will be more closely defined in
due course, is a word which encompasses many societies, in both
time and space. We have chosen the societies of sub-Saharan
Africa, and the Inuit (formerly known as Eskimos). Many other
societies —notably those from North America, Indonesia and Asia
- had equally valid claims on our attention, and have also been
studied by legal anthropologists. However, for historical reasons,
sub-Saharan Africa has produced a considerable body of litera­
ture and constitutes, in France, the main area of research. As for
the Inuit, a hunter-gatherer society, they have been the object of
the author’s research for the last ten years, and can thus be
described with the most authority.
This study is limited by the choice of its subject-matter and
also in the number of questions it can hope to answer. Legal
anthropology asks some questions for which, at present, there can
be no satisfactory answers. However, no discipline can evolve
without being spurred on by its own lack of certainties. This is
why, far from limiting the scope of legal anthropology to the study
of societies which have been eclipsed by history, we believe the
discipline to have a future, a future which this study hopes to
chart.
Finally, thanks are due to those who have been willing to read
drafts of this work and have given us the benefit of their advice,
especially their doyen, J. Carbonnier.
I _L
6 Legal Anthropology
NOTES
1 Thirty years ago, Claude Lévi-Strauss spelt out the agenda of
the second approach: ‘If, as we believe, the unconscious activity
of the mind consists in imposing forms on content, and if these
forms are fundamentally the same for all minds, ancient or
modern, primitive or civilized . . . it is necessary and sufficient
to grasp the unconscious structure underlying each institution
and each custom, in order to obtain a principle of interpreta­
tion valid for other institutions and other customs, provided of
course that the analysis is carried far enough.’ (C. Lévi-Strauss,
Structural Anthropology, trans. C. Jacobson and G. Schoepf
(Harmondsworth, Penguin, 1968 p. 21.)
2 For a definition of this term, see below, no. 67.
3 In the imaginary world of the golden age, law has often not yet
been born, or it has disappeared: evidence that law is perceived
negatively and is associated with evil and imperfection. We
need only cite two such disparate authors as Ovid and Lenin.
First: ‘Golden was that first age, which with no one to compel,
without a law, of its own will, kept faith and did the right.
There was no fear of punishment, no threatening words were to
be read on brazen tablets; no suppliant throng gazed fearfully
upon its judge’s face, but without judges lived secure. . . . The
earth herself, without compulsion, untouched by hoe or
ploughshare, of herself gave all things needful’ (Ovid,
Metamorphoses, I, 89-93, 101-2). Second: ‘Men will gradually
learn to respect the basic rules of life in society - known for
centuries, repeated over thousands of years in all their prescrip­
tions - to respect them without violence, without constraint,
without submission, without this special instrument of coercion
called the state’ (Lenin, The State and Revolution). (Concerning
the Roman myth of the golden age, P. Braun, ‘The taboos of
the “Feriae”’, is of considerable interest; see L ’Année soci­
ologique (1959): 49-125.)
Important general comment concerning the author’s work is
‘Anthropologie juridique’, R. Motta, L ’anthropologia giuridica di
Norbert Rouland, see Sociologia del diritto, 2 (1993): 183-99.
Introduction 7
FURTHER READING
4 M ain reference works in social anthropology
A student approaching legal anthropology should first of all
acquire a working knowledge of social anthropology, and should
consult a few of the many works devoted to the subject selected
here. Magazine littéraire, 167 (December 1980): 8-31 is very
readable, and examines ethnology. The same is true of
Anthropologie (Livre de Poche, ‘Encyclopédie du monde actuel’,
1977), a compact reference work including the main terms in the
discipline and a basic bibliography. The Dictionnaire ency­
clopédique de théorie et de sociologie du droit, ed. A.-J. Arnaud, Vol. 1
(Paris, LGDJ, 1988, 486 pp.) is a valuable work, in which stu­
dents will find many of the terms used in legal anthropology
defined and analysed. There are also more comprehensive stud­
ies, beginning with: J.-M. Auzias, L ’Anthropologie contemporaine
(Paris, PUF, 1976, 174 pp.), noteworthy for its clarity and
humanity; also J. Guiart, Clefs pour l’ethnologie (Paris, Seghers,
1971); J. Copans et al., L ’Anthropologie. Science des sociétés primi­
tives (Paris, Denoël, 1971); J. Beattie, Introduction to Social
Anthropology (Paris, Payot, 1964); P. Mercier, Histoire de l’anthro­
pologie (Paris, PUF, 1966); J. Poirier, Histoire de l’ethnologie (Paris,
PUF, ‘Que sais-je?’ series, 1984, 128 pp.); M. Duchat, Le partage
des savoirs (Paris, La Découverte, 1985, 231 pp.); J. Servier,
Méthode de l’ethnologie (Paris, PUF, ‘Que sais-je?’ series, 1986,
128 pp.); J. Cuisenier and M. Segalen, Ethnologie de la France
(Paris, PUF, ‘Que sais-je?’ series, 1986, 128 pp.); Handbook of
Social and Cultural Anthropology, ed. J. J. Honigmann (Chicago,
Rand McNally, 1973) is a comprehensive textbook; finally F.
Laplantine, Clefs pour l’anthropologie (Paris, Seghers, 1987, 224
pp.) gives the most recent overview of the discipline. Readers are
also referred to a series of textbooks: R. Cresswell, Eléments d’eth­
nologie, 2 vols (Paris, A. Colin, 1975, 318 and 284 pp.), where the
jurist will find Vol. 2 of particular interest, with its contributions
by M. Godelier (economy) and R. Cresswell (kinship). There is
also the ‘La Pléiade’ series: Ethnologie générale, ed. J. Poirier
(Paris, Gallimard, 1968, 1908 pp.), a reference work which
includes general chapters on the history of anthropology and its
component disciplines; some chapters are devoted to law, and M.
Alliot, ‘L’acculturation juridique (1180-1246)’, is essential read-
u
8 Legal Anthropology Introduction 9

ing; certain of J. Poirier’s themes (in particular concerning sanc­ the most recent survey, L ’Etat des sciences sociales en France, ed.
tions and the prehistory of law) in ‘Introduction à l’ethnologie de M. Guillaume (Paris, La Découverte, 1986, 586 pp.); and, in
l’appareil juridique (1091-1110)’, have caused controversy ever particular, outstanding in its clarity and the relevance of the ques­
since publication; H. Lévy Bruhl’s ‘Ethnology juridique tions raised: ‘L’Anthropologie, état des lieux’, a special issue of
(1110-1179)’, is now outdated on many points. Also edited by J. L ’Homme, 97-8 (1986): 27-343.
Poirier are Ethnologie régionale, Vol. 1 (Paris, Gallimard, 1972),
concerning Africa and Oceania, and Vol. 2 (Paris, Gallimard,
6 Literary works and films
1978), concerning Asia, the Americas and the Mascarene islands; In association with these specialist works, the student may find it
three other volumes were to appear, among them Histoire des
useful to turn to various literary works whose approach is equally
moeurs (Paris, Gallimard, 1990-1).
valid. On the relationship between literature and anthropology,
The following works are general essays, but are relevant: M.
see Laplantine, Clefs pour l’anthropologie, op. cit., pp. 173-80; the
Abélès, Anthropologie et Marxisme (Paris, Complexe, 1976, 240
‘Terre Humaine’ series, ed. J. Malaurie (Paris, Plon), regularly
pp.); M. Augé, Symbole, Fonction, Histoire: les interrogations de
publishes fascinating accounts, among which we may cite C.
l’anthropologie (Paris, Hachette, 1979, 216 pp.), translated into
Lévi-Strauss, Tristes Tropiques, trans. J. Weightman and D.
English as The Anthropological Circle: Symbol, Function, History
Weightman (London, Cape, 1973) on the Indians of Central
(Cambridge, Cambridge University Press, 1982); and, in particu­
Brazil; and J. Malaurie, Les derniers rois de Thulé (1975, 578 pp.),
lar, M. Godelier, The Mental and the Material, trans. Martin
originally published as The Last Kings of Thule: a year among the
Thom (London, Verso, 1986), which is an outstanding contribu­
Polar Eskimos of Greenland (London, Allen & Unwin, 1956), on
tion to the debate concerning the respective influences of thought
the Polar Inuit of North-West Greenland. There is also the more
and environmental constraints on social organization, citing
difficult work by M. Griaule, Dieu d’eau (Paris, Fayard, 1966,
examples from sources as diverse as classical antiquity and the
222 pp.) which demonstrates that African mythology stands up
anthropological literature in support of his arguments; this range,
well in comparison with Greek mythology. Works of fiction
in itself, is an example of the scope of anthropology.
should not be excluded. There is much of value in V. Segalen’s
Less recent sources are still valuable, such as: E. Evans-
Les Immémoriaux (Paris, Plon, 1982, 340 pp.), which narrates in
Pritchard, Social Anthropology (London, 1956); R. Lowie, Histoire
very effective style the colonization of Tahiti through the downfall
de l’ethnologie classique (Paris, Payot, 1937), translated into
of Terii, ‘chef au Grand-Parler’; P. Laburthe-Tolra has recently
English as The History of Ethnological Theory (London, Harrap,
contributed a very fine anthropological novel on the Bendzo of
1938), a survey which concludes on the eve of the Second World
the Cameroons, Le Tombeau du Soleil (Paris, O. Jakob and Le
War; M. Mauss, Manuel d’ethnographie (Paris, PUF, 1947), which
Seuil, 1986, 382 pp.); Ahmadou Kourouma casts a critical eye
devotes a chapter to an inquiry into law, and is still useful. Finally
over decolonization and the threats hanging over traditional cus­
see G. P. Murdoch’s ethnographic atlas, Ethnology, 1-3 (1962-4)
toms, telling the tale of Fama, Malinké prince of the Ivory Coast,
which contains data on 628 societies, which can usefully be
and his fall from power, in Les Soleils des Indépendances (Paris, Le
compared.
Seuil, 1970, 208 pp.), translated into English as The Suns of
Independence (London, Heinemann, 1981); historical novels on
5 Anthropology in France ancient Rome and the barbarian period, include N. Rouland, Les
A number of works cover the current position: L ’Anthropologie en Lauriers de cendre (Arles, Actes Sud, 1984, 446 pp.) and Soleils
France: situation actuelle et avenir (Paris, Ed. du CNRS, 1979, 568 barbares (Arles, Actes Sud, 1987, 470 pp.).
pp.); Les Sciences de l’homme et de la société en France, ed. M. Films, too, should not be overlooked. See: J. Rouch, ‘Le Film
Godelier (Paris, La Documentation française, 1982, 560 pp.); for ethnographique’, in Ethnologie générale, ed. Poirier, op. cit.; as

_ii
 10 Legal Anthropology
well as the list of films given in the Actes du Vie Congrès interna­
tional des sciences anthropologiques et ethnologiques, Paris, 30 juillet-6
août 1960, Vol. 2 (Paris, Musée de l’Homme, 1964), pp. 655-7.
The founder of the ethnographie film is Robert J. Flaherty, with
his film on the Canadian Inuit, Nanook of the North (1921). Again
featuring the Inuit, there is K. Rasmussen’s fine film, Les Noces de
Palu, also shot earlier this century. J. Rouch’s film, Moi un Noir
(1958) has also become a classic. We must also include
Souleymane Cissé’s fine film, Yeelen (1987).
7 Legal anthropology, problems in the literature
Once the main avenues of social anthropology have been
explored, the student may turn to legal anthropology, only to be
confronted at the outset with a number of problems in the litera­
ture. The latter is not, for the most part, in French: English is the
main medium, and Italian and German are also useful.
Furthermore, this literature is scattered among a number of jour­
nals, from many different countries, which are not easy to con­
sult. The same is also unfortunately true of monographs. In
addition legal anthropology is effectively terra incognita as regards
the databases of information technology. Last, but not least in its
seriousness, no recent textbook exists at the time this is written,
which comprehensively reviews all aspects of the discipline.
However, a number of useful aids to study do exist. We will cite
the main ones, leaving more specific sources to the ‘further read­
ing sections’ at the end of each chapter.
8 Legal anthropology bibliography
A number of bibliographies exist. J. Glissen, Bibliographie d’his­
toire du droit et d’ethnologie juridique, has a wide geographical cov­
erage, and has the advantage of being periodically updated,
whereas most of the following bibliographies date from the end of
the 1960s; they are, none the less, indispensable: Ethnologie
générale, ed. Poirier, op. cit. above, no. 4, pp. 1236-46 (ends in
1965); L. Nader, K. F. Koch and B. Cox, ‘The ethnography of
law: a bibliographical survey’, Current Anthropology, 7, 3 (1966):
267-94 (very complete); S. Falk Moore, ‘Law and anthropology’,
Biennial Review of Anthropology (1969): 295-300 (ends in 1967);
L. Nader, ‘The anthropological study of law’, American
Introduction 11
Anthropologist, 6, 2 (1967): 26—32; L. Nader and B. Yngvesson,
‘On studying the ethnography of law and its consequences’, in
Handbook of Social and Cultural Anthropology, ed. J. J. Honigmann
(Chicago, Rand McNally, 1973), pp. 916-21; L. Pospisil,
Anthropology of Law (New York, Harper & Row, 1971), pp.
349-68 (1789-1969); N. Rouland, ‘Horizons pour l’anthropolo-
gie juridique’, RRJ, 2 (1984): 367-76. Other bibliographies are
devoted to specific topics. First, kinship: Cresswell, ‘La Parenté’,
in Eléments d’ethnologie, Vol. 2, op. cit., above, no. 4; Robin Fox,
Biosocial Anthropology (London, Malaby, 1975); and Histoire de la
famille, ed. A. Burguière et al., 2 vols (Paris, A. Colin, 1986),
which includes up-to-date and well-organized bibliographies. We
will now turn to the settling of disputes: P. H. Gulliver, Disputes
and Negotiations: A Cross-Cultural Perspective (New York, 1979),
contains an excellent bibliography; S. Roberts, Order and Dispute:
A n Introduction to Legal Anthropology (Harmondsworth, Penguin,
1979), pp. 207-11; J. Griffiths, ‘The general theory of litigation: a
first step’, Zeitschrift fur Rechtssoziologie, 4, 1 (1983): 198—201. On
legal pluralism, which is one of the major preoccupations of cur­
rent legal anthropology: P. L. Van den Berghe, ‘Pluralism’, in
Handbook of Social and Cultural Anthropology, ed. Honigmann, op.
cit., above, pp. 971-7,
Finally, some bibliographies cover legal anthropological studies
in particular parts of the world. Africa is covered by M. Lafond,
Recueil de thèses africanistes (Droit et Science politique), 1967—1984
(Paris, Centre d’Etudes juridiques comparatives, Université de
Paris II, 1985). The work of the Dutch school in the specialist
study of traditional Indonesian law (the Adat Law School) can be
consulted in a complete and up-to-date listing in J. Griffiths,
‘Anthropology of law in the Netherlands in the 1970s’, Niewsbrief
voor nederlandstalige rechtssoziologen, rechtsantropologen en rechtspsy-
chologen [hereafter NNRJ, 4 (1983). There are also recent bibli­
ographies on some Asian countries (all the more precious since
studies of traditional law in Asia are for the present few in num­
ber): see M. Chiba, Asian Indigenous Law (London and New
York, Routledge & Kegan Paul, 1986, 416 pp.). Finally there is
our own summary of the main legal studies of the Inuit: N.
Rouland, ‘L’Ethnologie juridique des Inuit: approche bibli­
ographique critique’, Etudes Inuit, 2, 1 (1978): 120-31. As we
have seen, these various bibliographies are not recent. The pre-
u
 12 Legal Anthropology
sent author has provided regularly (since 1985) ‘Chroniques
d’anthropologie juridique’ in Droits, revue française de théorie
juridique.
9 Overviews o f legal anthropology
Amongst overviews we may cite the following. R. Thumwald,
Werden, Wandel und Gestaltung des Rechtes im Lichte der
Volkerforshung (Berlin and Leipsig, De Gruyter, 1934), now out­
dated, but a considerable achievement for its day. A. S. Diamond,
The Evolution of Law and Order (London, Watts, 1951), suffers
considerably from its evolutionist bias; this work was subsequent­
ly republished under the title Primitive Law, Past and Present
(London, Methuen, 1971); the author left the text essentially
unchanged from the first edition of 1935 - with barely a mention
of the work of the American neo-evolutionist school; see B. S.
Jackson’s summary in The Law Quarterly Review, 88 (1972):
267-70. More topical works include: E. Adamson-Hoebel, The
Law of Primitive Man (Cambridge, MA, Harvard University
Press, 1967, 358 pp.); M. Gluckman, Politics, Law and Ritual in
Tribal Society (Oxford, Blackwell, 1971, 340 pp.); L. J. Pospisil,
Anthropology of Law: A Comparative Theory of Law (New York,
Harper & Row, 1971, 386 pp.); The Ethnology of Law (New
Haven, CT, Human Relations Area Files, 1985, 136 pp.), an
abridged and updated version of the original; F. Remotti, Temi di
antropologia giuridica (Turin, Giappichelli, 1982, 204 pp.), and
also G. Mondarini Morelli, Norme e controUo sociale. Introduzione
anthropologica alio studio delle norme (Sassari, Iniziative culturali,
1980, 170 pp.), are two good introductions for students; R.
David, Les grands systèmes de droit contemporains (Paris, Dalloz,
1974, 658 pp.), which unfortunately devotes very few pages to
traditional societies; A.-J. Arnaud, L ’Homme-Droit, Eléments pour
une anthropologie juridique (forthcoming). We should also include
a recent work which demonstrates the dynamism of the Dutch
school: Anthropology of Law in the Netherlands, ed. K. Von Benda-
Beckman and F. Strijbosch (Dordrecht, Foris Publications,
1986). German studies tend to be philosophical in inclination; see
E. J. Lampe, Rechtsanthropologie. Eine Strukturanalyse des
Menschen im Recht (Berlin, Duncker & Humbolt, 1970, 384 pp.);
also by E. J. Lampe (ed.) is ‘Beitràge zur Rechtsanthropologie’,
Introduction 13
Archiv fur Rechts und sozialphilosophie, 22 (1985) (200 pp.). The
following is also of interest: R. Schott, ‘Die Funktionen des
Rechts in primitiven Gesellschàften’, in Jahrbuch fur
Rechtssoziologie und Rechtstheorie, ed. R. Lautmann, W. Maihofer
and H. Schelsky, Vol. I (Bertelsman Universitâtsverlag, 1970),
pp. 108-74. See also R. Vulcanescu, Ethnologie Juridica
(Bucharest, 1970), on legal anthropology in Romania; it is in
Romanian, which makes access difficult. Finally, we should men­
tion the valuable Recueils de la société Jean Bodin pour l’Histoire
comparative des Institutions, which regularly publishes thematic
studies (La Paix, La Preuve, La Femme, La Coutume, etc.), invari­
ably including chapters devoted to anthropological aspects of sub­
jects treated.
10 Legal anthropological periodicals
There are several periodicals which are indispensable for all stu­
dents of the subject. Droit et Cultures is the main French legal
anthropology periodical, published at the Université de Paris X-
Nanterre and edited by R. Verdier. This review first appeared in
1981 and treats themes of interest to both legal historians and
ethnologists. See also Le Bulletin de liaison de l’Association
‘Anthropologie et Juristique’ (founded by the Laboratoire
d’Anthropologie juridique de Paris); the present author con­
tributes regular summaries and chronicles of legal anthropology to
Droits. There are also several international periodicals: see Journal
of Legal Pluralism; for the newsletters of the Commission on Folk-
Law and Legal Pluralism, an international body created in 1978 to
which most legal anthropologists belong, see Newsletter of the
Commission on Folk-Law (Catholic University, Thomas Von
Aquinostraat 6, Postbus 9049, 6500KK, Nijmegen, the
Netherlands); and see the periodical Law and Anthropology, which
devoted its early issues (1986-8) to the legal status of ethnic
minorities. Other periodicals also from time to time publish arti­
cles on legal anthropology: Droit et Société (cf. in particular no. 5
(1985), a special issue on legal anthropology); Law and Society
Review; American Anthropologist; Zeitschrift für verglichende
Rechtswissenschaft.
 14 Legal Anthropology
11 French centres teaching legal anthropology
Teaching and research, leading to doctorates in legal anthropolo­
gy, in France are for the most part based in Paris: the Laboratoire
d’Anthropologie juridique de Paris, directed by M. Alliot and E.
Le Roy (Université de Paris I, Sorbonne, 14, rue Cujas, 75 Paris
Cedex 05); and the Centre Droit et Cultures, directed by R.
Verdier (Université de Paris X-Nanterre, 200, avenue de la
République, 92001 Nanterre Cedex). In the provinces there are
only one or two centres: the teaching of legal ethnology is offered
in the faculties of law of Nice and Toulouse (on the initiative of
J.-N. Lambert and J. Poumarède); the present author is professor
in the faculty of law of Aix-en-Provence, where a chair in legal
anthropology was created in 1988, with a postgraduate school. A
second chair in legal anthropology was created at the Université
de Paris I in 1989.
12 The slow development o f legal science
On the conservatism of jurists see A.-J. Amaud’s critical analysis,
Les Juristes face à la société (du XIXe siècle à nos jours) (Paris, PUF,
1975, 228 pp.); and M. Miaille, Une Introduction critique au droit
(Paris, Maspéro, 1976, 388 pp.). More recently the excellent
work Le Droit en procès, ed. J. Chevallier and D. Loschak (Paris,
PUF, 1983, 230 pp.), convincingly exposes the illusions and
dead-ends which classic approaches to law produce. In the same
vein is J. Lenoble and F. Ost, Le Droit occidental et ses présupposés
épistémologiques (Brussels, Association internationale des juristes
démocrates, Unesco, 1977). Certain recent works demonstrate
new theoretical departures in law: C. Atias, Epistémologie juridique
(Paris, PUF, ‘Droit fondemental’ series, 1985, 222 pp.); also by
C. Atias, Théorie contre arbitraire (Paris, PUF, 1987, 224 pp.); G.
Timsit, Thèmes et systèmes de droit (Paris, PUF, 1986, 206 pp.).
The association of law with the state has sometimes led jurists -
irrespective of stature - into patent error when referring to tradi­
tional societies. For some authors these are more ‘animal’ than
human. Thus R. Maspétiol notes that amongst the Inuit, as with
Pygmies, Lembas and Lakas, ‘such [elementary political] struc­
tures do not appear to be more developed than the most
advanced and homogenous animal societies’ (R. Maspétiol, La
Société politique et le droit (Paris, 1957), p. 3). P. Amselec takes the
Introduction 15
same line: law cannot exist in Inuit society because the Inuit, in
common with animal societies, only display spontaneous regula­
tory mechanisms (cf. P. Amselec, ‘Perspectives critiques d’une
réflexion épistémologique sur la théorie du droit’ (thèse droit,
Paris, 1964), p. 174 and n. 172).
Quite apart from the fact that ethnographic research contradicts
the above assertions, and whilst we cannot exclude all compar­
isons between human and animal societies, even hunter-gatherers,
who are furthest removed from our modem societies, belong to a
past so recent .that the gap between them and all animal societies is
much greater than any gap that separates them from us. See, on
this point, C. Lévi-Strauss, ‘The concept of primitiveness’, in Man
the Hunter, ed. Richard B. Lee and Irven De Vore (Chicago,
Aldine, 1975), pp. 349-50. Other authors, such as G. Burdeau,
argue for the infirmity of the ‘primitive’ intellect, incapable of
abstraction: ‘it would be an aberration to pretend to discover in
him [the individual] the elements, even in rudimentary form, of an
intelligent act on behalf of the community . . . he cannot be sub­
ject to law because the opinio necessitatis, which is one of the
necessary conditions of the authority of law, can only reside in an
individual capable of understanding that he must obey a rule or
submit himself to constraint’ (G. Burdeau, Traité de science poli­
tique, vol. 1, Le Pouvoir politique (Paris, 1966), p. 51 and n. 1).
Such propositions are based on erroneous premises: first, the
‘primitive’ is as capable of abstract thought as we are, but does not
necessarily use it in the same areas, just as our own societies have
their areas of ‘savage thought’; second, an old cliché notwithstand­
ing, the individual in traditional societies is not the obtuse thrall of
unchanging custom.
13 The idea o f the state in anthropology
The debate concerning the link between the state and law will be
one of the main areas we will consider. The student should first
clarify his or her ideas on the concept of the state by reading a few
studies which establish that it is harder to define than the classic
criteria described in law textbooks would have us believe: G.
Balandier, Anthropologie politique (Paris, PUF, 1978, 240 pp.),
translated into English as Political Anthropology (Harmondsworth,
Penguin, 1972); also by G. Balandier, Anthropo-logiques (Paris,
16 Legal Anthropology
Librairie générale française, 1985, 320 pp.) and Le Détour (Paris,
Fayard, 1985, 266 pp.); P- Clastres, in his La société contre l’Etat
(Paris, Editions de Minuit, 1974, 186 pp.) and Recherches
d’Anthropologie politique (Paris, Le Seuil, 1980, 248 pp.), sets forth
his well-known ideas on the rejection of the state by traditional
societies; J.-W. Lapierre, in Vivre sans Etat? (Paris, Le Seuil, 1977,
376 pp.), argues against the grain of current orthodoxy in anthro­
pology in stressing the positive role of the state in adaptive change,
and his arguments are not ones which can be easily dismissed. He
situates the state as the last of nine stages of differentiation of
political power and increasing complexity in political organization
(ibid., pp. 75-6), to be compared with the distinction between
governing and governed which occurs earlier. The use of such a
scale tends to emphasize the brutal dichotomy held to divide soci­
eties into those who possess the state and those who do not. L. de
Heusch, ‘L’Inversion de la dette. Propos sur les royautés sacrés
africaines’, in L ’Esprit des lois sauvages, ed. M. Abensour (Paris, Le
Seuil, 1987), Vol. I, pp. 1-59, insists that the state emerges from a
process in which power is made sacred over and above kinship.
PART ONE
Understanding Otherness: The Western
Perspective
Legal anthropology has been conditioned by the way Western
observers have viewed societies different from their own. The
question of otherness or difference - and the problems which
arise as thinking evolves - is a determining one. Coming to terms
with this problem involves developing an understanding of the
outside world based on an objective view of reality, a reality which
is internally coherent. This may seem a ‘common-sense’ attitude,
but is, in fact, only recently acquired, and fragile. The colonial
experience of the West, without which anthropology would not
exist, has itself been conditioned by the perceptions of anthropol­
ogy. From this point of departure, legal anthropology can develop
and elaborate a number of theoretical constructs, from which ever
more precise concepts and methodology can flow. We will exam­
ine these problems in the three following chapters.
J
 1

The Development of Legal

Anthropology

Law is chameleon-like. It varies from place to place, and

only those who know it well can tame it.
(Gola proverb, from Liberia)

Legal anthropology, direct descendant of the history of law, is

first recognizable in the work of its founding fathers in the second
half of the nineteenth century. It very rapidly set itself the
Promethean task of formulating an evolutionist theory of legal
processes; that this theoretical edifice was built with poor materi­
als soon became apparent. Less ambitious but more precise
approaches followed, bringing us up to the present day.
These developments can be situated in an international con­
text, dominated by the colonial episode, which gave the main
European nations contrasting and unequal research opportuni­
ties: thus it must come as no surprise that schools of thought
within the discipline are of a national character. Finally, these
developments have not yet run their course, a point which we will
further expand. We will examine these problems in two sections.

I THE FOUNDERS OF LEGAL ANTHROPOLOGY

It was in the eighteenth century that anthropology became episte­
mologically possible. Montesquieu stands out amongst students
of law at this time. However, it was in the second half of the nine­
teenth century that the first great works of legal anthropology
appeared.

14 A forerunner: Montesquieu and the break with natural law

For the Greek sophist Protagoras (480-411 bc) ‘Justice and
Injustice do not flow from nature, but from law’. The various the­
ories of natural law indict the above view as false, yet the idea of
20 Legal Anthropology
natural justice is not an uninterrupted strand in the history of legal
thought. In opposition to these sophists who believed that law
flows from the supremacy of those who govern (the Marxist theory
of law shares this perspective), Plato and Aristotle argued that law
is dictated by reason, a common attribute of all men, and should
be qualified as ‘natural law’, to be subsequently interpreted by the
law of the state. For Aristotle, and later St Thomas, to whom M.
Villey today adds his voice, the content of natural law is variable.
The justice it strives to express consists of a search for equality,
which must itself vary from society to society and over time; but in
all cases, whatever the degree of variation, a just act accords with
the order of things, with nature. In contrast, the modem expo­
nents of natural law, writers of the seventeenth and eighteenth
centuries, gave natural law a precise and fixed content. This was
composed of a number of guiding principles of a general nature
and codified in an enumeration of the rights of man. Many legal
anthropologists, those who stress cultural variability, find this sec­
ond approach hard to accept, and even cast doubts on the applica­
bility of the modern idea of a universal declaration of the rights of
man. Montesquieu (1689-1755), anticipating this view, had the
merit of being the only thinker of his period to reject a fixed atti­
tude towards law, and to consider societies which differed from his
own. For Montesquieu law was one of the components of a
sociopolitical system and closely involved in its functioning. Thus
law was of necessity a changeable entity, varying according to soci­
ety, time and place. In common with some legal anthropologists
today, he believed that the close relationship between law and
society militated against the transfer of law from one society to
another, unless the societies were themselves similar. We are far
removed from an idealist natural law, much closer, in fact, to the
twentieth-century anthropologists. Montesquieu shunned the evo­
lutionary stance which some twentieth-century writers have fallen
foul of. For him, developments in legal systems are not marked by
historical milestones, indicating the march of progress, but depend
on much more prosaic agencies, such as the climatic conditions,
topography, demography, etc., of a particular society. In his recog­
nition of the variability of law, Montesquieu is the first legal
anthropologist of the modem period. He was followed, a century
later, by other writers.
The Development o f Legal Anthropology 21
15 The foundations o f legal anthropology: Bachofen,
McLennan, Morgan, M aine
In the nineteenth century the birth of legal anthropology was pre­
saged by an effervescence of new terminology: first comparative
jurisprudence, then legal paleontology, finally legal archaeology, the
term legal ethnology only appeared in 1890 in a work by Post,
Grundriss der ethnologischen Jurisprudenz. Nomenclature aside,
1861 was a key year in our discipline. Two works of paramount
importance appeared in Stuttgart and London: Das Mutterrecht by
J. J. Bachofen ushered in the ethnology of kinship, a first step
rapidly followed by J. F. McLennan (Primitive Marriage, 1865)
and Lewis H. Morgan (Systems of Consanguinity and Affinity of the
Human Family, 1871); however, it was the work of Sir Henry
James Sumner Maine, Ancient Law (1861), followed by The Early
History of Institutions (1875) and On Early Law and Custom (1883)
which really announced the birth of legal anthropology. France
remained silent during these decisive twenty years, as the lan­
guage in which the above titles are written indicates.
Maine (1822-88) united several important qualities. First as a
teacher: he was professor of civil law at Cambridge; professor of
Roman law in London; from 1869, first professor of historical
and comparative jurisprudence at Oxford; and, finally, professor
of international law. He also held important administrative posts.
He was Vice-Chancellor of the University of Calcutta, a much
respected adviser to the Governor-General of India, and one of
those responsible for the codification of Indian law. These
responsibilities explain why, in his research, devoted in the main
to the family and property, India should have pride of place. Yet
Maine did not limit himself to far-off societies: European law -
and especially Irish law - are well represented. His work is shot
through with two overriding ideas. First, a three-stage theory of
the development of law: initially man believed that law was God-
given and channelled through earthly rulers (Moses and the deca­
logue); then law became identified with custom; finally, law
acquired a separate identity. In the course of this long evolution
law passed from status to contract: in the distant past, the rights
and obligations of the individual were rooted in that individual’s
status in the society of which he or she was a member; in modem
societies, which have witnessed the increasing mobility of groups,
the freedom of the individual is expressed in the appearance of
22 Legal Anthropology
legal contracts. Secondly, through his work on the worship of
ancestors, Maine attempted to demonstrate the antecedence of
patrilinear descent and patriarchal society. Maine subscribed to
Darwinian evolution. For him, far-off societies are stationary and
infantile, Europe alone having revealed itself as a dynamic force
in the development of legal processes.
Johann Jakob Bachofen was professor of Roman law and a
magistrate at Basel criminal court; he too can be identified with
the evolutionist current of thought, specializing in the study of
kinship. However, unlike Maine, he believed in the anteriority of
matriarchy - which he linked with the advent of agriculture - over
patriarchy. From antiquity onwards, many sources indicate
matrilinear filiation. Bachofen interpreted these references as
‘remnants’ of a matriarchal age, itself preceded by an age charac­
terized by a lack of differentiation, or a stage of promiscuous
primitivism. These ideas found many echoes at the time, but
nothing now remains of them, save in certain tenets of feminist
thought. Ethnographic observation has never found evidence of
primitive promiscuity, and few authorities even believe in the
existence of matriarchy (on the other hand there are societies,
such as the Tuareg, where the woman enjoys a status approaching
that of the man, but they are very rare). Nevertheless, Bachofen’s
contribution to methodology is considerable. Few traditional soci­
eties have left written sources of the kind that historians use.
Shunning linguistics, Bachofen chose instead to study art and, in
particular, myth. His major insight in this area was to understand
that in most respects the narrative was a fiction, yet vehiculed an
interior meaning designed to shed light on ‘objective reality’.
Thus legal anthropology was able to assert itself as a science capa­
ble of deciphering images and symbols unconnected with the
written word, thus shrugging off a reliance on textual interpreta­
tion which Romanists - Mommsen in particular - had carried to a
degree of near perfection, but which could not avoid succumbing
to the dangers of abstraction. As J. Costa has written: ‘the princi­
pal merit of Bachofen was to transcend the limits of the written
word and demonstrate a simultaneity of customs with connec­
tions, not only over a long time-span, but within the spatial
distribution of legal systems.’
John Ferguson McLennan was a contemporary of the above
two authors, but appears less significant. Yet he was, with
The Development o f Legal Anthropology 23
Bachofen, one of the first to study kinship, and some of his
insights are still relevant in the anthropology of kinship. He
invented the terms ‘endogamy’ and ‘exogamy’; he studied the
levirate, which he linked to polyandry; and in particular he drew
attention to methods of classifying kinship, expanded by Morgan
in a magisterial way several years later. (See below, no. 108.)
Lewis H. Morgan (1818-81) is the main exponent of evolution­
ist thought of the period. His principles, unveiled in Ancient Society
(1877), are simple and are based on criteria of technical classifica­
tion. Humanity passes through three stages (each itself subdivided
into three phases): savagery (hunting and gathering; primitive
communism); barbarism (domestication of animals, agriculture,
metallurgy; tribal or clan ownership, patriarchal family); civiliza­
tion (invention of writing, paper, steam, electricity; monogamous
family, private property, the state). In the future, according to
Morgan, evolution should lead to the disappearance of private
property. This became a seminal work. However, it has not aged
well: it too readily established comparisons; attaching an inordi­
nate value to the idea of progress, Morgan made a premature
attempt at synthesis. Morgan’s other main work, more technical
and less well known at the time, Systems of Consanguinity and
Affinity in the Human Family (1871), makes considerable advances
in the anthropology of kinship, which had been only touched on
by his predecessors. This work is based on patient inquiry:
Morgan collected data directly from Indians, and had correspon­
dents in many parts of the world. However, yet again, these
insights were an integral part of an evolutionist framework.
Traditional societies, characterized by the rudimentary nature of
their knowledge, are placed at the bottom of the ladder of
progress, whereas Western societies are placed at the top, civiliza­
tion going hand in hand with the monogamous family unit.
Despite this mistaken perspective Morgan is rightly ranked
amongst the founders of legal anthropology.
II THE THEORETICAL CONSTRUCTS OF LEGAL ANTHROPOLOGY
16 A symphony
Legal anthropology is closely related to social anthropology and
initially subscribed to the evolutionist current which dominated
24 Legal Anthropology
the social sciences throughout the second half of the nineteenth
century. However, evolutionism fell rapidly out of favour from the
beginning of the twentieth century onwards: Franz Boas and
Robert Lowie were strong in their criticism, but it was Bronislaw
Malinowski, founder of functionalism, who made the most telling
criticisms. A worker in the field as much as a theoretician, a
physicist and mathematician by training, Malinowski devoted part
of his research to legal phenomena and began a debate on the
nature and methods of observation of legal processes in tradition­
al societies, which ran out of steam only in the 1970s. Whilst the
first attempts at theory were made at the beginning of the century,
modem legal anthropology has, since the 1970s, been dominated
by the theme of legal pluralism. As we can see, these different
theories cut across each other rather than succeed each other,
lending a ‘symphonic’ as much as a ‘concert-like’ character to
legal anthropology. However, in the interests of clarity, it is as
‘solos’ that we will consider these theories.
A: The changeable nature of the legal process: evolutionism
17 Evolution and complexity
Evolutionism may be briefly described as a theory in which all
human societies pass through identical stages in their economic,
social and legal development. This very general proposition
immediately suggests a number of corollaries.
To begin with, if evolution is synonymous with change, change,
even adaptive change, does not necessarily lead to evolution,
because in evolutionist theory evolution is characterized by an
increase in complexity in the relevant institution. R.-L. Cameiro
takes up, albeit in slightly modified form, H. Spencer’s definition
(1862): ‘Evolution is the passage from a relatively undefined and
non-coherent homogenous state to a relatively well-defined and
coherent heterogenous state, through successive stages of differ­
entiation and integration.’ His model is a classic presentation of
the distinction between traditional and modem societies. The
former are characterized by a high degree of integration of the
individual within the group and between groups, through a con­
vergence of political, religious and legal organization, and by
mechanical integration; whereas in the latter there are marked
The Development o f Legal Anthropology 25
social divisions, and integration is organic and reflects such divi­
sions, the state being an institutional manifestation of social
division. Finally, law, in establishing its independence from other
forms of social regulation, has laid the foundations for its own
growth (a frequently cited reason for the spread of the Roman law
is its early secularization). Once admitted, this principle remains
to be applied. This cannot be done without a clearly calibrated
scale with well-defined criteria allowing cross-cultural compar­
isons. In the nineteenth century, evolutionist writers possessed
fairly rudimentary conceptual tools for this task. In the domain of
law, the most frequendy applied criteria were the transitions from
one kind of family organization to another (as demonstrated by
Maine, Bachofen, Morgan and Engels), or the classification of
societies as state or non-state. But, in this scheme, all evolution­
ary development should be accompanied by increasing complexi­
ty. Thus certain adaptive mutations could not be classed as
evolution. A concrete example helps us understand this distinc­
tion. In the nineteenth century the Amahuaca Indians (Pern)
suffered raids from neighbouring tribes, to such an extent that
their very existence was menaced. As a defence against these
incursions, they adopted a more nomadic mode of existence in
their territory, and divided into smaller encampments; their social
and ceremonial organization became simpler. In this case there
has been an adaptive change, which has allowed this society to
better resist its neighbours, but it does not constitute evolution,
since it involves a transition from the complex to the simple.
The association of evolution with increasing complexity might
appear to be confirmed by physical science. Our universe came
into being fifteen billion years ago. From the outset matter con­
tained within it the information necessary for its ongoing
organization, which is characterized by growing complexity - the
bonding of simpler elements, forming increasingly complex enti­
ties, yet without any noticeable correlative increase in disorder.
The universe evolves with a more or less constant rate of entropy.
Since this evolution is not yet completed, there is no reason to
suppose that, in the long term, humankind should not be
replaced by a more sophisticated species. Darwin stated that it
was natural selection which determined the development and dis­
appearance of living species. However, to establish parallels with
humankind would seem a hazardous enterprise. On the one hand
26 Legal Anthropology
the time-scale is different. The universe may have existed for bil­
lions of years, but humankind appeared only between two and
four million years ago, and we are well informed about only a tiny
fraction of this period. If there is evolution, then we are only at
the beginning. Furthermore, there is an important fact which
could upset the idea of humankind as an evolutionary ‘project’:
setting to one side, until we have more information, the idea
advanced by certain quantum physicists that matter can itself
have some kind of existence, it remains true that, in compari­
son with the animal world, humankind stands apart in having a
self-knowledge and a knowledge of the universe of an altogether
different nature, giving it to some extent charge of its own evolu­
tion. Finally, it must be pointed out that there are valid grounds
for criticizing evolutionism for its notion of increasing complexity.
There ethnocentrism lies. It is an easy step to argue from the
transition of the simple to the complex, to the transition of the
rudimentary to the sophisticated, and finally of the primitive to
the civilized. In other words evolutionism carries a value judge­
ment of a discriminatory nature, for the notion of a diachronic
development can easily engender its counterpart, an ontological
hierarchy.
These arguments demonstrate how hazardous and imprecise
notions of evolution and increasing complexity are when we try to
apply them to human societies. However, there is another level on
which evolutionism requires more detailed examination. Should
evolution be seen as rigid and unilinear, or can we assume that
evolution varies from society to society?
18 The unilinear theory o f evolution
Unilinear theories of evolution view human societies as a coherent
and unified whole, subject to global and universal laws, through
which all societies must pass in phases, identical in type and in
order of succession, dovetailing exactly with each other. ‘Savage’
societies, henceforth referred to as ‘primitive’, represent an initial
stage of development through which our own societies have
passed; thus the ‘simplest’ of these primitive societies - fish-catch­
ing, hunter-gathering - are an accurate reflection of prehistoric
societies. Concerning political systems, evolution extends from
systems with no centre to centralized and state-based systems.
Law is found in association with morality and religion; a progres­
The Development o f Legal Anthropology 27
sion from the social group based on custom to the state based on
law. Law emerges as a specialized instrument with the power of
sanction (the appearance and development of the judiciary), from
more ‘primitive’ forms where disputes are settled by those
involved (vengeance), to civilized societies where disputes are set­
tled, to an ever-increasing degree, by a third party (mediator,
arbitrator, judge), whose powers increase with that party’s status
in the society at large. Some textbooks on the history of law echo
this transition: the perils of private vengeance carried out by
‘gentes’ or feudal warriors are followed by internal peace achieved
by the gradual substitution of the right to wage private wars with
the control exercised by the city-state or the monarchic state. If
evolutionism is frequently encountered in the history of law, it has
had less influence in social anthropology, beginning its decline
around 1900, and all but disappearing by 1940.
Legal evolutionist and social evolutionist theories are none the
less erected on the same historical base, first appearing in the
eighteenth century with the breach of cyclical concepts of time.
Vico (1688-1774) first called this notion into question by distin­
guishing, in his treatise on The New Science (1725), three stages in
the development of civilization (poetic; heroic; intelligent and
humane). Voltaire subscribed to this current of thought, as did
Adam Ferguson, who in his History of Civil Society (1767) over­
hauled Vico’s law in identifying three stages (savagery, barbarism,
civilization), which were to be adopted by Lewis Morgan in the
nineteenth century. In 1760 in La Langue des calculs, Condillac
summed up evolutionist thought well, as it was perceived at that
time: ‘we, who believe ourselves knowledgeable, need go amongst
the most ignorant peoples to find out how we began to make
progress: for it is our beginnings that we need to discern; we
know little about them because so much time has elapsed since
we were disciples of nature.’ More recently, the earliest theories
of Lucien Lévy-Bruhl (to which he was to return at the end of his
life, under the influence, notably, of Bergson) bear witness to the
last stand of evolutionist thought: from the ‘prelogical’ modes of
thought of savage societies, with no facility for abstraction (many
traditional societies do not indeed have an explicit legal code,
hence the resort to a processual analysis of behaviour to describe
their legal system: cf. below, no. 27), we arrive at civilized
thought, characterized by superior performance. Claude Lévi-
28 Legal Anthropology
Strauss was able to expose the above distinction as a fallacy,
demonstrating that both modern and traditional societies have
recourse to abstract and rational thought, but use it in different
ways. In a similar vein, it was as late as 1935 that the first edition
appeared of A. S. Diamond’s The Evolution of Law and Order,
which resurrected, and applied to law, Morgan’s old ternary clas­
sification. However, it was the nineteenth century that witnessed
the greatest flourishing of evolutionist thought, notably in legal
theory.
19 Evolutionist theories of law in the nineteenth century
The nineteenth century was the century of ‘cathedral-building’, to
borrow Negri’s phrase. Armed with evolutionist precepts, attempts
were made to write the comparative history of all known societies,
exotic as well as Western, linked by the constants of the same
diachronic mechanisms. But these writers were not fieldworkers.
They studied anthropology as if it were history, working in their
studies from a very wide range of sources, which only accentuated
their propensity to make hasty judgements, which were later to be
found wanting by ethnographic observation. European writers on
law were to become part of this trend.
In 1878 the first number of Zeitschrift fur vergleichende
Rechtswissenschaft appeared, directed by F. Bemhoeft, G. Cohn
and J. Kohler. This periodical marked the beginning of the school
of comparative jurisprudence. This school set itself the task of
widening its frame of reference in order to elaborate a general the­
ory of the evolution of law: the traditional study of Roman and
Germanic law was to be complemented by more exotic legal sys­
tems. The first issues were more descriptive than comparative,
but, progressively, methodological and theoretical contributions
became more frequent. Oriental societies were much studied;
interest in African societies developed only later. At the same
time, it may be noted that contributors to the Zeitschrift showed
more interest in laws than in customs and in norms than in
behaviour. This bias is of course evidence that these writers found
it difficult to free themselves from the Western legal tradition.
Thus the innovative element of the contributors to the Zeitschrift
was to encourage writers on law to examine systems of law that
were foreign to them; this, however, did not result in any devel­
opments in theory. The attempt was a courageous one and
The Development o f Legal Anthropology 29
occasioned surprise amongst Italian writers on law, for whom
legal ethnology was closely identified with Roman law.
Furthermore, a considerable body of data was collected, which
encouraged writers to prefer facts to pure speculation.
The first major attempt at synthesis in evolutionist theories of
law is to be found in the work of H. E. Post (although it was the
Zeitschrift group which founded German legal ethnology), notably
in his Ethnologische Jurisprudenz,‘ published in 1893, where he
stated in the opening pages: ‘When we fully understand legal eth­
nology, we will have uncovered a universal system of law, an
expression of the will and power of man.’ In the two volumes of
this study, Post reviews the legal systems of many societies, repre­
sented thematically (marriage, succession, penal law, commercial
law, etc.), and gives emphasis (though not unduly) to institutions
with public, rather than private, jurisdictions. Post’s work is
characterized by its notion of universality: the study of all legal
institutions in all societies. This encyclopaedic vision is based on
a conviction: law is a universal phenomenon, therefore a unitary
theory is possible, for, in Post’s own words, the guiding principles
of human law are ‘simple, grandiose and clear, like the laws gov­
erning the stars’. He presented a system of thought which bears
the mark of the Ecole Historique du Droit, the Pandects, and the
theories of Savigny and Iehring. This consisted in the elaboration
of a number of general principles collected together in an ideal
code which lists all the possible historical manifestations of a par­
ticular legal institution. Post enjoyed considerable prestige in his
own period, greater, in fact, in Italy than in Germany. P.
Bonfante, the great Romanist, was particularly influenced by him,
attempting to improve the understanding of the Roman law by
using the information furnished by the ethnographers of tradition­
al societies.
Italian writers were also influenced by evolutionist thought.
From 1890, G. d’Aguanno set himself the task of studying the
origins of law, beginning with prehistoric societies, again using
ethnographic data. In the first years of the twentieth century sev­
eral articles appeared in the Rivista Italiana di Sociologica which
reveal the same preoccupation. However, G. Mazzarella stands
out amongst the Italian evolutionist theorists of the beginning of
the century. His methodology, according to A. Negri, consists of
‘a pathetic example of lucubration devoid of all rationality and
30 Legal Anthropology
common sense, with pretensions to logical rigour and precise con­
struction based on the calculation of probabilities and mathematical
systems’.
So far we have cited only German and Italian writers. What
about France? We must concede that France continues to be
conspicuous in its absence from the principal debates in legal
anthropology. Not that France lacks authorities, such as Mauss
and others (see below, no. 46). But they did not produce major
theoretical syntheses. Some of Durkheim’s work is nevertheless
worthy of mention. Remembered principally as a sociologist, he
also showed interest in traditional societies. He attempted to
marry functionalism and evolutionism. In his study De la division
du travail, he tries to understand how societies pass from a primi­
tive state to modernity. The mechanical integration of primitive
societies is allied with a repressive system of law. Such societies
have no division of labour, but at the very most a statutory hierarchy
(leaders and priests, adults, non-adults, etc.) and are characterized
by an all-embracing collective conscience. Law and morality are
intertwined, and law is essentially penal law, since any threat to
the statutory authority is perceived as a threat to the society as a
whole. In contrast, the organic integration of modern societies is
allied to restitutive law: since society is divided, its members ben­
efit from their membership of a group in their dealings with the
wider society. The violation of legal norms is no longer regarded
as a violation of the whole social order; law loses its penal character,
it becomes divided into several parts (civil, and notably commer­
cial); penal law continues to exist, but does not develop as rapidly
as other areas of law. Law becomes, in essence, ‘restitutive’,
because society is predominantly concerned with regaining the
equilibrium which has been disturbed by infringement of laws.
This theory clearly belongs to the evolutionist school: it continues
to divide humanity into two categories of society, with contrasting
systems of law and integration. The theory also remains intensely
speculative: it exaggerates the overweening character of collective
consciousness in traditional societies, and neglects the fact, subse­
quently demonstrated, that all societies have both repressive and
restitutive laws.
Omissions such as these account for the decline of evolutionist
thought, which we will now chart.
The Development o f Legal Anthropology 31
20 A critique of evolutionist legal theory
From the end of the nineteenth century, social anthropology
begins to leave its evolutionist proponents by the wayside. Franz
Boas (1858-1942), an American anthropologist of German ori­
gin, a specialist in Inuit and North American Indian societies,
denounced ‘armchair anthropologists’ and the omissions con­
tained in their grandiose historical reconstructions, favouring
more modest but rigorous studies, on the basis of actual observa­
tion of societies. He is the founder of cultural relativism: for him
societies are in essence diverse, because humanity inherits only its
genetic make-up, further development depends on specific physi­
cal and social environments. In practice, there is little point in
looking for large unitary schemes; variety rather than similarity
prevails.
Albeit from a different point of departure, the diflusionist
school also formulated, contemporaneously, a critique of unilin­
ear evolutionism. From 1911, Fritz Graebner elaborated the main
concepts. There are cultural complexes, a body of cultural ele­
ments held together by organic links. Identical cultural complexes
exist in different parts of the world which may be assumed to
stem from a common origin, a single cultural area (‘Kulturkreis’)
from which diffusion stemmed. The diffusionists stress the role of
cultural contact in facilitating diffusion: whereas Kulturkreis repre­
sents the original form, the cultural complexes diffused around
the world are versions mediated by borrowings from other cul­
tures during the process of diffusion. Without rejecting the role of
history, dififusionism condemns the rigidity and uniformity of uni­
linear evolution.
As usual, legal writers took some time to react.
An initial contribution was made by M. Schmidt in 1918 in the
Zeitschrift? supporting diffusionist theory. However, a full reaction
against evolutionist thought based on the methodology of the
Kulturkreise came only with another article in the Zeitschrift, writ­
ten by Trimbom.3 He criticized earlier writers for dwelling on a
formal analysis of legal rules without taking enough note of eco­
nomic and sociological considerations, advocating monographs
which were devoted to a single society in all its aspects rather than
wide-ranging syntheses. The methodological concerns of
Trimbom are analogous to those of Boas, who also placed mono­
graphs before syntheses.
32 Legal Anthropology
It would appear that in Germany, at least, legal ethnology played
a role in increasing the distance between ethnology and the disci­
pline that engendered it, namely history. This cleavage in the two
disciplines became more pronounced with the work of Thumwald,4
founder of modem legal anthropology (‘Rechtsethnologie’). This
work countered the evolutionist theory of Post, arguing that there is
little to be gained in trying to bring together the laws of traditional
and modem society in one theory, for such are the differences in
technical knowledge and social organization that the distinctive fea­
ture is diversity; this also applies to the legal systems of these
societies.
Through these writers we can discern a shift in theory, begin­
ning at the turn of the century: a rejection of universal historical
laws as applicable to development in the legal domain; attention
is drawn to the diversity of legal systems rather than their unity;
there is an insistence on the quality of the methodology, well-
researched monographs and the abandon of grandiose syntheses
for which, assuming they might one day be relevant, the time is
not yet ripe.
In line with these theoretical developments, the experimental
field, namely the colonies in the case of the main European
nations, provided a setting for the development of applied
anthropology, as a reaction to the excesses of purely theoretical
anthropology.
21 Applied legal anthropology
The development of applied legal anthropology is closely associat­
ed with the availability of colonial territories. Germany found
itself in a weak position in this respect, since the Treaty of
Versailles had deprived it of colonies. Furthermore, in 1939,
under the influence of the Nazis (with whom Thumwald had
compromised himself), the editors of Zeitschrift banned all non-
German authors. Once the war was over, there were nine years of
silence, after which German legal ethnology followed a course
which emphasized philosophical and methodological questions.
In Italy, colonial conquests, especially in Somalia, gave scope for
writers to undertake fieldwork, mainly orientated towards the
acculturation of indigenous societies and the workings of colonial
administration. Theoretical considerations were rare, and those
The Development o f Legal Anthropology 33
that were expressed, such as those of Cerulli and Colucci,
opposed the evolutionist theories of Post and Mazzarella. In
France, applied anthropology was also practised; writers were
mainly interested in the African colonies, a trait which even today
dominates French legal anthropology. These writers studied cus­
tomary law: but though the first studies were carried out in 1897,
they were, in effect, partial and unsatisfactory.
One would be forgiven for thinking that, confronted with this
dual movement, both theoretical and practical, evolutionist
thought would be relegated to the past. However, even if its
shortcomings were too obvious to be denied it was, nevertheless,
a child of its time. A number of writers, conscious of these origi­
nal shortcomings, resurrected these evolutionist theories and
honed them anew.
22 Unilinear evolutionist theories in historical perspective
Towards the end of his life, Sir James Frazer made the following
reply to someone who asked him whether he had ever seen any of
the primitive people to whom he had devoted his studies: ‘God
forbid!’ Evolutionists have been taken to task for not venturing
into the field. However, we must accept that at the time such an
idea appeared incongruous; anthropologists believed that consci­
entious observers, whose services they retained throughout the
world, could save them a great deal of time. The dimensions of
the task they had set themselves dictated that they could not
themselves produce monographs. Also, it is easy to criticize the
obvious drawbacks of unilinear evolutionism, without mentioning
its merits. We will list a few of the latter.
Evolutionists succeeded in tearing themselves away from the
study of Roman law to contemplate the exuberant diversity of
other legal systems. To their credit they described them as sys­
tems where socioeconomic data could play an important role.
This hardly accorded with the ideas of the majority of legal writ­
ers at the time. We are perhaps still able to understand the emo­
tion - and even the intellectual intoxication - of Bachofen when
he wrote: ‘Instead of chaos, we apprehend a system; instead of
the arbitrary, we recognize necessity.’ In fact, he was the founder
of comparative law, which Maine was to teach twenty years later
at Oxford. We should also note that, despite its errors, evolution­
ism is not to be confused with racism, to which it is opposed: cul-
34 Legal Anthropology
tural differences are not congenital or irremedial, they are caused
by differences in technology and economic factors.
23 The neo-evolutionists
Attacked from a variety of different theoretical standpoints, evolu­
tionist theory did not reappear until 1943, when it adopted a
more elaborate guise.5 A few years later, Julian Haynes Steward
suggested the concept of multilinear evolution of which Maine
had been a precursor: the observation of unrelated societies is
used to identify certain common features in cultural change.
However, in contrast to unilinear evolutionists, he believed that
universal laws could not be deduced from such parallels. In 1963,
Cameiro, who contested this restriction, introduced the concept
of differential evolution: each society facilitates the evolution of
the elements which make up its cultural system - including law -
to varying degrees and following a different measure; again this
had been foreshadowed by Tylor in 1871. Furthermore, dealing
with an important omission of nineteenth-century authors, the
neo-evolutionists strove to develop precise indicators of cultural
change: in 1956 Naroll developed an ‘index of social development’;
in 1963 Cameiro created an ‘index of cultural accumulation’,
where law is represented alongside other indices, quantifiably tab­
ulated and expressed graphically and numerically. We may note
that the presentation of these tables clearly portrays and gives
pride of place to one of the key ideas of evolutionist thought,
which is as questionable as ever, namely that there are more and
less developed societies. In fact the mathematical character of
these graphs should leave no one under any illusions: they are
underpinned by an ideology which is not only classificatory, but
hierarchical.
The neo-evolutionist writer most closely associated with law is
E. Adamson-Hoebel who in The Law of Primitive Man, published
in 1954, develops his concept of the ‘trend of law’, an overview of
the evolution of law. For Hoebel, there is no unilinear evolution
of law, but viewed globally there is, as Spencer stated, a transition
from the simple to the complex. As regards the mode of produc­
tion, for example, the chronological sequence between pastoralism
and horticulture can be reversed (pastoralism need not necessarily
precede horticulture); it will vary with prevailing ecological condi­
tions. Moreover, not all societies have traversed the whole range
The Development o f Legal Anthropology 35
of evolutionary stages (thus the Inuit have in essence passed
directly from hunter-gathering to modernity). Yet the general
direction of evolution is revealed in the increase of legal norms
and procedures involving disputed claims, and in the settling of
conflict. Hoebel does not argue that societies with ‘minimal law’
should be considered as qualitatively ‘inferior’ to others. Thus in
general terms, the most primitive societies, such as hunter-gather­
ers, have little law, not because they are more anarchic than civi­
lized societies, but simply because they have less need for law.
Their greater homogeneity and the fact that relations are face to
face mean that conflict is rarer, and recourse to law less frequent.
In fact law begins to develop only with the advent of agriculture.
Legal norms are more explicit, more detailed and greater in num­
ber; the task of administering the resulting sanctions passes from
kin to society and its representatives, public law emerges.
Finally, the political scientist J. W. Lapierre may be cited in the
context of the above studies. According to Lapierre the state is
part of an evolutionary process which does not always have the
same form, yet is none the less the response to a common deter­
mining factor. Societies with a specialized political system, differ­
entiated to the degree which we associate with the state, are
societies which were confronted with the imperative of change.
This may have been due to a number of factors, internal or exter­
nal. These societies were able to adapt to this imperative in
achieving the considerable innovation of state formation: but not
all societies succeeded, and those which failed have disappeared.6
In contrast to Clastres, Lapierre does not believe the state is a
scourge, but on the contrary a product of adaptation and change.
In our view these neo-evolutionist theories show considerable
refinement when compared with those advanced in the nineteenth
century. It cannot be denied that all societies change, that muta­
tions are either adopted or rejected; that the form these changes
take is variable; that they do not necessarily follow each other in a
rigid manner; that this variability does not preclude the search for
general laws and comparative methodologies. All this is to the
credit of neo-evolutionist theory. Yet some reservations have to
be made. On the one hand the very use of terms such as ‘evolu­
tion’ and ‘increases in complexity’ perpetuates the old notion of a
qualitative hierarchy of societies, associated with an unsustainable
philosophical position (and students should be aware that behind
36 Legal Anthropology
all theorizing, robust though it may be, there lies a philosophical
stance). Further, the general tenor of Hoebel’s ‘trend of law’
demands closer examination. Methodologically, as we shall see,
Hoebel rightly stresses that law, in traditional societies, consists of
processes rather than explicit norms. But can one conclude that
evolution determines not only the forms that legal phenomena
take (from processes to norms), but also their quantitative growth
and qualitative complexity? Or, put another way, is it not the case
that the processual method identifies legal systems in traditional
societies which are every bit as complex as those of modern soci­
eties? These questions lead us to the second major theoretical
divide in legal anthropology, a debate which lasted half a century.
B: The identifying of law: processual and normative analysis
24 A new theory: functionalism
Bronislaw Malinowski was bom in 1884 in Cracow and, after
studying physics and mathematics, decided to devote himself to
anthropology after reading the works of Frazer. The First World
War overtook him in Australia where he was studying the kinship
systems of the Aborigines. His Austrian nationality meant intern­
ment, but he persuaded the Australian government to transfer
this into a stay with the Aborigines, where he was to remain for a
considerable period of time. The result of this experience was The
Argonauts of the Western Pacific. In the following years,
Malinowski continued to devote much of his energy to work in
the field (notably in the Trobriand Islands, and Melanesia), mak­
ing a break with deskbound anthropology. He was offered a chair
in anthropology in London and acquired British citizenship, but
made frequent trips to the United States where he decided to live
when the Second World War broke out. He died soon afterwards,
in New Haven, in 1942.
Malinowski was the founder of a new theory, functionalism.
Two aspects of his work are particularly relevant to legal anthro­
pology. On the one hand his insistence on work in the field
brought law closer to the real world: law did not reside solely in
the abstract principles of legal codes, but also in concrete phe­
nomena, which could be understood by direct observation. On
the other hand his vision of society as a cultural system, whose
The Development o f Legal Anthropology 37
component parts were interconnected, led him to stress the
dependence of law on other elements, biological or cultural. He
did, however, have a tendency to confuse law with what produced
it. Nevertheless, his influence on legal anthropology was seminal.
Processual analysis, founded on an epistemological base very dif­
ferent from the normative approach, flows naturally from his legal
concepts (the term ‘processual’ in this context involves the study
of the processes involved in the settlement of disputes, whereas
jurists in the private law tradition ['privatistes’], employ the term
in describing procedure).
25 The two paradigms: rules and processes
Normative analysis is defined as the prevailing idea of law as
taught in countries with a civilian tradition: law consists, in
essence, of a number of explicit and written norms contained in
texts and in most cases presented in codified form. Amongst
Western jurists, those belonging to the common law tradition
have a more flexible approach and they favour processual analy­
sis; common law systems refer more often to legal precedent than
codified law. This is no doubt one reason why the processual
approach, and the ‘case method’ on which it is based, have had a
greater following in the English-speaking world. Moreover, the
preference expressed for norms is also reflected in the way that
the violation of these norms and the processes involving disputes
are- described. These are choices of a philosophical order.
Normativists believe that since social life is governed by rules,
normal behaviour means conformity, and conflict may be
described as pathological behaviour. In general these ideas go
hand in hand with the affirmation that societies, in order to per­
petuate themselves, need centralized institutions to promulgate
these rules, and legal instruments to sanction them. On the other
hand, those who emphasize process believe humankind co-operates
with its fellows essentially out of self-interest. When this self-inter­
est is not gratified by respecting explicit norms, either because
there are none, or because their observation is not sufficient to
resolve the problem, individuals consider these norms less impor­
tant than the actual behaviour of their fellows, with whom they
are enmeshed in a tissue of reciprocal relationships. Far from
being a pathological state, conflict is not only a normal adaptive
process but even, according to P. J. Bohannan, both a necessity
38 Legal Anthropology
and a practical reality: conflict is one of the elements in the evolu­
tion of the individual and of humankind. It can only be regulated,
not suppressed. Whilst these two paradigms indicate philosophi­
cal stances, they nevertheless have important legal consequences,
as we shall see.
26 Normative analysis
It would be a mistake to associate normative analysis solely with
positivist Western legal theorists. Anthropologists and sociologists
also employ this analysis. The most well-known definition is that
of Radcliffe-Brown and Roscoe Pound: law is a form of ‘social
control which is exercised by the systematic use of the power of
which a politically organized society disposes’. For Hoebel, ‘a
social norm is juridical if the act of ignoring or breaching it is reg­
ularly met, either by threats or actions, with the application of
physical force by an individual or a group enjoying the acknowl­
edged social privilege of behaving in this manner’. A great deal of
the research in the field carried out in the 1930s and 1940s was
guided by these principles and invariably produced lists of norms
reflecting the standpoint of civilian and common law systems.
They were often used as manuals by colonial administrations,
which sometimes acted as courts of appeal for indigenous courts.
Yet it would be unjust thus to reduce the work of the norma-
tivists; this would be no more than caricature. Some studies based
on the analysis of norms are, on the contrary, the great classics of
legal anthropology. This is the case with The Cheyenne Way, by
Llewellyn and Hoebel, and The Judicial Process among the Barotse
of Northern Rhodesia, by Gluckman.
However, normative analysis has grave drawbacks when it is
viewed in the context of an intercultural perspective, a properly
anthropological perspective.
On the one hand it excludes many societies, both centralized
and uncentralized, from the field of law. Here again we are con­
fronted with a philosophical stance which colours our definition
of law. Depending on whether the definition is inclusive or exclu­
sive, one can, almost at whim, limit it to ‘civilized’ societies or, on
the contrary, extend it to other societies. The identification of law
with a corpus of abstract and explicit rules, associated with an
instrument of sanction and based on the repressive use of force,
considerably reduces the field of law. It might seem slightly sus­
The Development o f Legal Anthropology 39
pect that, as if by accident, the field is narrowed down to the
West (apart from the West there are few societies, like China
under the Ch’in dynasty, in 221-206 BC, or the Aztecs, who have
a normative concept of law). Most traditional societies do not
possess such a corpus of law. We will consider a specific example.
If we asked a Comanche Indian the question ‘What rule would be
applied in the case of the abduction of a woman, taken from her
husband by a member of the tribe?’, it is probable that the Indian
would reply: ‘I don’t know. . . . But I remember that many moons
ago, when my mother’s sister was taken from her husband by so-
and-so, we acted in the following manner . . .’
Finally, normative analysis suffers from a number of serious
shortcomings when we attempt to apply it to societies we describe
as ‘civilized’, and to those possessing a codified system of law.
Throughout most of its history, China was dominated by
Confucian thought, according to which the abstract rules of ‘Fa’
were not usually used to describe the social order and settle dis­
putes; moral precepts (‘Li’) and conciliation were considered
more appropriate. Law was avoided and, in the main, seen as
good only for barbarians (foreigners), and individual laws were
considered useful as models, not as imperatives. Even in Rome,
throughout the republican period, few laws were enacted. There
were 800 leges rogatae from the beginning of the republic to the
principate, only 26 of which concerned private law. This was
mainly regulated by reference to ancestral custom - mos maiorum
- whilst most laws (leges imperfectae) applied law without equip­
ping it with any sanction. We also have evidence in Rome of the
decisive role of magistrates in the development of law: law could
evolve through decisions taken in a particular case. Even the cele­
brated Law of the XII Tables is not a code in our understanding
of the term, but rather the transcription of a number of customs.
Furthermore, when rules took an explicit form, they were not
automatically adhered to: not only did some lapse, but many were
kept only in an irregular fashion. Finally we must note that even
in our society where everyone is supposed to be aware of norms
(‘Nemo censetur ignorare legem’), in practice this is far from being
the case: the citizen is often ignorant of the law, or is occasionally
made aware of it by the media. It follows, from these few exam­
ples, that normative analysis cannot encompass all legal phenom­
ena, and does not include all societies. An examination of the
40 Legal Anthropology
work produced by the advocates of this theory shows that most of
these writers (notably Gluckman and Fallers) carried out their
research in societies which were politically centralized and had a
clearly identifiable legal apparatus. This method which, it must be
recognized, chooses to focus on societies which dovetail with the
philosophical bias of writers, has its parallel in that of the advocates
of processual analysis. Here the focus is on acephelous societies,
where disputes are mainly settled without recourse to law.7
27 Processual analysis
In Crime and Custom in Savage Society (1926), Malinowski’s
thinking was a new departure from normative analysis (which had
been the traditional methodology), refusing to associate law with
sanctions emanating from a central authority. Law should be
defined according to its function, and not by its procedures.
Malinowski stresses the function of reciprocity: the bond that is
formed between individuals and groups, governing life in society,
is made up of reciprocal obligations; it is the reciprocity of these
obligations which holds the society together, rather than con­
straint exercised by a central authority or state. In other words,
the behaviour of an individual is governed more by social rela­
tions than by norms and institutions. But how do we define legal
behaviour? For most writers the way law is experienced and
applied by individuals is best understood in observing conflict.
Law is thus better explained by process - the way conflicts are
settled - than by norms, although the latter may play a part in the
settling of disputes.
This emphasis on disputes led to the exploration of all their
aspects: not only the phase in which the dispute is settled, but the
history of the dispute, the nature of the relationship binding the
parties, the way the dispute is settled (whether by the actors or by
the intervention of a mediator, a referee, or a judge), the way in
which the decision is in practice applied or avoided, etc.
Processual analysis is based on the analysis of cases, the ‘case
method’, scrupulously collected and described.
The Development o f Legal Anthropology 41
28 Towards a synthesis
Processual analysis offers obvious advantages. To begin with, it is
more appropriate, from an anthropological standpoint, for intercul-
tural comparisons than normative analysis, and brings a number of
societies back into the realm of law. Philosophically, it is opposed
to the advocates of the universality of law. Also, processual analy­
sis explains change better than normative analysis, and this is
such an important feature in our own period, where acculturation
is, increasingly, a dominant issue. Finally, in contrast with the
theory of ‘living law’, it allows ideal perceptions of law to be inte­
grated with practical experience of law; the judgment made in set-
ding a conflict tends to become a model for the settling of similar
cases in the future (our own case-law {jurisprudence] is based on
this notion). However, whilst processual analysis permits a wider
definition of legal phenomena than the normative approach, the
case method on which it is based cannot pretend to encapsulate
the totality of law, for law cannot be reduced to disputes. It is the
case that obedience to law is the most common attitude towards
law: irrespective of Malinowski’s view, the individual’s concern is
not a constant preoccupation with articulating behaviour around
the defence of his or her own interests. A rule is obeyed because
experience of life or education has allowed the rule to become
internalized, or because the sanction is feared, or because it is
considered fair.
To sum up, humankind can experience law beyond conflict. We
agree with J.-L. Comaroff and S. Roberts (Rules and Processes,
1981), who studied the Tswana, that we have to replace the nor-
mative/processual dichotomy with an approach embracing both of
the orientations we have described. Such an approach should be
one of synthesis. The study of norms is not without merit, not
only from the standpoint of content, but also in the way parties in
a dispute perceive them and use them as a basis for negotiation in
the course of the dispute. Rules are more than a framework, they
are the stakes. We should also study why rules are applied,
ignored, or violated. There may also be something to be gained in
observing the consequences of a dispute.
In our description of processual analysis we noted that legal
anthropology had concentrated on the concrete analysis of legal
phenomena and behaviour. As a corollary we will discover that
one system of law - usually that of the state - may conceal others.
42 Legal Anthropology
Building theory on this palimpsest and its secrets has been the
aim of those anthropologists who have focused their attention on
pluralism.
C: T h e identification of law: legal pluralism
There may be disagreement about how to define legal pluralism,
but there is also little doubt that this is the issue presently concen­
trating the minds of legal anthropologists. Legal pluralism stresses
one of the hidden dimensions of law, a dimension particularly rel­
evant to modern societies: only official law appears to exist, the
law of the state, a proposition which inspired the well-known
adage ‘Law equals laws’ [droit = loi\. The advocates of legal plu­
ralism do not agree with this proposition.
Before reviewing the principal theories of legal pluralism, we
must describe the tenets which these theories indict as false.
We discuss first the frame of reference of the state.
29 The rule o f law [l’état de droit] and the law of the state [droit
de l’état]
Currently, in the United States and in France, the state has gone
out of fashion: over the last ten years there has been a crisis in the
ideology of the benevolent state, through which the state legiti­
mated its dirigiste tendencies. However, the state is not bereft of
supporters. The majority of French jurists, trained to revere state
law since its codification under Napoleon, rise to its defence.
When they delineate the features of this panoply of justice which
leads from Merovingian barbarism to the sunlit legal uplands of
the Civil Code, many of them also, just for good measure, take
the opportunity of underlining the merits of the development of
the state and its corollary, the increasingly unified nature of law;
this is contrasted with the disorder of custom. According to the
political scientist B. Barret-Kriegel there has been a gradual evo­
lution towards the rule of law since the middle ages, in which the
state accepts limits to its power in submitting itself to the law.
Also, thanks to the classification and transcription of custom, the
influence of the Roman law and successive codifications, society
became gradually impregnated with law, until the state itself was
ultimately penetrated. We are confronted here with a new version
The Development o f Legal Anthropology 43
of evolutionism, based on a self-fulfilling principle: the more uni­
fied law becomes, the more democratic is society and the more
civilized the state. Barret-Kriegel states, and here there is no dis­
agreement, that even under absolute monarchy the power of the
state was limited by divine right, by the fundamental laws of the
kingdom, by privileges, and, could, ‘in fine’, be challenged in the
name of natural law. Barret-Kriegel also notes that those who
criticize the state fail to make the important distinction between
two types of state: states where the rule of law prevails, where
politics is subject to the law and where power is subject to the
constitution; and the despotic states, where there is no regulatory
system governed by law. It is true that not all states are totalitari­
an, but for the advocates of legal pluralism, all states carry within
them the seeds of totalitarianism. So-called absolute monarchies
were not in reality absolute (except under the reign of Louis XIV)
because they found their path blocked by specific historical cir­
cumstances, namely the highly organized interest-groups in
French society. Yet they aspired to absolutism and used the
panoply of the law to legitimate these aspirations. We can chal­
lenge the argument that a necessary condition of the rule of law is
the unification of law. On the contrary, it is when legal pluralism
is attacked by central authority that dictatorship arises. It seems
entirely logical for the state to attempt to monopolize law. In the
Western democracies, this has never been achieved, and central­
ization remains a myth, but a very powerful myth to the extent
that it has penetrated the thinking of most legal theorists in a
quasi-monistic form: in relation to the law, case-law and doctrine
count for little (some do not even recognize doctrine as a source
of law).
All societies, traditional or modem, are plural. However, as M.
Alliot has noted, the former affirm this reality, the latter deny it.
In both cases, the security of the individual resides in the pluralist
nature of society, for the various groups are independent of each
other. But whilst Africans openly recognize this, Europeans deny
it and, encouraged by the dominant tendency in legal thought,
affirm on the contrary that the rights of the individual are, or
should be, protected by the state (hence the increase in the decla­
ration of rights), and thus encourage the state in extending its
hold over law. This is why, under the veil of the rule of law, the
law of the state lies concealed, continuously attempting to deny
a
44 Legal Anthropology
the existence of different legal systems which help society function.
We will examine these hidden legal systems in a rapid historical
sketch, and then examine modern theories of legal pluralism.
30 Legal diversity and the unitary myth in the history of
Western law
Although the principal theories of legal pluralism took shape in
the course of the twentieth century, some Romanists and histori­
ans of law have drawn attention to the phenomenon of legal
diversity in the past of Western societies.
Rome did not impose Latin and its gods on conquered peoples,
nor, in like manner, did it impose a uniform and complete accep­
tance of its system of law. As opposed to modern colonialists
who, in justifying the prohibition of customs which ran contrary
to their value system, invented the notion of colonial law and
order, the Romans promulgated very little legislation against local
customs which were at variance with Roman law: thus the
Romans could not be described as evolutionists and had no cul­
tural policy. Local jurisdictions continued to apply local law. In
situations where Roman law is introduced into the local legal
process, it is often clumsily executed: there is a desire to be
Roman, which in most cases falls short of the mark (a classic
attempt on the part of subject peoples to emulate those with the
dominant role). There are examples of Roman law being influ­
enced by local custom, Diocletian was uneasy about this very ten­
dency. Thus the Romans applied no hard and fast rules on the
issue. In the Greek world, they were happy to adopt the principal
elements of the laws they found there. Gaius was to attempt to
meet this diversity by recourse to ‘ius gentium’, reformulating
some of Aristotle’s ideas: ‘Every people that is governed by
statutes and customs observes pardy its own particular law and
partly the common law of mankind. That law which a people
establishes for itself is peculiar to it and is called lus civile (civil
law) . . . whilst the law that natural reason establishes among all
mankind is followed by all people alike, and is called lus gentium’
(Gaius, 1, 1, trans. F. de Zulueta [Oxford, Clarendon Press,
1946]). In addition, a further source of legal diversity in the
empire exists in the form of ‘common law’ [droit vulgaire] - the
terminology is symptomatic of the contempt with which legal
writers regard non-official rights: practical applications of law,
The Development o f Legal Anthropology 45
often simpler than the law bequeathed by the great juriconsults,
which we erroneously associate with the Roman law. The
Romans, then, are to be remembered for their considerable legal
diversity. Mitteis was the first Romanist to draw attention to legal
pluralism within the empire ([Reichsrecht und Volksrecht in dem
ôstlichen Provinzen des rômischen Kaiserreichs [189If).
Following the breakup of the western Roman Empire, the bar­
barian kingdoms that took its place nearly all proclaimed laws
which were to form compilations with their own particular char­
acteristics: each individual was subject to the law of his people.
With the gradual merging of peoples, law, in the middle ages,
once more became territorial, yet it remained diverse in character.
Customs were locally based, whilst legal pluralism was a logical
consequence of social ranking: there was feudal law, based on
military service (the rules governing the succession of fiefs);
canon law, based on Christian principles (which prohibited the
lending of money at interest); and, later, burgess (‘bourgeois’)
law, applied to commercial activities (commercial law); and, final­
ly, royal law, which tended to embrace the remaining categories
in the name of state formation. These legal systems, whose exis­
tence and validity were well recognized (though less and less as
the monarchic state grew in influence), applied different rules to
the same legal situation: canon law treated marriage as a consen-
sualist instrument whereas feudal law emphasized kinship group
agreement above the status of individuals. Deadlock could be the
result, but less often than one might suppose, because conflict
could often be avoided thanks to the plurality of jurisdictions.
Gradually, the monarchy eroded this legal and judicial pluralism,
but was never able to eliminate it completely: we are reminded of
Voltaire who, whilst travelling in Lorraine, remarked that customs
seemed to change more often than post-horses.
The republic [in France] proclaimed the equality of all citizens
before the law, abolishing interest-groups and privileges alike. In
1800 Napoleon ordered that surveys be conducted throughout
France to determine local particularisms in law, the better to sup­
press them. Four years later, the Civil Code became the symbol
of a society subject to the same law. The teaching of law for the
next centuiry was centred on this monument. After centuries of
development, the myth was finally established: one system of law
for all, with the state as guardian.
JJ
46 Legal Anthropology
At present, it requires a measure of intellectual laziness to
believe in the monistic legal myth: not only do ethnic minorities,
in practice, in certain areas, apply their own law, but more to the
point, as J. Carbonnier has remarked, in reality law multiplies the
options stemming from a single legal situation (marriage settle­
ments, multiplicity of grounds for divorce (‘faute’ [one or more
violations of the duties and obligations of marriage: TN], break­
down of married life, mutual consent, ‘double aveu’ [recognition
by the second partner of the first partner’s statement regarding an
intolerable state of domestic affairs: TN], etc.). The number of
texts published each year (over a thousand laws, and no fewer
decrees) also casts some doubt over the disappearance of particu­
larisms.
The law of classical antiquity and, subsequently, French law, is
thus characterized by a very diversified range of legal situations,
fully recognized in most historical periods, and denied in recent
centuries by the unitary myth. But is all legal diversity synony­
mous with legal pluralism, in the contemporary use of the term?
One of the objectives of contemporary theory will be to clarify this.
We turn now to theoretical constructs.
31 A pluralist approach to legal anthropology
Traditional legal teaching presents its subject-matter as an
attribute of a global entity: thus we speak of French law, English
law, etc., divided by comparativist writers into a handful of main
categories. This view is based on the assumption that a society
has a single legal system, which controls the behaviour of all its
members, and on two corollaries, that the subgroups of a society
(associations and friendly societies, groups based on residence
and kinship) do not have any legally independent status, and that
societies which do not have a centralized political structure do not
possess law. From the 1930s onward, these assumptions began to
come under attack. On the one hand they did not correspond
with the evidence furnished by ethnographic observation: certain
workers in acephelous societies found it difficult to accept that
these societies had no law and, in a more general manner, it
became apparent that even in societies with centralized political
power, law did not only emanate from the higher political reaches
of power. On the other hand, towards the beginning of the 1950s,
The Development o f Legal Anthropology 47
functionalism also came under attack: it was criticized for treating
societies as closed, homogeneous systems. These various com­
ments, in as much as they underlined heterogeneous phenomena,
opened the door to sociological and legal pluralism.
Mauss and Malinowski advanced the notion that within a sin­
gle society, several legal systems could interact, but went no fur­
ther in developing the idea. In fact, they were not the first to
come up with the concept: its origins lay with a undeservedly for­
gotten writer of the Adat Law School, Van Vollenhoven, who, as
early as 1901, stated that the associated subgroups within a soci­
ety created their own law, an idea which would be taken up and
put to the test by Dutch workers in Indonesia. The term ‘plural­
ism’ appeared only in 1939, with the work of Fumivall, author of
a study on the Indonesian economy, but it had a restricted mean­
ing: it was applied only to the analysis of the internal organization
of multiracial societies created by European expansion in the
tropics. Shortly afterwards two monographs were published,
Redfield’s The Folk-Culture of Yucatan (1941) and Gluckman’s
Analysis of a Social Situation in Modem Zululand (1958); whilst
neither used the term pluralism, their analysis was, in essence,
based on this concept, since they discussed the interactions
between local communities and the prevailing normative order of
society. However, it is especially the contemporaneous work of
Llewellyn and Hoebel, The Cheyenne Way (1941) which once
more deserves mention. For these authors the form social unity
takes has a direct bearing on interaction between groups, their
links with third parties, and the way disputes are settled: this will
vary depending on whether members of the same family are con­
cerned, or individuals belonging to different clans. In the first
instance, disputes tend to be settled by compromise, in the sec­
ond by vengeance. It was also apparent that global, official law, if
indeed it existed, could only intercede in conflicts between dis­
tinct groups (Inuit shamans order wife-exchange between bel­
ligerent groups to avoid a chain reaction of vengeance;
alternatively a murderer will go and live with the parents of his
victim), whereas the legal systems within the subgroups of society
exist to hold these subgroups together and ensure their future
existence.
With no further obstacles blocking the way, more studies
appeared in the 1950s and 1960s, addressing multi-ethnic soci-
48 Legal Anthropology
eties in particular, where pluralism was more in evidence:
Radcliffe-Brown (1940) in South Africa; Bolke (1953) in
Indonesia; Little (1955) in Sierra Leone; Van Lier (1950) for the
segmentary societies of the West Indies. Nash, in 1958, described
Guatemala and Mexico as ‘non-nation states’, each containing
two types of interacting societies. In the 1960s fieldwork geared
to the study of pluralism increased, and, in France, G. Balandier
developed dynamic anthropology, which submitted the colonial
situation to concepts similar to those used by pluralist theories.
Thus these various researchers based their work, in the main, in
exotic locations. However, the same phenomenon had also been
discerned in modern societies by the sociologists Ehrlich and
Gurvitch. Both refused to identify law with the state.
32 Sociological theories of pluralism
Ehrlich’s pluralism (1936) is described in horizontal terms. For
him society is not the totality of its individuals, but the totality of
associations contained within it (by associations we understand
subgroups). The individual submits, in the first instance, to the
legal authority of the subgroup. This is above all a co-operative
system of law, harmonizing the interaction between individuals.
However, modern societies also contain state law, which enforces
a general system of law imposed on the legal systems of sub­
groups. This latter law is, in essence, based on conflict, since its
purpose is to regulate the opposing interests of the legal systems
of subgroups. Our own view is that there is no such distinction
between subgroup law and state law: each may be based on con­
flict or co-operation (there are disciplinary procedures within
many subgroups, just as there are forms of state law based on
mediation rather than judgment - the law relating to minors, for
example). Nevertheless, Ehrlich’s theory was in advance of its
time and, apart from the ideas of the ‘Adat’ Law School, initiated
by Van Vollenhoven in 1901, it preceded the theoretical con­
structs of legal anthropology.
Meanwhile, it was Gurvitch in L ’Expérience juridique et la
philosophie du droit (1935) who introduced the idea of legal plural­
ism to France. He studied the history of law to demonstrate that
the unitary principle is not inherent in law’s nature: law in the
middle ages was pluralist, and even if both the absolute monarchy
and the centralization of Napoleon were based on the rationale of
The Development o f Legal Anthropology 49
codification, thus presenting a unitary fiction, research carried out
in our own century has identified legal pluralism. Gurvitch
believed there were three forms of law, ranked differently from
society to society: state law, whose monopoly over law is a myth;
individual or intergroup law (binding individuals or groups
through contract, for example), consisting of social relations oper­
ating through bilateral exchange between groups or individuals;
and social law, derived from social relations through which indi­
viduals combine to form a collective entity (subgroups or
Ehrlich’s associations). The development of state law correlates
with the development of interpersonal or intergroup law, because
it is the state that determines the interaction between groups or
individuals. State law and the restricted forms of integration
resulting from bilateral exchanges are thus related, whereas
non-state law may be defined as the multiplicity of legal sys­
tems generated by social law. Finally, Gurvitch quite rightly dis­
tinguishes between the plurality of sources of law and legal
pluralism itself: there may well be several separate sources of law
(laws, decrees, case-law), even within the monistic approach to
law, but the origin of all these formal sources lies within the state.
In its descriptive wealth, Gurvitch’s analysis has played a fun­
damental role in the history of the description of legal pluralism.
It is also related to a current in legal thought which we must now
describe.
33 Convergence o f legal anthropology and legal sociology
If the tradition of Comte tends to stress the separate nature of the
two disciplines, it is none the less true that in the field of legal
pluralism they appear to converge. The theories of Ehrlich and
Gurvitch have had the merit of contributing precise and well-
developed ideas to certain general concepts in legal anthropology:
law and the state are not coterminous; law derives its existence
from social organization; all societies contain subgroups, each of
which has its own legal system, separate, to some degree, from
state law; state law takes on the role of conductor in this sympho­
ny of different legal systems, since it regulates the relationships
between them; state law, in its monopolizing tendencies, finds a
ready ally in individualism, in so far as individualism weakens
intermediary groups. All these concepts can be claimed as proper
to legal anthropology. In the interwar period, such a formative
50 Legal Anthropology
one for the concept of legal pluralism, anthropology stole a march
on sociology in its development of fieldwork: yet with the excep­
tion of the work of Van Vollenhoven, it was only in the 1970s that
legal anthropology built theory comparable with that of Ehrlich
and Gurvitch. It was thus legal sociology which laid the theoreti­
cal foundations of legal pluralism, whereas anthropology studied
pluralism in the field. We may well ask why there was this near­
simultaneity of interest and observe that, in our modem societies,
the dirigiste tendency of the state, bom of the imperatives of the
First World War, makes itself felt in this very period, and resorts
to unitary concepts of law inherited from the nineteenth century.
L. Ingber’s concepts are related to this problem; he argued that
the oscillations between monistic and pluralist theories of law
depend on the fluctuations in the balance of power between the
state and social groups, as well as developments in the understand­
ing of this balance of power. There is consequently a possibility
that the simultaneous emergence of pluralism in the two disci­
plines is one of society’s reactions to attempts by the state to
extend its field of action. We will give consideration, in due
course (below, nos 36-8) to the theories subsequently developed
by legal anthropologists. To facilitate our understanding of these,
we will attempt a few definitions.
34 Anthropological definitions of legal pluralism
Definitions of legal pluralism in legal anthropology are . . . plural.
The concepts of Lévy-Brühl are slightly hesitant, and are based
on a distinction between a law (the creation of differentiated
political power which may be vested in the state), and custom (a
body of rules belonging to a social group). He recognizes that
every group wields a normative influence which can be used to
control internal relationships, but refuses to identify this influence
automatically with a legal system, arguing that a group’s norms
tend to reiterate the prescriptions of a legal system shared by all
groups. Recent authors adopt a more incisive viewpoint. J.
Vanderlinden (1972) states that legal pluralism is ‘the existence,
within a given society, of different legal mechanisms applied to
identical cases’. Examples of legal pluralism include: patrician
and plebian marriages in ancient Rome; commercial contracts
where a trader and private citizens sell goods according to differ­
ent conditions; diplomatic immunity; the distinction, during the
The Development of Legal Anthropology 51
colonial period, between private indigenous law and the law of
Europeans installed in the colony. For P. L. Van den Berghe
(1973), pluralism is ‘a characteristic, or a set of social characteris­
tics, of several social and/or cultural groups, coexisting within the
same organized society. These groups are interdependent since
they share the same economic system, but maintain a varying
degree of autonomy, possessing a body of distinct institutional
structures in other spheres of social life, notably in the area of the
family, leisure activities and religion.’ Van den Berghe’s definition
has the advantage of more satisfactorily linking manifestations of
legal pluralism with social structure. More recently (1986), J.
Griffiths has put an even greater emphasis on the necessary corre­
lation between sociological and legal pluralism. Griffiths develops
the concept of the ‘semi-autonomous social field’, elaborated in
1973 by S. Falk Moore (see below, no. 37), and describes legal
pluralism as the normal, quasi-universal attribute of all societies.
Legal pluralism stems from sociological pluralism, and no society
is completely homogenous: even segmentary societies are in a
sense divided, whereas modem societies can be seen as extremely
divided. However, and this is where Griffiths’s definition is so
important, and goes so much further than those of his predeces­
sors, individual social fields are not uniformly governed by a sin­
gle system of law. Several kinds of law are normally found to be in
operation: the law proper to the social field under consideration,
the law of one or several other social fields and the law of the
state. Legal pluralism thus consists of the multiplicity of forms of
law present within any social field. The complexity is even greater
if we recognize that the society as a whole is itself made up of a
number of social fields subject to the same process. We are con­
fronted with a veritable galaxy of legal processes, where state law
cannot enjoy a dominant role. In these conditions how do we
explain that the unitary legal myth took root in the societies with
the most divisions, those containing the greatest number of social
fields, one of the main characteristics of state societies? Our view
is that, precisely because it needs to extend its influence over
deeply heterogenous societies, the state needs to deny the exis­
tence of these divisions. This is an imperative which does not
exist to the same extent in traditional societies, which are also
plural, but to a lesser degree, and where in any case political
authority is less differentiated than in modem societies and has
it
52 Legal Anthropology
less sweeping political ambitions. Thus we return to the point
already elaborated in studying ‘the frame of reference of the state’
(above, no. 29): not all states are totalitarian, but they all contain
the seeds of totalitarianism, since it is part of the underlying logic
of the state to try to weaken, or even do away with, any authority
that rivals its own (the factors governing the development of the
French monarchy since the middle ages are an example of this).
This multiplicity of powers is the consequence of legal and socio­
logical pluralisms which are proper, in varying degrees, to all soci­
eties. Yet the degree of pluralism may vary, as examples of
de-pluralization reveal.
35 De-pluralization
For J. Vanderlinden, a society undergoes de-pluralization through
the operation of a number of different factors. In our view all
societies, in fact, remain plural, since perfect homogeneity can
never be achieved, but the degree of pluralism can effectively be
reduced. The phase of maximum reduction is usually only a tran­
sitory one (the failure of basic rural communal organization in
China during the Maoist period is a case in point). Social groups
may, to begin with, lose their identity through the levelling of
inequalities, a process accentuated if change is gradual. When the
egalitarian tendency is violent and revolutionary, pluralism soon
reappears (see the formation of nomenklaturas in socialist states).
The process of homogeneity can also stem from psychological
rather than material factors: the adoption of universal suffrage;
the adoption of an exact age of consent, which makes the benefi­
ciaries believe that they share a greater degree of equality with
other members of society belonging to separate groups. Finally,
the elimination of pluralism can be imposed by central authority:
where the supreme jurisdiction emphasizes unitary law or, in
more general terms, the political will of the state to jointly affirm
the unity of state and society. The examples of this last scenario
abound: absolute monarchies, the Napoleonic Empire, the
Republican [French] state; emergent African states where cus­
toms, until recently, were considered as no longer relevant, by a
state-based legal system largely modelled on the law of the outgo­
ing colonial power. In general, this kind of de-pluralization is
ineffective, since it does not take into account the sociological
structure of society.
The Development o f Legal Anthropology 53
By examining several definitions of legal pluralism, we have
attempted to draw attention to its implications on the legal policy
of the state (whose existence is not to be denied). We have also
drawn attention to the increasing complexity of these definitions.
The same theme emerges from the most recent theories of legal
pluralism in legal anthropology: the ‘pyramidal’ theory of L.
Pospisil, the theory 'of semi-autonomous social fields of S. Falk
Moore, and the latest work of J. Griffiths.
36 The ‘levels o f law’ of Leopold Pospisil
Leopold Pospisil (1956, 1971) argues that every society consists of
a body of hierarchically arranged subgroups, each subgroup pos­
sessing its own legal system. His contribution is to introduce the
notion of a ‘level of law’. Legal systems form a hierarchy consisting
of subgroups; they may be stratified - divided into levels of law: a
level of law is defined as the sum total of legal systems belonging
to subgroups of the same kind, and possessing a similar degree of
integration (for example, each of the following groups forms a dif­
ferent level of law: nuclear families, lineages, village communities,
nations, empires, etc.). There is no qualitative difference between
the law of the state and the legal system of a coterie of criminals
such as the Cosa Nostra, only a difference in hierarchy. Of course,
each individual generally belongs to a number of different sub­
groups, and is thus submitted to the often contradictory demands
of different legal systems: the individual thus chooses a level with
which, depending on the occasion, he or she prefers to identify (a
mafioso could buy stocks and shares in accordance with the law of
the state, and eliminate a rival following the code of the honorable
society). Pospisil’s theory can thus be applied as much to modem
as to traditional societies. However, since Pospisil is an anthropol­
ogist, he tends to choose his examples from these latter societies,
citing, in particular, the Kapauka of New Guinea, and the
Nunamiut Inuit. The Nunamiut contain four legal levels: bands,
parts of bands, large families, and smaller nuclear or polygynous
families. Above the level of the band there is no authority capable
of handing down decisions. For Pospisil, interband relationships
are outside the legal domain, and are based on expediency: they
are decided by war, vengeance, or agreement to co-operate, sealed
by an exchange of goods or wives. Law thus begins at band level,
and the different ways of sanctioning behaviour are directly linked
u .
54 Legal Anthropology
with the hierarchy of levels of law. Thus, disputes concerning
marriage and the education of children are settled at the level of
smaller families, disputes concerning economic offences (theft,
material damage) are handled at all except the last-mentioned
level; cases concerning hunting, murder and recidivism are han­
dled by the leaders (umialiks) of bands; corporal punishment
(apart from the elimination of a recidivist) takes place only within
the smaller family unit; permanent ostracism (which can amount
to a death sentence) is a matter for the band.
37 S. Falk Moore and ‘semi-autonomous social fields’
S. Falk Moore’s theory (1973) was immediately well received by
legal anthropologists. It is also applicable to modem as well as
traditional societies: he cites research carried out amongst groups
as diverse as the Chagga of Tanzania and the world of women’s
fashion in New York.
Falk Moore replaces the usual concept of ‘subgroup’ (the sys­
tems and levels of law of Pospisil, the associations of Ehrlich)
with the ‘semi-autonomous social field’ which may, or may not,
be equated with a subgroup:
The semi-autonomous social field is defined, and its limits
identified, not by its type of organization (it may perhaps be an
organization, perhaps not) but by a character of a processual
type residing in the fact that it gives birth to norms and by con­
straint or incentive ensures their application. The space within
which a certain number of corporate groups are in relation one
to another constitutes a semi-autonomous social field. A large
number of fields of this type may be connected one to another
in such a way that they form complex chains, in the same way
as the networks of social relatins which link individuals may be
compared to chains which have no end. The interdependent
connection of a large number of semi-autonomous social fields
constitutes one of the fundamental characteristics of complex
societies.
But why are these social fields described as ‘semi-autonomous’?
Falk Moore recognizes that, in theory, they could be totally
autonomous, or not autonomous at all. But in practice, especially
in modern societies, neither is the case. In state societies, whilst
the law of the state does not necessarily exclude other systems of
The Development o f Legal Anthropology 55
law, it does nevertheless exercise some degree of constraint over
them (the mafioso who liquidates a rival belonging to another
‘family’ must take certain precautions to avoid being arrested by
the police): a social field is subject to external constraints.
Furthermore, the pressure exerted by other social fields is rarely
such that it amounts to total constraint: even in the army and in
prison, organizations possessing a high degree of integration,
there are areas where the rules and conventional behaviour of the
military and penal authorities do not apply. The term ‘semi-
autonomous’ appears more appropriate in the majority of cases,
and places Falk Moore’s theory in a pluralist context. This con­
cept of ‘semi-autonomy’, which accounts for the interaction
between social fields, can be applied to the classic distinction
between law and custom. The state - or its jurisdictions - can
transform the rules of a particular social field into state law (thus
under the monarchy, canon law had to be amended by French
law to be applied in France), and, vice versa, a social field can
transform a state-based law into a custom, when it adopts it
instead of offering resistance to it (the distinction is akin to that
described by Pospisil concerning the interchangeability of author­
itarian and customary law (below, no. 75). Yet, according to Falk
Moore, the term ‘semi-autonomous’ does not apply to traditional
and modern societies in the same degree. In the former societies,
where political authority is less differentiated, the autonomy of
the different social fields is greater than in the latter, without ever
being complete, since it is in the nature of all societies to be divid­
ed into a number of social fields linked by interaction.
J. Griffiths rightly underlines the importance of Falk Moore’s
theory and highlights two of its characteristics. On the one hand,
in contrast with other pluralist theories (notably that of Pospisil),
it stresses the horizontal dimension of pluralism, seen as the result
of interaction between social fields which are not classified hierar­
chically. On the other hand, it can be contrasted with the classic
‘instrumental’ approach of legal theorists in which law consists of
an order handed down by a legislator to individuals, as if the two
entities were somehow separated by a total void: on the contrary,
Falk Moore ascribes a determining role to social organizations.
The individual not only obeys the law of the state, but also obeys
rules - of a legal nature or otherwise - emanating from a variety
of sources, and brought together in semi-autonomous social
56 Legal Anthropology
fields. Falk Moore’s theory, however, does not completely escape
Griffiths’s wide-ranging criticisms of the main theories of plural­
ism.
38 J. Griffiths’s hypercritical theory
In 1986, in an important article, J. Griffiths embarked on a thor­
oughgoing critique of pluralist theory, and revealed his own think­
ing. The thrust of his argument was to relativize even further the
role of the law of the state, in contrast with the prevalent attitude
of legal positivists.
Griffiths first observed that two kinds of pluralism exist, and
only the second is authentic: pluralism tolerated by the state, and
pluralism which escapes the control of the state. Pluralism is the
sworn enemy of the unitary ambitions of the state and the latter
has two weapons with which to do battle with it. Either the state
attempts a total elimination of pluralism (as when at the end of
the middle ages customs were transcribed and transformed into
royal law; or as in the progressive weakening of the competence of
non-state jurisdictions - seigneurial or ecclesiastic - to the benefit
of royal jurisdictions); or, quite frequently, the state recognizes
certain manifestations of pluralism: statutes enacted for ethnic
minorities, churches, colonies, etc. This pluralism is only a
façade, and serves the interests of a unitary and centralizing poli­
cy. On the one hand this is because the state makes up the rules:
it decides on the jurisdictional limits between itself and the bodies
to which a measure of autonomy has been granted, and it imposes
its own criteria. On the other hand this sharing of jurisdictions is,
in general, managed by the state in such a way that non-state law
plays only a subordinate or residual role.
In our opinion the descriptions provided by the various studies
we have cited are preferable to this caricature of legal pluralism
inherent in state societies, but these studies do need to be submit­
ted to critical examination.
Griffiths (concurring on this point with J. G. Bellay) expresses
his disagreement with Vanderlinden and Gilissen, whom he
accuses of mistaking legal diversity for legal pluralism: the exis­
tence of different rules, varying from social group to social group
or from territory to territory, yet applied to identical situations,
does not constitute legal pluralism, if these distinctions are toler­
ated or initiated by a single legal body, the state. Thus, for
The Development o f Legal Anthropology 57
Griffiths, medieval law is not pluralist because the geographical
diversity of custom and the internal law of corporations are areas
of law to which the state was prepared to accommodate itself. We
find that this is taking things too far, because the state did, after
all, set itself the task of limiting the influence of, and even sup­
pressing, these institutions; also we would argue that feudal law
or canon law are in reality legal bodies separate from the state, at
least they were during the feudal period, until they were gradually
absorbed. Yet Griffiths’s distinction can be retained for other
cases: for example, the multiplicity of social security regimes does
not, effectively, constitute pluralism.
Griffiths finds Pospisil’s theory wanting in its hierarchic
description of levels of law, which implies that there is indeed one
legal system, belonging to the global society, the result of the for­
mation of a whole stratigraphy of levels of law. Such unity in the
legal system would tend to strengthen the position of the state,
itself unitary in nature. Griffiths also criticizes Ehrlich, stating
that, in spite of appearances, the state and state law remain the
culminating point of the legal process for subgroups. Falk Moore
receives more praise, yet Griffiths points out that he is too readily
inclined to identify law with norms emanating from the state, and
concentrates too much on the effect of state law within each semi-
autonomous social field, to the exclusion of the study of interac­
tion between the non-state fields.
Thus, according to Griffiths, no theory escapes, to some
degree, the taint of statism. It should occasion little surprise to
discover that his own definitions establish a clear distinction
between law and the state. Law does not, in the nature of things,
enjoy any particular relationship with the state, and does not need
the state to function: ‘law is the self-regulation of a semi-
autonomous field’, meaning that state law is only one of the forms
that law may take. This regulation varies to the extent to which it
has acquired a differentiated jural character: it ‘may be termed
legal to a greater or lesser degree, depending on the extent it is
differentiated from the rest of the activities associated with this
field, and as a function of the extent to which it is vested in spe­
cialized agents’.
All theories of legal pluralism tend to relativize the role of the
state in society, suggesting that systems of law exist outside the
state, brought into being by the various social groups that form
I
58 Legal Anthropology
constituent elements of all societies. Nevertheless, at present
(1987), it is Griffiths’s theory which has taken the breach with the
state and state law to its logical conclusion, to such an extent that,
whilst agreeing with him that it is high time we were disabused of
the state’s monopoly over law, one may wonder whether, in forcing
the state and law further and further apart, we will not be driven up
a theoretical blind alley. In fact, whether one applauds or
bemoans the fact, states exist and are unlikely to disappear: the
nature and importance of the state will not emerge from an over-
critical attitude. It may well be the case that in the future, new
theories, more amenable to the state, will appear as a reaction
against those which we have just surveyed. We should also note
that the idea of legal pluralism and, one of its main corollaries,
the opposition of official and non-official law have come under
criticism. This we will now examine.
39 The critiques o f legal pluralism
We must first observe that traditional descriptions of law, such as
those contained within the covers of legal textbooks, generally
stress law’s official applications, to the exclusion of pluralist phe­
nomena: the fact is too well established for us to give it further
consideration. Yet there is a second category of critiques, rather
more interesting in that they come from non-dogmatic jurists such
as J. Carbonnier, M. Miaille and L.-R. Ménager. Carbonnier
attacks what he describes as ‘the great illusion of pluralism. It pur­
ports to have filmed the combat between two legal systems; but all
we see is a legal system at grips with the shadow of an opponent.’8
For Carbonnier, pluralist theories commit the error of overempha­
sizing certain phenomena which exist on the fringes of law. Either
these phenomena are actually part of the prevailing legal system
and the distinction is illusory (thus workshop regulations, which
appear to emanate from a distinct body of law of the workplace, in
fact bear the stamp of article 1134 of the Civil Code and form part
of the law of the state). Or else there are deviations from the norm
(certain immigrant families in France, of Muslim origin, practise
the repudiation of their wives following rules which do not figure
in the Civil Code), which do not form part of the state law. But
these forms are sublegal (even if those who practise them believe
they form genuine law), because these rules do not possess a jural
character, namely organized constraint or judgement. In fact,
The Development o f Legal Anthropology 59
according to Carbonnier, legal pluralism exists ‘when, instead of
contrasting rules, we contrast different applications of one particular
rule’: thus genuine pluralism would be judicial in circumstances
where, given that the unitary principle of law does not always hold,
the same case is sanctioned in different ways, depending on the
jurisdiction. We find it difficult to agree with Carbonnier’s conclu­
sion. To begin with, legal pluralism as strictly defined by Griffiths,
effectively excludes from consideration the legal phenomena which
the state incorporates within its own system. Also, as regards
autonomous normative behaviour, its description as legal or ‘sub-
legal’ depends on the way we choose to define law. Carbonnier’s
description, revolving around sanction or the threat of sanction, is
out of step with the current trend in legal anthropology, which, on
the contrary, distances itself from this idea, or takes it into consid­
eration only along with other defining characteristics of law. In
fact, we may ask ourselves whether the term ‘sublegal’ which he
uses is not ethnocentric. Carbonnier’s ‘judicial’ definition of
pluralism tends to confirm the impression that, for him, legal
pluralism can exist only within the state law. Quite apart from the
fact that this thinking is not anthropological, since it is not readily
applicable to traditional societies, it reveals a philosophical stance
which runs counter to all theories of pluralism, which, on the con­
trary, tend to qualify the role of the state.
A more indirect criticism concerns the belief, held by the advo­
cates of pluralism, which underlies the distinction between official
and non-official law, itself merging with the distinction between
the law imposed by the state (laws) and the spontaneous and pop­
ular law of custom. For L.-R. Ménager, custom is no more the
sign of a non-official expression of popular will than law is. It is,
rather, a sign of the will of the elite, whose members have never
allowed practices which run counter their interests to take the
institutional form of customary law (or legislation), pleading the
defence of the social order. M. Miaille argues in the same vein
when he states that despite all the classic definitions of custom, the
latter is ‘never genuinely popular but “guided” by those learned in
law’. The force of these criticisms varies according to the society
under consideration. They may be justified in societies with a high
degree of differentiation and where, effectively, those holding
power, and the jurists in their service, make it their duty to control
the legal process and influence its decisions (in our societies, the
ii
60 Legal Anthropology
programmes of political parties which are based, at least in part,
on the interests of the social groups who support them, are always
followed by changes in official law, notably in the field of taxa­
tion). Yet these critiques lose much of their relevance in tradition­
al, less differentiated societies, in which custom can genuinely
reflect the wishes and interests of the community. Meanwhile, it is
true that when these societies, usually through colonization, wit­
ness the creation of the state in their midst, subtle links are woven
between official and non-official law, which do not always fit the
state-based law/popular custom divide. The recent theory of M.
Chiba has the merit of drawing attention to these problems.
40 Official and non-official law: M . Chiba's theory
M. Chiba, a Japanese jurist specializing in the study of non-
Western law, recendy suggested (1986-7) a number of concepts
refining classic pluralist analysis. The latter usually consists, in
any given country or society, of contrasting official law (state
law) with non-official law (people’s law). Yet this is often a very
cursory distinction: first, official law cannot necessarily be
reduced to state law, or, in the case of colonized countries, to law
handed down by the colonial authorities; second, the interaction
between official law and non-official law does not always take the
form of conflict, but may also be complementary.
Chiba’s theory consists in identifying several levels of law (the
meaning used here is very different from the meaning of the term
encountered in Pospisil’s theory). We will first consider official
law, the system of law sanctioned by the legitimate authority of a
country. This includes state law, but can also cover other forms of
law: religious law, the laws of ethnic minorities, non-governmental
organizations, etc.; these are sanctioned in the first instance by the
competent authorities of the groups concerned, but they are also
co-ordinated by the state, which can enforce its own sanction.
Secondly there is non-official law, or a system of law which is not
officially sanctioned by a legal authority, in practice applied by a
social group within which there exists a consensus in regard to this
law. This consensus may be expressed in formal rulings, or be
demonstrated by certain kinds of behaviour. But non-official prac­
tices based on a consensus do not all constitute non-official law: to
qualify they need to be able to modify official law. Finally, legal
postulates are value systems or principles which serve to legitimate
The Development o f Legal Anthropology 61
or orientate official or non-official law: natural law, equity, divine
prescription; principles of exogamy, bi-lineality, or seniority in
family law; declarations of the rights of man, etc. These various
postulates must be fairly consistent with each other to avoid dis­
turbing the normal operation of society.
These three levels of law do not necessarily form a hierarchy:
they vary from society to society and, it would seem, from east to
west. The West, as we have seen, is identified with a unitary sys­
tem in which law is to a considerable degree responsible for con­
trolling social interaction; also, official law is pre-eminent if not
exclusive. The East, however, has never accorded such status to
law, at least not in the centralized form cherished by the West - if
it has not ignored it altogether. In the East autonomous legal pos­
tulates often have an impact on official law and, also, it is a far
more frequent occurrence for non-official law to modify official
law, and resist its domination.
The second distinction consists of the provenance of law. Law
may be received law, emanating from another country; in the colo­
nial period received law was mainly official law. Or it may be
indigenous law, law residing in the original culture of the popula­
tion. Here again, the relationship between these two kinds of law
varies from country to country, but interaction does not necessari­
ly favour the received law; it has been known for official law to
undergo modification following the inclusion of indigenous forms
of law within its own ambit. Thus Danish law acquired, through
legislation, aspects of Greenland law pertaining to family matters,
involving a wider conception of the family; in Canada, the legal
system has also recognized the validity of adoptions and marriages
solemnized according to traditional Inuit law; in India, official law
is a mixture of indigenous Hindu law and received English law; in
modem Japan, official law includes a considerable amount of
indigenous law, whose legal postulates are very influential; in
France at the end of the middle ages, Roman law, initially tolerat­
ed by central authority as a custom peculiar to the Midi, eventual­
ly penetrated state law and influenced it considerably, becoming
widespread in all regions.
As these few examples demonstrate, the classification of the two
series of distinctions leads us to a very important statement: offi­
cial law and received law do not necessarily coincide, neither do
non-official law and indigenous law. This is because each series of
62 Legal Anthropology
distinctions is based on different criteria: in the case of the first
form (official/non-official), the criterion is explicit and involves
sanction residing within or beyond the state; in the second
(received/indigenous), it is substantive and relates to the origin of
law (whether foreign or not).
Finally, we should incorporate the distinction between received
and indigenous law into this perspective: in practical terms,
received law tends to move gradually towards indigenous law
(Islamic law in Egypt and Iran; Chinese law in Japan; Hindu law
in Thailand; the position of European law in modem Africa cor­
responds to an intermediate phase in the process, in so far as this
law is distinct from traditional practices, but benefits from the
support of African leaders who see in it one of the ingredients of
national unity and economic development).
As the recent theories which we have examined suggest
(notably those of Griffiths and Chiba), the theme of pluralism
dominates the current thinking of legal anthropologists, especially
in the English-speaking world. Pluralism was even the inspiration
of the first international organization to represent legal anthropol­
ogists: the Commission on Folk-Law and Legal Pluralism.
41 The Commission on Folk-Law and Legal Pluralism
In the course of the tenth International Congress of Comparative
Law (Budapest, 1978), the Dutch participants, led by G. Van den
Steenhoven, proposed a research project on the theme of folk-law
in the contemporary world, in developing societies and in Western
societies (folk-law is not exactly ‘popular law’, rather it is what tra­
ditional French law classed as ‘le droit des gens'; that is, the rights
which human groups claim as theirs quite independently of recog­
nition by the state). On the foundations laid by this project, the
International Union of Anthropological and Ethnological Sciences
(IUAES) decided in 1978 in New Delhi to create the Commission
on Folk-Law and Legal Pluralism. The commission set itself the
goal of studying, both practically and theoretically, the relation­
ships between folk-law and state law, stressing the vitality and
innovative capacity of the former. The principal French
researchers and teachers in legal anthropology were participants.
Since the discipline is a young one and its members are spread out
over the whole globe, the commission is an ideal meeting place
where links can be forged, uniting legal anthropologists in their
different research interests.
The Development o f Legal Anthropology 63
42 Conclusions
What conclusions can we draw from these various theoretical
positions? We will discuss four of them.
First, the concerns of legal anthropology are closely associated
with those of social and cultural anthropology. Legal anthropolo­
gy, allowing a certain amount of time for it to gain sufficient
momentum, adopted the main theories such as evolutionism and
functionalism. Structuralism met with less success, perhaps
because Lévi-Strauss never specifically studied legal phenomena,
apart from those associated with kinship systems. Legal anthro­
pology has also been influenced by pluralism, derived more from
sociology. It might appear strange that the discipline seems to
have been so litde influenced by mainstream legal thinking, but it
could hardly have been otherwise. To begin with, the methodolo­
gy of traditional legal science was not appropriate to an intercul-
tural context, because of its ethnocentricism; also legal
anthropology has, until recently, not met with a great deal of
interest amongst the principal authorities in mainstream law
(Carbonnier is the exception which proves the rule), and has con­
sequently not been able to benefit from their contribution. The
almost total absence of the discipline in the past and present
teaching of law has only strengthened this attitude.
Second, furthermore, the new directions which we have
described might disconcert traditional jurists, less accustomed as
they are to change. Yet change is not uncommon in the develop­
ment of disciplines, especially the so-called ‘critical’ disciplines: it
is easier to describe the world than to interpret it. Our framework
of questions changes with time, influenced by changes in our own
lives, providing different answers: the observer exerts an influence
on the object observed. The student must never forget that a the­
ory does not fully describe reality: it is no more than a mediation
between reality and our perception of it.
Third, as regards the great question of the unity or plurality of
human societies, legal anthropology currently provides no clear
answers. Evolutionary and unilinear totalizing historical construc­
tions have met with failure. Currently, the emphasis on pluralism
seems to have moved the discipline away from a universalist atti­
tude. Yet, the return of anthropologists to a consideration of
Western societies may hold surprises in store, because the first
64 Legal Anthropology
results show that traditional and modem societies are not as far
apart as we originally thought.
Fourth and finally, both the student schooled only in official
law, and the traditional jurist will perhaps find that the develop­
ments we have described are of too speculative a nature, and are,
to speak plainly, lacking in legal rigour. We may well reply that
this ‘legal rigour’ is but a false rigour, an illusion. Traditional
approaches to law are as to the science of law what traditional
geometry is to the geometry of space, or what classical mathematics
is to quantum mechanics: they would have us believe that reality
corresponds to one particular mode of thought, whereas a web of
different modes of thought exists. In fact legal ‘rigour’, which was
once the driving force behind civil law, often resulted in the viola­
tion of Karl Popper’s principle of refutability, which is after all the
essential criterion of scientific knowledge. For as J. Chevalier has
stated, ‘the reference to formal logic is no more than a myth
which conveniently equips the legal order with unchallengeable
assumptions, whilst avoiding any discussion of the validity of its
prescriptions’.9 Pierre Bourdieu has successfully highlighted the
mechanisms through which law achieves its regulatory function.
Legal parlance uses linguistic devices whose effects are twofold.
First there is the neutralizing effect achieved through the use of
the passive tense and an impersonal turn of phrase, giving legal
rules the appearance of impartiality (the Civil Code is a perfect
example of this). Second there is a universalist effect which mag­
nifies the importance of these rules: the use of the indicative
mood in pronouncing norms, the use of the indefinite article (‘nul
n’est tenu de demeurer dans l’indivision1), the reference to mythic
models presupposing a consensus (‘le bon père de famille’), etc.
Finally, law draws much of its strength from its supposedly per­
fect form, underpinning the values it articulates.10 In our own
view genuine rigour consists in understanding that reality is
concealed from view, inciting us to evolve different ways of
apprehending it. This is the course that legal anthropology fol­
lows. From its evolutionist origins, equipped with a normative
historical view of law and describing its most obvious forms, legal
anthropology, aided by functionalism and processual analysis,
examined behaviour rather than codified law, and now, with plu­
ralism, is discovering that state law is surrounded by a wealth of
legal systems.
The Development o f Legal Anthropology 65
Far from confusing rigour with science, exactitude with truth,
legal anthropology, as M. Alliot has stated, ‘is in fact a more
thoroughgoing approach to law’.
NOTES
1 It was preceded by a number of trail-blazing works, all bearing
the hallmark of evolutionism: Einleitung in eine Naturwissenshaft
des Redits (1872); Die Geschlechtsgenossenschaft der Urzeit und die
Entstehung der Ehe. Ein Beitrag zu einer allgemeinen vergleichen-
den Stoats - und Rechtswissenschaft (1872); Der Ursprung des
Rechts (1876); Die Anfange des Stoats - und Rechtslebens (1878);
Bausteine fur eine attgemeine Rechtswissenschaft auf vergleichend-
ethnologischer Basis (1880-1); Die Grundlagendes Rechts und die
Grundziige seiner Entwicklungsgeschichte (1884); Einleitung in das
Studium der ethnologischen Jurisprudenz (1886).
2 M. Schmidt, ‘Die Bedeutungder vergleichenden Rechtswissen­
schaft fur die Ethnologie’, ZVR, 38 (1918): 348-75.
3 Trimbom, ‘Grundsaetzliches zur Methode der historischen
Rechtsforshung’, ZVR, 42 (1927): 1-7; followed by ‘Die
Methode der ethnologischen Rechtsforschung’, ZVR, 43
(1928): 416-64.
4 Principally: Die menschliche Gesellschaft in ihren ethno-soziologis-
chen Grundlagen (1931-4); Werden, Wandel und Gestaltung des
Rechts. Die menschliche Gesselschaft (1934).
5 We may regard as terminus a quo L. A. White’s article, ‘Energy
and the evolution of culture’, AA, 45 (1943): 335-56.
6 See J.-W. Lapierre, Vivre sans Etat? (Paris, Le Seuil, 1977),
pp. 172-3.
7 For example: Barton, Ifugao Law (1919); Lips, Naskapi Law
(1947); Holleman, Shona Customary Law (1952); Bemdt, Law
of the Kamamo, Usurufa, Jate and Fore Papuans of New Guinea
(1962); Howell, A Manual of Nuer Law (1954); Smith and
Roberts, Zuni Law (1954); to which we must add the work of
L. Pospisil on the Kapauku of New Guinea, from 1956 to
1971.
8 J. Carbonnier, Sociologie Juridique (Paris, A. Collin, 1972),
p. 150.
9 J. Chevalier, ‘L’Ordre juridique’, in Le Droit en procès, ed. J.
Chevalier and D. Loschak (Paris, PUF, 1984), p. 13.
66 Legal Anthropology
10 See P. Bourdieu, ‘La Force du Droit. Eléments pour une
sociologie du champ juridique’, Actes de la recherche en sciences
sociales, 64 (September 1986): 3—19; ‘Habitus, code, codifica­
tion’, ibid.: 40-4. On the beliefs and rationality of legislators,
see: F. Ost and M. van de Kerchove, Jalons pour une théorie
critique du droit (Brussels, Publications des facultés universi­
taires, Saint-Louis, 1987), pp. 100-6.
FURTHER READING
43 M ain works on the history o f legal anthropological theory
Apart from the work on this subject by Pospisil (Anthropology of
Law, pp. 127-91, op. cit., above, no. 9), there are only a handful
of sources. To date, the most valuable is A Negri, II Giurista dett-
’area romanistica di fronte all’etnologia giurdica (Milan, Giuffrè,
1983, 190 pp.); to which R. Motta has added ‘Etnologia giuridica
e diritto comparato nello studio di un comparista’, Sociologica del
diritto, 12, 3 (1985): 127-32. He is also the author of an indispens­
able work on the same subject: Teorie del diritto primitivo.
Un’introduzione aU’antropologia giuridica (Milan, Ed. Unicopli,
Materiali Universitari Scienze Politiche 23, 1986, 211 pp.). Those
with no Italian may wish to refer to another work by A. Negri, in
French, but much briefer and centred on the Italian school: A.
Negri, ‘La Méthode du juriste ethnologue, de l’époque de l’eth­
nologie juridique de Post à l’époque de la floraison de l’anthro­
pologie culturelle’, Rapports nationaux italiens au Xe Congrès
International de Droit comparé, Budapest, 1978 (Milan, Giuffrè,
1978), pp. 37-62.
44 The birth o f legal anthropology
Besides the general works treating the development of anthropo­
logical theory, there are also the following two texts: J. Costa,
‘Trois fondateurs de l’ethnologie juridique: Bachofen, Maine,
Engels’, Nomos, 1 (1974): 15-42; Pospisil, Anthropology of Law,
op. cit., above, no. 9, pp. 127-92, where a good analysis may be
found of the theories of Montesquieu, Marx and Engels. Also on
the theme of the link between law, the state and social stratifica­
tion, there is L. R. Ménager, ‘Prolégomènes - Introduction à une
The Development o f Legal Anthropology 67
phénoménologie historique de la contrainte sociale’, Procès, 13
(1983): 9-39. Also concerning L. R. Ménager, ‘qui cherche l’on­
togénie du droit ne saurait donc trouver que le pouvoir’, see N.
Rouland, summary in Droits, 4 (1986): 171.
Besides these main authorities, the great jurist F. K. von
Savigny (1779-1861) cannot be overlooked. In common with
Montesquieu he rejected the natural law of the classical period
and was the author of the concept of Volksgeist: law is closely
linked to the society which produced it, and may be described as
springing from the national genius of each people, as it evolves
historically. This led Von Savigny to reject the Napoleonic Code
as too voluntarist. The themes he covers are, however, anthropo­
logically limited, since he confines himself to societies which have
become nations.
With reference to natural law and the variations within its dif­
ferent schools, there is M. Miaille, Une introduction critique au droit
(Paris, Maspéro, 1976), pp. 311-15; and M. Villey, ‘Le Droit
naturel’, Revue de Synthèse, 118-19 (1985): 175-86.
45 Evolutionism
On the application of Darwin’s theories to human societies, see L.
Clark’s recent article: ‘Le darwinisme social en France’, La
Rscherche, 196 (1988): 192-200.
Those interested in neo-evolutionism will find a good summary
by an author of this school in: R. L. Carneiro, ‘The four faces of
evolution’, in Handbook of Social and Cultural Anthropology, ed. J.
J. Honigmann (Chicago, Rand McNally, 1973), pp. 89-110. We
should also note that since evolutionism has been a bulwark of
colonialism, it is hardly surprising that anthropologists from ex­
colonies take an anti-evolutionist stance. Thus the Senegalese
writer Cheik Anta Diop (also well known for his theories estab­
lishing a link between African and Egyptian peoples) has, in many
of his works, criticized unilinear evolutionism. His premise is that
Europe and Africa have different kinship structures and he rejects
the idea that this difference can be incorporated into a chronolog­
ical framework, as conceived by Morgan and Engels. He states
that from its beginnings, Africa has benefited from matriarchy
(emancipation of women, justice, peace) to be contrasted with the
calamitous patriarchy of Europe (xenophobia, individualism, vio­
lence and conquest). Of course, these theories are now complete-
68 Legal Anthropology
ly outdated, but they can be read on a different level of meaning:
through evolutionism, the author is in fact criticizing Victorian
ideology and colonialism.
Finally, we must note that we cited only a handful of the main
evolutionist writers. Attention should also be drawn to Spencer’s
theories and the less well-known, but more interesting, theories of
Tylor.
For H. Spencer (1820-1903), the original conception of law is
as the will of the ancestors or gods; then with development and
growing complexity, law becomes more precise and is secularized,
but takes a penal form (Durkheim was to take up this idea; see
above, no. 19); in modem societies where natural selection has
progressively made a harmonious social existence possible, without
dirigiste influence, law is gradually replaced, in its social dimension,
by morality. Spencer’s vision was based on an over-optimistic view
of evolution and the effects of natural selection, but it is interesting
that it combines the evolution of social organization with the near­
disappearance of law in a final phase: Marxism, in its description
of a future communist society, was to echo this prophecy.
E. Burnett Tylor’s evolutionism (1832-1917) is not so clear-
cut and foreshadows current American neo-evolutionist thought.
Tylor drew attention to ‘retrovolution’: certain groups can pass
from a superior to an inferior stage, hence traditional societies
could be the remains of more brilliant societies. Also, Tylor was
not unaware of diffusionism (a theory stating that societies evolve
mainly through contact and the mingling of cultures), since he
recognizes the importance of culture contact and the tendency for
imitation. Besides his work on religion, he also made some impor­
tant ethnological contributions in the field of kinship.
46 The disciples of Durkheim in French legal anthropology
As we have seen, French legal anthropology at this time, unlike
German or Italian anthropology, does not distinguish itself by its
important theoretical syntheses. Most French writers are marked
by the influence of Durkheim.
Marcel Mauss (1872-1950) is the most important of them,
although only part of his work concerns the legal domain. He
concentrates in particular on concrete phenomena and stresses
modes of exchange and the social interaction between individuals.
The Development o f Legal Anthropology 69
In La Religion et les origines du droit pénal (1896-7), he studied
vengeance as a relationship of reciprocity between groups, an idea
confirmed by recent studies on this theme by R. Verdier (see
below, no. 159). In his celebrated Seasonal Variations of the
Eskimo: A Study in Morphology, trans. J. Fox (1979; first pub­
lished 1906) his emphasis on the role of material factors over legal
phenomena can be clearly seen: the pronounced changes in the
seasons and the corresponding modifications in Inuit hunting
practice are accompanied by movements of fusion (in winter the
different family groups gather together as a community) and fis­
sion (in summer, on the contrary, the groups disperse). These
movements are reflected, in the legal domain, by summer law and
winter law (in our own societies, even if to a lesser degree, is not
our own family and social life also influenced by the seasons,
since the long vacation, which coincides with the summer, is
often the occasion for the regrouping of families, or forms the
basis of very particular experiences of communal life, such as the
villages of the Club Méditerranée, where familiarity is insisted on,
where money is not used, and where life is dominated by three
mythical symbols representing the return to nature: sea, sex and
sun?). Finally, in his The Gift: Forms and Function of Exchange in
Archaic Societies, trans. I. Connison (London, Routledge & Kegan
Paul, 1970; first published 1923^1), Mauss again insists on the
link between economic factors and legal obligations.
Other authors, faithful followers of Durkheim, are full-time
jurists. In general they are published in the Année Sociologique. P.
Huvelin may be cited amongst them (1873-1924), a specialist in
Roman law and commercial law; E. Levy (1871—1943); L. Gemet
(1882-1964), who applied the notion of pre-law to ancient
Greece in his The Anthropology of Ancient Greece (Baltimore, MD
and London, Johns Hopkins University Press, 1981), published
in French as Anthropologie de la Grèce Antique (Paris, Flammarion,
1982, 282 pp.); P. Fauconnet (1874-1938) concentrated on the
theme of responsibility; G. Davy (1885-1976) drew particular
attention to contractual law; G. Richard (1860-1945) may be
compared with Motta (op. cit., above, no. 43, pp. 57-70). In the
following years, other authors (such as Lucien and Henri Lévy-
Bruhl, M. Granet, G. Gurvitch) can also be identified with the
Durkheim tradition, but distance themselves from nineteenth-
century concepts. Methodologically speaking, the disciples of
70 Legal Anthropology
Durkheim are the last exponents of armchair anthropology.
Henceforth the lessons of Boas and Malinowski will be applied;
ethnology will no longer be studied only in libraries, knowledge of
work in the field and of local languages will become essential.
47 Attempts at collecting the customs of Africa
As we have pointed out, the first half of the twentieth century wit­
nessed the development of applied anthropology, prompted by
the theoretical excesses of the nineteenth century. Some of this
work is of particular interest to the jurist: the transcription of cus­
toms (we will return later to the importance of the transition from
oral law to written law as revealed in legal acculturation; see
below, nos. 173-6). From the end of the nineteenth century
onwards, there was a felt need to acquire a greater understanding
of the legal elements of traditional societies. The method chosen
was research in the field, where questionnaires were used with
respondents. The use of this method by a number of European
countries in their colonies led to a great deal of subsequent criti­
cism, because their terms of reference reflected the legal categories
of Western rather than indigenous societies: thus the German
Fragebogen embodied the concepts of Greek and Roman law. The
French were to use questionnaires from 1897 in Senegal. The
idea of a general transcription of customs soon became estab­
lished. (For further details see Negri, op. cit., above, no. 43, pp.
63-77).
48 Malinowski’s theories
Malinowski’s ideas about law developed contemporaneously with
his work in the field. Before this, his ideas on law offered no par­
ticular insights; law was perceived as a norm sanctioned by the
community or its central organs. After his work with the Mailu in
1915, he made the distinction between penal and civil law. But it
was as a result of his long stay with the Trobrianders that he
refined his thinking on law and displayed his originality of
thought. In Crime and Custom in Savage Society (1926), he wrote
that law could be clearly distinguished from morality and religion,
and this included traditional societies. This was in advance of its
time and enriched the distinction between civil and penal law
with the notion of reciprocity. He described penal law by the
norms which are likely to be infringed, whereas civil law is the
The Development o f Legal Anthropology 71
expression of reciprocal obligations bonding individuals, and is
always respected. A few years later in his introduction to
Hogbin’s Law and Order in Polynesia (1934), he was to reiterate
these concepts. Finally, in his last writings, he was to study the
various forms that laws could take, including their non-judicial
manifestations.
Malinowski’s thinking on law no longer has currency. Certain
mistakes, such as stating that civil law cannot, in primitive soci­
eties, be violated, are too self-evident. However, in defining penal
law a contrario, he stood against a prejudice which still exists
today, namely that in traditional societies, law is subject to a consen­
sus, and is accorded much more respect than in modem societies;
ethnographic observation reveals that, on the contrary, an individ­
ual who feels that there are fewer advantages than disadvantages
in respecting law, will frequently violate it. (For further details, cf.
I. Schapera, ‘Malinowski’s theories of law’, in Man and Culture,
ed. R. Firth (London, Routledge & Kegan Paul, 1968), pp.
139-55.)
49 The study of conflict
The conjunction of processual analysis and case-method has pro­
duced a number of monographs, as well as general collections of
them. Amongst the best are Law and Warfare, ed. P. J. Bohannan
(Austin, TX and London, University of Texas Press, 1967, 441
pp.) and The Disputing Process: Law in Ten Societies, ed. L. Nadder
and H. F. Todd Jr (New York, Columbia University Press, 1978,
372 pp.), which contain abundant bibliographies and are con­
cerned with traditional as well as modern societies (see, for
example, in Law and Warfare, the articles by G. Feifer, ‘Justice in
Moscow: ten days normal fare’ (pp. 93-115), and Spencer
MacCallum, ‘Dispute settlement in an American supermarket’
(pp. 291-9). Regarding the settling of disputes amongst the Inuit,
from traditional times to the present day, there is N. Rouland,
‘Les Modes juridiques de solution de conflits chez les Inuit’,
Etudes Inuit, 3, special no. (1979) (171 pp.); and N. Rouland,
‘L’Acculturation judiciaire chez les Inuit du Canada’, in La
Justice et les peuples autochtones, No. Spécial de Recherches amérindi­
ennes au Québec, 13, 3 and 4 (1983): 179-91 and 307-18.
Before considering these monographs, it may prove advisable to
read some of the works of synthesis concerning the relationship
__L l
72 Legal Anthropology
between normative and processual analysis: S. Roberts, Order and
Dispute: A n Introduction to Legal Anthropology (Harmondsworth,
Penguin, 1979), pp. 186-206; the introductory chapter of The
Disputing Process, ed. Nadder and Todd (op. cit., above), pp.
1-40; D. Hilse Dwyer, ‘Substance and process: reappraising the
premises of the anthropology of law’, Dialectical Anthropology, 4
(1979): 309-20; R. L. Abel, ‘A comparative theory of dispute
institutions in society’, LSR (1973): 217-347; L. Pospisil, ‘Law’,
Quademi Fiorentini, 14 (1985): 23-75, particularly clear; J. L.
Comaroff and S. Roberts, Rules and Processes. The Cultural Logic of
Dispute in African Context (Chicago and London, University of
Chicago Press, 1981), which purports to move beyond the
norm/processes divide (for a summary, see E. Le Roy, JLP, 21
(1983): 155-7); F. Snyder, ‘Three paradigms in the anthropology
of law’, Nieuwsbreif voor nederlandslige rechtssociologen, recht-
santropologen en rechtspsychologen, 1 (1983): 2—16; F. Snyder,
‘Anthropology: dispute processes and law’, British Journal of Law
and Society, 8, 2 (1981): 141-80; J. Griffiths, ‘The general theory
of litigation: a first step’, Zeitschrift fur Rechtssoziologie, 4, 1
(1983): 145-201. Finally the work of J.-G. Bellay, ‘Conflit social
et pluralisme juridique en sociologie du droit’ (sociology of law
doctoral thesis, Paris II, th. unpublished, Paris, 1977, 569 pp.),
contains important further study of these problems.
On the shortcomings of case-method, there is J. F. Holleman,
‘Trouble cases and troubleless cases in the study of customary
law and legal reform’, LSR, 7 (1973): 585-609. Finally for fur­
ther information on the thinking of the two important authorities,
Malinowski and Hoebel, see Schapera, ‘Malinowski’s theories of
law’, op. cit., above, no. 48, pp. 139-55; L. Pospisil, ‘E.
Adamson, Hoebel and the anthropology of law’, LSR, 7 (1973):
537-59; and also the very useful issue devoted to Hoebel by DC,
15-16 (1988): 139-86.
50 Legal decisions and the settlement o f disputes
Within our own legal systems disputes are deemed settled follow­
ing the decision of a judge. This decision is subsequently executed
by public authority. This encourages the view that settlement of
disputes and the pronouncements of the judiciary are one and the
same thing. Yet this is often not the case.
The Development o f Legal Anthropology 73
In Roman law, the execution of a decision is a matter for the
parties concerned; they cannot be constrained by external author­
ity: under the republic the successful party imposed the decision
on the unsuccessful party; even under the empire, the magistrate
alone could not execute a decision. In such circumstances the
influence wielded by the respective parties had a determining role
on the settling of the conflict. Parties occupying a lower social
position had everything to gain from being the clients of influen­
tial individuals who might come to their assistance; see N.
Rouland, Pouvoir politique et dependence personelle dans l’Antiquité
romaine. Genèse et rôle des rapports de clientèle (Brussels, Latomus,
1979, 658 pp.).
In a recent article, based on the study of disputes in Sumatra
(‘The social significance of Minnangkabau State Court decisions’,
JLP, 23 (1985): 1-68), K. von Benda-Beckmann argues that in
the literature of legal anthropology not enough attention is paid to
what occurs after a legal decision has been made; just like norms,
this may be abstract and ineffective. The omission stems from a
state-based - and thus ethnocentric - idea of law: since the courts
epitomize the application of law, the execution of a decision is
seen as a very minor consideration. Yet execution is hardly auto­
matic (in France a high proportion of maintenance awards are not
paid by the ex-husbands against whom the orders are made).
Ethnographic research reveals that once a decision has been made
there are several possible scenarios: there is a clear decision
accepted by all parties; the decision is executed under duress,
whether imposed by a legal body (use of public authority) or by
the most powerful of the parties; one of the parties contests the
decision and appeals to another jurisdiction; the decision is not
executed, because the successful party does not have the means to
constrain the other party. Finally, and this is without doubt the
most interesting eventuality, the decision is itself the subject of
negotiation between parties, who will decide what action to take.
In common with norms a legal decision is only a model, not an
absolute imperative.
51 Introduction to the bibliography of legal pluralism
The literature of legal pluralism is copious. The newsletter of the
Commission on Folk-Law and Legal Pluralism regularly publish­
es valuable updates. We will limit ourselves to noting the impor­
tant books and articles.
= L4
74 Legal Anthropology
First, some syntheses. In our view the most valuable theoretical
synthesis is Bellay’s doctoral thesis, Conflit social et pluralisme
juridique en sociologie du droit (op. cit., above, no. 49), which is
noteworthy in its description of developments in legal pluralism in
modem France. Then there is Le Pluralisme juridique, ed. J.
Gilissen (Brussels, Editions de l’Université de Bruxelles, 1972),
within which, in particular, J. Vanderlinden, ‘Le Pluralisme
juridique. Essai de synthèse’, pp. 19-56. Pluralism in Africa, ed. L.
Kuper and M. G. Smith (Berkeley, CA, University of California
Press, 1971), examines pluralism in African societies; there are
also articles by L. Kuper, ‘Plural societies: perspectives and prob­
lems’, pp. 8-26 and, also by L. Kuper, ‘Ethnic and racial plural­
ism: some aspects of polarization and de-pluralization’, pp.
459-87, which examines cases of a reduction in pluralism; and M.
G. Smith, ‘Pluralism in precolonial African societies’, pp. 136-41,
which outlines the social factors influencing the degree of plural­
ism. We may also cite Indigenous Law and the State, ed. B. W.
Morse and G. R. Woodman (Dordrecht, Foris Publications,
1988). A good history of theories of pluralism may be found in P.
L. Van den Berghe, ‘Pluralism’, in Handbook of Social and Cultural
Anthropology (op. cit., above, no. 8), pp. 959-77; Pospisil,
Anthropology of Law (op. cit., above, no. 9), pp. 99-106; L. Nader
and B. Yngvesson, ‘On studying the ethnography of law and its
consequences’, in Handbook of Social and Cultural Anthropology
(op. cit., above, no. 8), pp. 883-921; N. Rouland, entry under
‘Pluralism juridique’, in Dictionnaire de sociologie juridique, ed. A. J.
Arnaud (Paris, LGDJ, 1988), pp. 303-4. In a key article, J.
Griffiths systematically reviews all these theories, and criticizes
them for overstating the role of the state: ‘What is legal plural­
ism?’, JLP, 24 (1986): 1-55. Finally, since it was the Dutch school
which laid the foundations of the study of legal anthropology
before even the sociological theories of Ehrlich and Gurvitch, there
is the recent collection Anthropology of Law in the Netherlands.
Essays on Legal Pluralism, ed. K. von Benda-Beckmann and F.
Strijsbosch (Dordrecht, Foris Publications, 1986).
After reading these syntheses, there are the main current theo­
ries of legal pluralism (those of L. Pospisil, S. Falk Moore and
M. Chiba). See L. Pospisil, ‘The nature of law’, Transactions of
the New York Academy of Sciences, series 2, 28, 8 (1956): 746—54;
L. Pospisil, ‘The structure of a society and its multiple legal sys-
The Development o f Legal Anthropology 75
terns’, in Cross-Examinations: Essays in Memory of M. Gluckman,
ed. P. M. Gulliver (Leiden, Brill, 1978), pp. 78-95; Pospisil,
Anthropology of Law (op. cit., above, no. 9); and L. Pospisil, ‘Law
and societal structure among the Nunamiut Eskimo’, in
Exploration in Cultural Anthropology, ed. W. H. Goodenough
(New York, McGraw Hill, 1964), pp. 395-431, where Pospisil
applies his theory of ‘levels of law’ in the case of Inuit Nunamiut
society. See also S. Falk Moore, ‘Law and social change: the
semi-autonomous social field as an appropriate subject of study’,
LSR, 7 (1973): 719-46. See M. Chiba, Asian Indigenous Law
(London and New York, Routledge & Kegan Paul, 1986, 416
pp.), pp. 1-11, 378-95; also by M. Chiba, ‘Three dichotomies of
law: an analytical scheme of legal culture’, Tokai Law Review, 1
(1987): 279-90. Those wishing to extend their knowledge of the
legal aspects of Gurvitch’s theories will find that an issue of Droit
et Société (4 (1986): 341-80) is devoted to them. J. Carbonnier,
in ‘Gurvitch et les juristes’, Dwibeb Société, 1 (1986): 347-52,
ouüines the reasons why Gurvitch has had little influence on
jurists (mainly because he addressed public rather than private
law).
There are also articles dealing with more specific problems. On
the subject of legal pluralism in Roman law, there is G. C. J. J.
Van den Bergh, ‘Le Pluralisme juridique en droit romain’, in Le
Pluralisme juridique, ed. Gilissen (op. cit., above), pp. 89-103; J.
Gaudenet, ‘Les Transfers de droit’, L ’Année sociologique, 27
(1976): 29-59; R. A. Bauman, ‘Comparative law in ancient
times’, paper presented to the Xllth International Congress of
Comparative Law, Sydney, 1986; S. C. Hicks, ‘Comparative law
in ancient times: the legal process’, American Journal of
Contemporary Law, 34 (1986): 81-97. On ‘vulgar law’ there is J.
Gaudemet, ‘A propos du droit vulgaire’, in St B. Biondi, Vol. 1
(Milan, Guiffrè, 1965), pp. 271-300. P. Ourliac and J.-L.
Gazzaniga, Histoire du Droit Privé Français (Paris, Albin Michel,
1985), pp. 34-6, insist on the dichotomy between codified law in
late antiquity, badly drawn up and open to confusion, and that
applied by judges; for them, the unity of Roman law, long pro­
claimed by Romanists, should not conceal the fact that provincial
law existed, obscured but not suppressed by Roman domination,
and reappearing with vigour in the sixth century. On the subject
of the past and present policy of colonizing and centralizing pow-
•cap--------
 76 Legal Anthropology
ers against the law of the communities they sought to control,
there is N. Rouland, ‘Les Colonisations juridiques’, JLP, 1988,
and by the same author: ‘Les Droits mixtes et les théories du plu­
ralisme juridique’, communication présentée au Colloque des
Droits mixtes, Aix-en-Provence, 10-11 December 1987 (to be
published in the conference proceedings).
As regards the important question of the unified system of law
of the state, criticized by all theories of pluralism, there is a
defence of the ‘rule of law’ in B. Barret-Kriegel, L ’Etat et les
esclaves (Paris, Calmann-Lévy, 1979) and, more recently, L ’Etat
de Droit, ed. D. Colas (Paris, PUF, 1987, 254 pp.). On the com-
parativists’ prevailing tendency to seek a supranational unified
field of law, the comments of R. David are relevant: see R. David,
‘La refonte du Code Civil dans les états africains’, Annales
Africaines, 1 (1962): 160-70; and R. David, Les Avatars d'un com­
paratiste (Paris, Economica, 1982), pp. 264-8. On the role played
by jurists in the building of the state, there is Die Rolle derjuristen
bei der Entstehung des modemen Staats, ed. Roman Schnur (Berlin,
Duncker & Humboldt, 1986, 880 pp.). On the history of the uni­
tary principle, see the remarkable thesis of R. Debbasch, Le
Principe Révolutionnaire d'unité et d'invisibilité de la République.
Essai d’histoire politique (Paris, Economica, 1988, 481 pp.).
Debbasch shows that the republican claim to this principle, taken
up by the 1958 Constitution, is rooted in a long tradition. For
most of the philosophers of antiquity, humankind tends towards
unity. Plato asks: ‘Can we mention any greater evil to a city than
that which rends it asunder and makes it not one city but many?’
{Republic V, 462). Christianity is also profoundly unitary: St Luke
warned that ‘Every kingdom divided against itself is brought to
desolation’ (11.17). The Trinity is itself more unitary than plural­
ist: Catholicism established, in its struggle against Arianism at the
Council of Nicaea, that the Son was equal to the Father, and was
not created by him; as for the indivisible Holy Spirit, it is given to
all humankind and is the unifying thread in their existence. Great
churchmen constantly refer to the theme of unity: St Thomas
pronounced himself in favour of monarchy, stating that it repro­
duced divine unity on earth, a comparison taken up by Bossuet in
describing the theory of divine right. The French monarchy, by
the ordinance of Montils les Tours (1454), ordered the official
transcription of customs. This was followed by the gradual
The Development o f Legal Anthropology 77
reforms and codification of the seventeenth and eighteenth cen­
turies, laying the foundations for the unifying theme of the
French Revolution. Meanwhile, as R. Debbasch argues, there is
discontinuity as well as continuity: absolute monarchy may have
attempted centralization, yet never really succeeded in unifying
the kingdom, still marked by considerable diversity in legal status
in 1789. The revolution ushered in a major change in social
thought: the unifying symbol was no longer the king but the
nation, establishing its independent existence from the monarchy
before abolishing it (under the ancien régime the identity of the
king and the nation was complete). Debbasch also makes an
interesting distinction between political unity and legal uniformi­
ty: political unity, guaranteed by the sovereignty of the state,
‘can allow diversity through statute or legislation. This does not
affect the overall sovereignty of the French nation. The only sig­
nificant limitation to sovereignty, which could have been granted
to any of the nation’s constituent parts, would have been the
recognition of a degree of normative autonomy. Yet, as we know,
even overseas territories do not possess this autonomy’ (op. cit.,
p. 419). This brings us back to the underlying arguments about
legal pluralism: Debbasch’s distinction resembles that made by
pluralist writers between plurality (the diversity of rules allowed
by the state) and pluralism (the diversity of legal systems, to
which the state will not admit). Yet the problem remains: is the
fact that the state denies the existence of autonomous normative
influence sufficient to suppress such norms? We do not think so.
Yet, as Debbasch states, unity and political centralization are the
quintessence of the republic. Has unity always been sought? The
history both of philosophy and of the Western states would indi­
cate that this was the case. In our view unity is certainly easier to
envisage than diversity. There is nothing universal about such a
paradigm - as will be revealed when we examine African legal
thought. For M. Alliot, the unitary principle is a lie, obscuring the
reality of social existence, as much in modem as in traditional
societies: ‘the error in these textbooks is worse than the simple
error of ethnocentricism denounced by anthropologists: not con­
tent with describing Western and non-Westem societies through
the eyes of a professor of law, they assume the legal reality of their
own countries is confined to the prevailing single official legal sys­
tem, and then extend this model to other societies’ (M. Alliot,
 78 Legal Anthropology
‘L’Anthropologie juridique et le droit des manuels’, Archiv fur
Rechts- und Sozialphilosophie, 24 (1983): 72).
52 Legal pluralism in the Orient and Africa
The concepts of M. Chiba may be found in the work edited by
him (Asian Indigenous Law, op. cit., no. 51), a collection of valuable
studies, each addressed to a particular country. Egypt’s official
Pharaoic legal system was later to be subjected to the influence of
Roman law, accompanied by non-official customary law. The
Islamic conquest led to the incorporation of Islamic law, which
gradually became official indigenous law, interacting with non-
official indigenous customs. The next stage was the incorporation
of the Napoleonic Code, which penetrated some areas of law,
though incompletely. Today, Egyptian law is a blend of received
and indigenous law, at official and non-official level. The history
of law in Iran is also affected by the determining role of Islamic
law, in its Shiite form. In 640, the Arabs defeated the Persian
Empire: Islamic law became received and official law, whereas the
former official Persian law became non-official, or was partially
incorporated into Islamic law. Since this time, and despite trans­
fers of Western law in an attempt to modernize the country in the
years before Ayatollah Khomeiny came to power, Islamic law
retained its hold. In countries further east, the role of non-official
law appears more important. In Sri Lanka, with its considerable
religious diversity, the inhabitants are not well versed in official
law; from 1953 onwards, a legal system inspired by Hindu law,
traditional Singhalese law and the ideology of the socialist state
was introduced. In India official law is a blend of indigenous
Hindu law and received English law, but since the fit is not per­
fect, non-official law continues to play a part, notably Islamic law
(formerly received law), and the traditional indigenous law of the
mountain people of the northern districts. From the beginning of
the Meiji period, in 1868, modem Japanese law was based on
received Western law: first on European models, and subsequent­
ly, after the Second World War, a common law tradition from the
USA. At present Japanese law is very pluralist and complex.
Codified law exists, but is in practice little used: these non­
imperative concepts of law resemble the legal systems of many
traditional societies in other continents. Further, in practice,
Japanese law can be divided into several categories: official law,
The Development o f Legal Anthropology 79
which contains much indigenous law and received law; non-offi­
cial law, where indigenous law predominates, and the influence of
the family group and communities are very important; precise or
diffuse legal postulates.
If Islamic law has exercised considerable influence on some of
the countries we have mentioned, the same is true of Africa, as J.
Froelich has shown. Customary law and Muslim law are ini evi­
dence in Etudes de droit Africain et Malgache, ed. J. Poirier (Paris,
Cujas, 1965), pp. 361—89. Since the eleventh century, Islamic law
has made its appearance in Africa, though unevenly. During the
period of Mali dominance, in the thirteenth and fifteenth cen­
turies, it was applied in the prince’s court, in the upper echelons
of administration, as well as amongst cultivated urban elites, but
not amongst the majority of the population. The same is true of
the Sonrhaï Empire of the fifteenth and sixteenth centuries. In the
Peuls theocratic states it was rigorously applied. Today Islamic
law continues to broaden its influence; despite its monotheist
character, Africans have found that it harmonizes with their tradi­
tions better than European law (certain institutions, such as the
tolerance of polygamy, are common to both traditional African
and Muslim law). Yet, clearly, Islam had to adapt itself to black
Africa (see below, no. 169).
S3 J. Vanderlinden’s synthesis (1972)
The above illustrations, taken from the legal practices of different
countries, are specific in nature. In a synthetical work, Le
Pluralisme juridique, J. Vanderlinden studies the various origins of
legal pluralism, as well as its objectives and operation (op. cit.,
above, no. 51). Legal pluralism has a variety of origins. The unity
of law may be perceived as unjust, on account of the lower status
of some social groups in relation to others (the status of minors or
some categories of adults; the status, until recendy, of married
women; traditional law in contemporary Africa; the status of
minority groups). There may also be relativity in the notion of
justice: certain groups who do not share the perception of official
law develop their own law (the ‘law of the underworld’ opposed
to that of the state). The unity of law can also appear inequitable
to some: a dominant group may attempt to strengthen its position
in instituting procedures which favour it (patrician law in ancient
Rome, the property-holding qualification in nineteenth-century
1
80 Legal Anthropology
democracies); ethnic or social groups of widely varying composi­
tion may establish a pluralist regime in order to coexist (sixth-
century Romano-barbarian legislation was based on the
individual nature of laws); the existence of specific needs of some
groups encourages them to evolve particular legal forms (the
commercial law of merchants, the feudal law of knights); the need
to give institutions a measure of independence to ensure their
effectiveness plays its part (the granting of privileges or immunity
to certain people); so does judicial decentralization (the further
down the legal hierarchy one goes, the more numerous the juris­
dictions of the same status become, and the more often do similar
situations produce different rulings, varying according to the
jurisdiction), or administrative decentralization (local taxes vary
from area to area); so do the imperatives of economic develop­
ment (the granting of privileges to persons or groups contributing
to the economic development of a society), and the assimilation
of certain people to the ranks of those already enjoying a particu­
lar status (the families of certain workers acquire the same privi­
leges). As regards the objectives and operation of pluralism, J.
Vanderlinden describes a number of factors which cannot be
expanded on here.
These propositions constitute a remarkable work of synthesis;
they are not, however, lacking in ambiguity. In fact we are con­
stantly confronted with the problems raised by J. Griffiths and R.
Debbasch: should we not distinguish more radically between plu­
rality and legal pluralism? Unity does not always involve confor­
mity. The debate is still open, but the most recent theories (S.
Falk Moore, J. Griffiths) incline us towards the ‘stricter’ version
of pluralism, in which the role of the state is qualified to a greater
extent.
54 Further theories o f pluralism
Whilst Max Weber did not formulate a theory of legal pluralism,
he was conscious of the notion and gave it expression in
Wirtschaft und Gesellschaft (1922): the existence of law should not
be identified with the existence of the state, or even of political
authority; legal order may stem from the ability of one or more
individuals to use judicial constraint, expressed through physical
or psychological sanctions.
More recently, M. G. Smith has made his mark on the develop-
The Development o f Legal Anthropology 81
ment of pluralist thinking (‘Social and cultural pluralism in the
Caribbean’, ed. V. Rubin, Annals of the New York Academy of
Sciences, 83 (1960): 763-77). He challenges the ideas of
Furnivall, for whom pluralism was reduced to interracial relation­
ships, and states that the existence of a class structure in modern
societies is not, in itself, indicative of pluralism. Hierarchical
stratification is not necessarily pluralist; for pluralism to exist, the
main cultural institutions of different groups (kin, property, reli­
gion, etc.) must be incompatible. Social cohesion is achieved sole­
ly through the monopoly of political power exercised by one
social group. In three contributions published a few years later in
Pluralism in Africa, ed. L. Kuper and M. G. Smith (Berkeley, CA,
University of California Press 1969) - ‘Institutional and political
conditions of pluralism’, ‘Pluralism in precolonial African soci­
eties’ and ‘Some developments in the analytic framework of plu­
ralism’ - M. G. Smith goes further in distinguishing three kinds
of pluralism: cultural pluralism, consisting of institutional differ­
ences in the absence of corresponding social distinctions; social
pluralism, where institutional differences are associated with
marked social distinctions; and structural pluralism, which pre­
supposes cultural and social pluralism, in which the component
groups of a society are unified solely by the political domination
of one group.
Finally, P. L. Van den Berghe in ‘Pluralism’ (op. cit., above,
no. 51) insists that the degree of pluralism varies according to the
nature of relations existing within and between groups. A society
will tend towards pluralism when the interaction within groups is
non-segmentary, non-utilitarian, affective and diffuse, and the
interaction between groups is segmentary, utilitarian, non-affec-
tive and functional.
55 The Commission on Folk-Law and Legal Pluralism
The commission has held a number of congresses on different
themes: ‘Les institutions étatiques et leur emploi par la Folk-Law’
(Bellagio, Italy, 1981); ‘La condition juridique et le statut réel des
minorités ethniques et culturelles’ (11th Congress of IUAES,
Quebec and Vancouver, 1983); ‘Sécurité sociale formelle et
informelle’ (Tutzing, Germany, 1986); ‘Folk-law et droits
autochtones: une perspective comparatiste’ (Sydney, Australia,
1986); ‘Anthropologie mondiale; éducation, recherche et a
82 Legal Anthropology
tion’ (on legal pluralism in industrial societies, the sociojuridical
position of women in societies undergoing change, the law of
social groups at the end of the twentieth century: strategies of aid
to the Fourth World) (Zagreb, Yugoslavia, 1988).
These conferences are followed by publication of proceedings;
People’s Law and State Law: The Bellagio Papers, ed. A. Allot and
G. R. Woodman (Dordrecht, Foris Publications, 1988, 472 pp.).
The commission also publishes newsletters every two or three
years (for its address see above, no. 10).
56 M ain currents o f legal anthropological thought
In this chapter devoted to the main theoretical problems of legal
anthropology, we have opted for a thematic presentation. Yet
there are traditions and national schools which we must also
account for.
Two variables must be taken into account when describing the
outlook of each country. On the one hand, its colonial record or
the existence of ethnic minorities on its soil: when the discipline
exists in European countries, it is often because these countries
have had a colonial past and the colonies were used as a field of
study, as with France in sub-Saharan Africa, or the Netherlands
in Indonesia. Germany and Italy were less fortunate, because
their colonial experience was shorter and was brought to a close
by two world wars. However, the possession of colonies is not the
only factor determining the birth and development of legal
anthropology. Its existence in the USA and Canada has been
influenced by studies of ethnic minorities (Amerindians). Nations
such as Portugal or Spain, who founded extensive colonial
empires, have not created any school or tradition of legal
anthropology.
A second factor is present, allied to the first: the dynamics and
direction of particular legal and anthropological schools of
thought. If France and continental Europe have been much influ­
enced by the Roman tradition, English-speaking countries have
been influenced by the spirit of common law, and have benefited
from more advanced social sciences in general and anthropology
in particular. This cultural factor seems to have been a more deter­
mining one than the previous factor, since the important division
is that between the ‘continental’ tradition (Western European
countries) and the English-speaking tradition (USA, Canada,
The Development o f Legal Anthropology 83
Great Britain). The absence or presence of ethnic minorities and
the length of the colonial experience are only secondary considera­
tions affecting the development of legal anthropology in the indi­
vidual countries belonging to these main categories. (For further
information on the continental-English-speaking divide, see E. Le
Roy, ‘Pour une anthropologie du droit’, Revue interdisciplinaire
d’Etudes juridiques, 1 (1978): 71-100; E. Le Roy, ‘Ethnologie
juridique’, Digesto (Turin, in press); A. N. Allot, ‘The people as
law-makers: custom, practice, and public opinion as sources of law
in Africa and England’, Journal of African Law, 21, 1 (1977): 2-5.)
If functionalism (for English-speakers) and the civilian tradition
(for continentals) are the key elements of these two currents of
thought, other theories, in contrast, such as Marxism and struc­
turalism, do not seem to have inspired world-wide schools of
thought in legal anthropology. This statement, though valid,
requires qualification. Marxist legal anthropologists do exist -
there is Max Gluckman; and some American writers, such as R.
L. Abel, see the existence of ‘informal justice’ in the USA as the
means whereby dominant groups maintain their grip over the
groups they dominate and create a ‘two-track’ system of justice.
Other authors, such as F. G. Snyder and P. Fitzpatrick, have,
since 1975, concentrated on economic factors and social inequali­
ty, and are in particular associated with study of legal accultura­
tion, accompanying the development of capitalism. These are
English-speaking authors, whereas it is essentially French writers
(M. Godelier, C. Meillassoux, E. Terray) who, since the late
1960s, have applied themselves to redefining the Marxist concep­
tual framework, in order to apply Marxism to traditional societies.
In fact the majority of these neo-Marxists have abandoned the
classic distinction between infrastructure and superstructure: law
is seen as an integral part of the mode of production. (For further
analysis, see F. von Benda-Beckmann’s introductory article to the
contributions of P. Fitzpatrick, E. Le. Roy and F. G. Snyder,
‘Neo-Marxist interpretations of folk-law in pluralist legal sys­
tems’, in People’s Law and State Law (op. cit., above, no. 55), pp.
238-74; F. G. Snyder, ‘Land law and economic change in rural
Senegal: Diola pledge transactions and disputes’ in Social
Anthropology and Law, ed. I. Hamnet (London and New York,
Academic Press, ASA, Vol. 14, 1977), pp. 113-57; F. G. Snyder,
Capitalism and Legal Change: An African Transformation (New
84 Legal Anthropology
York and London, Academie Press, 1981); and also by Snyder,
‘Anthropology: Dispute Processes and Law’ (op. cit., above, no.
49), pp. 157-9; E. Le Roy, ‘L’Anthropologie juridique anglo-sax­
onne et l’heritage scientifique de Max Gluckman: un point de vue
français’, African Law Studies, 17 (1979): 53-69; P. Fitzpatrick,
‘Is it simple to be a Marxist in legal anthropology?’, Modem Law
Review, 48 (1985): 472-85.)
As regards structuralism, although it may have inspired the work
of A.-J. Amaud in the sociology of law (see in particular A.-J.
Arnaud, Essai d’analyse structurale du Code civil français: la règle du
jeu dans la paix bourgeoise [Paris, LGDJ, 1973]), we rarely find it
present in legal anthropology, except perhaps in the emphasis of E.
Le Roy and the Laboratoire d’anthropologie juridique de Paris
(see below, no. 60) and N. Rouland, ‘Persistances et invariances:
structure, histoire, droit’, RRJ, 3 (1985): 731-71.
We will now consider, in more detail, the various national
schools belonging to the two main currents of thought which we
have cited.
57 The English-speaking tradition
Most English-speaking studies published between 1938 and the
mid-1960s (the most important being those of Schapera, Hoebel,
Gluckman, Bohannan, Pospisil and Gulliver) present common
characteristics: historical change plays a minor role, as does the
acculturation produced by a colonial regime, yet most of these
studies are contemporary with colonialism. In keeping with a
functionalist outlook, societies are presented as homogenous and
sealed units: the methodology is essentially that of processual
analysis. Until recently these works had little influence on conti­
nental schools and continued to follow their own paths. From
1965 we may detect a development as continental thought and
English-speaking thought begin to converge. In an important arti­
cle in 1965 (‘The anthropological study of law’, American
Anthropologist, 67, 6, 2 (1965): 3-32), L. Nader insists that legal
processes do not have a separate existence isolated from the other
social processes around them and reacts against the ‘mono­
graphic’ emphasis of previous research. We will now consider
cross-cultural themes, using the settlement of disputes as a basis
of comparison - there are a finite number of modes of settling dis­
putes. The need to generalize has led American legal anthropolo­
The Development o f Legal Anthropology 85
gists to reorientate themselves fundamentally: they now study
both traditional and modem societies. Thus R. L. Abel has carried
out a very valuable piece of legal macro-sociology in simultaneous­
ly considering the settlement of conflict in Kenya and in the USA
(see R. L. Abel, ‘Theories of litigation in society: “modem” dis­
pute institutions in “tribal” society and “tribal” institutions in
“modem” society as alternative legal forms’, in Alternative
Rechtsformen und Altemativen zum Recht, ed. E. Blankenburg, E.
Klausa and H. Rottleuthner [6 Jahrbuch fur Rechtssoziologie und
Rechtstheorie, 1979], pp. 165-91; and ‘Western courts in non-
Westem settings: patterns of court use in colonial and neo-colo-
nial Africa’, in The Imposition of Law, ed. S. Burman and B.
Harrell-Bond (New York/Toronto, Academic Press, 1979).
Studies of this kind have generally focused on the subgroups of
larger societies, often minority or disadvantaged groups (in partic­
ular the marginal groups of large American cities) and on the
non-state (‘informal justice’) procedures of settling disputes.
Most of these studies also distinguish between conflictual
processes (dispute processes) and the settling of disputes (dispute
processings); the former have been of particular interest to social
scientists, whereas the latter, more outcome-orientated, have been
the province of traditional jurists and government agencies in
social policy. During this period there were developments in the
teaching of legal anthropology in America which, fifteen years
later, European countries could still not match; in 1973, thirty-
one American universities and colleges offered this discipline.
(See also, in particular, Snyder, ‘Anthropology: dispute processes
and law’, op. cit., above, no. 49, pp. 141-80; Nader’s article cited
above, ‘The anthropological study of law’; L. Nader and B.
Yngvesson, ‘On studying the ethnography of law and its conse­
quences’ in Handbook of Social and Cultural Anthropology [op. cit.,
above, no. 8]). The work of H. W. Baade, ‘Ethnological jurispru­
dence and legal anthropology in the United States’ (report sub­
mitted to the 11th International Congress of Comparative Law,
Budapest, 1978), remains, as yet, unpublished.
86 Legal Anthropology
58 The ‘A d a t’ Law School: the leading position o f the Dutch
school in Europe
We begin our survey of the continental schools with the Dutch
school of Indonesian customary law (Adat law). The dynamism
and capacity for innovation of these Dutch workers should, by
rights, have given them pride of place in European legal anthro­
pology. If this has not been the case it is because much of their
work has not been translated into English and also because most
legal anthropologists, English-speaking or no, are unfamiliar with
Indonesia as an area of study (unlike Africa); finally Dutch work­
ers have often undervalued their own national school.
Van Vollenhoven (1874-1933) was the founder of the Adat Law
School; he refused to consider sanctions as the legal criterion and,
in 1901, developed the concept o f ‘autonomous communities’, able
to evolve their own law (villages, families, clans, etc.). He intro­
duced the idea of legal pluralism, some time before Ehrlich and
Gurvitch. In 1937 he also anticipated by some twenty years the
Gluckman-Bohannan controversy, in insisting that legal anthropol­
ogy adopt an indigenous view of law, as represented in thought and
speech. On more than one occasion Van Vollenhoven became the
advocate of Indonesians in their dealings with the colonial authori­
ties: he opposed the unification of law in Indonesia (this would
have been to the detriment of traditional law) and defended cus­
tomary law. More generally, the method of the Adat Law School
can be identified with continental thought, with particular reference
to customary norms. From 1900 to 1940, the Netherlands was the
most productive country in legal anthropology.
After the Second World War, English-speaking workers came to
the fore, but the Adat Law School continued to produce remark­
able exponents (F. D. Holleman, G. Van den Steenhoven),
succeeded by the present generation of Dutch legal anthropolo­
gists, amongst whom we may cite J. Griffiths, author of an
extremely valuable synthesis of legal anthropology and the general
theory of legal processes; F. von Benda-Beckmann, specialist on
property law and the settlement of disputes in Sumatra; E. Van
Rouveroy van Nieuwaal, specialist on the Togo; J. Boissevan, who
carried out fieldwork in the village communities of Malta; A.
Kuper in his study of the Kalahari of Botswana; A. Strijbosch; F.
Strijbosch; G. Van den Bergh, etc. The vitality of the Dutch
school partly accounts for the inclusion of legal anthropology in
The Development o f Legal Anthropology 87
law faculty programmes (particularly at Nijmegen and Leiden);
also ‘literary’ anthropologists were never much interested in law.
The Dutch school has also made an important international con­
tribution to the development of legal anthropology through the
creation, in 1978, of the Commission on Folk-Law and Pluralism
(see above, nos 41 and 55); and through the Journal of Legal
Pluralism, the main international organ of legal anthropology,
mainly edited by Dutch writers.
Belgium, however, although similar in size to Holland and also
an important colonial power, is poles apart in the development of
legal anthropology, proof enough, a contrario, that if fieldwork is
important to legal anthropology, it is the existence of a tradition
of teaching and research which encourages its development. It
was only in the 1920s, with the beginnings of colonization in the
Belgian Congo, that the first studies emerged, mainly the work of
jurists and missionaries (H. Rolin, Hulotaert). These studies are
in general of a descriptive nature and were tailored to the needs of
colonial administration. Other later writers (A. Sohier, E. Possoz)
were to publish research which was wider-ranging but shot
through with ethnocentricism, since the main concepts were
derived from the European legal tradition. An authentic legal
anthropology could have developed, as the work of such jurists as
G. Malengreau, J. Pauwels, J. Vanderlinden, or D. Biebuyck (an
ethnologist) demonstrates. The Belgian school was handicapped
by two factors: first, the emergence of the scientific approach of
these latter writers coincided with the end of colonial rule; sec­
ond, the Belgian universities (and the ex-Belgian colonies) did not
express interest in the discipline (legal ethnology was offered at
the Université libre de Bruxelles, but was recently removed from
teaching programmes).
For further details on the Adat Law School see the indispens­
able work of Griffiths, ‘Anthropology of law in the Netherlands in
the 1970s’, Niews-brief voor nederlandstalige rechtssociologen, recht-
santroplogen en rechtspsychologen (NNR), 4 (1983): 132—240, fol­
lowed by a full bibliography (this important study has been
published in abridged form in J. Van Houtte (ed.), Sociology of
Law and Legal Anthropology in Dutch-Speaking Countries [Nijhoff-
Dordrecht, 1985], pp. 105-62; and see K. von Benda-Beckmann
and F. Strijbosch, Anthropology of Law in the Netherlands: Essays in
Legal Pluralism [Dordrecht, Foris Publications, 1986]). There is
also A. K. and J. M. Strijbosch, ‘Methods and theories of Dutch
ii
88 Legal Anthropology
juridical-ethnological research in the period 1900-1977’,
Netherlands Reports to the 10th International Congress of Comparative
Law (Kluwer-Deventer, 1978), pp. 1-15; F. von Benda-
Beckmann, ‘The development of folk property laws in complex
societies: an overview of Dutch scholarship, with special refer­
ences to the property law of the Minangkabau, West Sumatra’,
Netherlands Reports to the 11th International Congress of Comparative
Law, Caracas (Kluwer-Deventer, Law and Tradition Publishers,
1982), pp. 1-18. For a summary of the contribution of the Adat
Law School, there is B. Ter Haar, Adat Law in Indonesia (New
York, Institute of Pacific Relations, 1948) and, more recently, M.
Koesnoe, Introduction to Indonesian Adat Law (Nijmegen, Catholic
University, 1971), as well as the works cited in the bibliography of
Griffiths’s work (see above). Finally, as regards Belgian legal
ethnology, there is J. Vanderlinden, ‘L’Ethnologie juridique en
Belgique de Post à Lévi-Strauss’, Rapports belges au Xe Congrès
international de droit comparé, Budapest, 1978 (Brussels, Bruylant,
1978), pp. 1-9.
59 French legal anthropology: a late developer
We have already alluded to France’s absence from the scene
between 1860 and 1880, when legal anthropology was bom,
Unfortunately this was more than the orchestral silence preceding
the momentous launch of a symphony. On the contrary, until the
1960s, apart from the brilliant exceptions of M. Mauss or H.
Lévy-Bruhl, France maintained its silence, apparently unaware of
developments in English-speaking countries or in the
Netherlands. Thus several decades were remarkable only for their
theoretical poverty. French legal anthropologists continued to
adhere to evolutionism, an outmoded concept; colonial jurists,
imbued with applied anthropology, modified traditional law in
the process of codification through the transcription of customs,
or in sitting in tribal courts. Colonialism brought in its wake a
period of considerable ethnocentricism in law: the principle of
assimilation went hand in hand with a lack of understanding of
indigenous legal practices and with the emphasis on Western law
in general, and Napoleonic law in particular. So flagrant was the
ethnocentricism that non-jurist ethnologists, with the exception of
M. Griaule, avoided the whole question of law. French legal
anthropology thus suffered from a considerable handicap in rela­
The Development o f Legal Anthropology 89
tion to other national schools. The first steps came only with H.
Lévy-Bruhl (1884-1964), whose students (M. Alliot, J. Poirier)
were able to bring his work to fruition. Lévy-Bruhl, still largely
unrecognized in French faculties of law, was a Romanist who
refused to conform and who, using Bonfante in Italy as a refer­
ence point, thought that ethnology could clarify certain problems
in early Roman law, where there are large gaps in the evidence.
He also believed that the study of so-called ‘primitive’ societies
would permit a better understanding of our own societies, in so
far as they still included institutions whose origins lay in archaic
‘pre-legaP times: this recourse to evolutionism tends, today, to
date his thinking. But at a time when exegetic studies were the
norm, his open outlook was quite exceptional. Aided by ethnolo­
gy and history, he contributed to the study of Roman law by
refusing to accept it as a timeless model to be slotted into a his­
torical framework, and relating it to other social phenomena. He
also drew attention to the original nature of the law of traditional
societies and contributed to the recognition of these systems of
law. Although he failed to influence the jurists of his period, he
awakened an interest amongst his students, helped develop the
teaching of legal anthropology in France, and encouraged a number
of successful initiatives in the field of research. Legal anthropology
in France owes its existence as a discipline essentially to his disci­
ples. The groundwork was laid by Maunier and Labouret in the
interwar period. The former, a professor of law, created the ‘Salle
d’Ethnologie juridique’ at the Paris Faculty of Law (directed by
H. Lévy-Bruhl after the war), and was founder of the series
‘Etudes de sociologie et d’ethnologie juridiques’. The latter, a
French colonial governor, started the first regular course in legal
ethnology, at the Ecole Coloniale. It was left to Lévy-Bruhl’s stu­
dents to continue the work: J. Poirier took over from H. Labouret
at the Ecole Nationale de la France d’Outre-Mer and developed
the study of African law: in 1955, Lévy-Bruhl started a course in
the study of traditional and contemporary law in Africa (a course
in Arab law already existed), mainly taught by M. Alliot and J.
Poirier. In 1964, on Alliot’s initiative, and in the same faculty, a
department of African economy and law was created. A year later
Alliot founded the ‘Laboratoire d’anthropologie juridique’ whose
primary objective was to create an ethnic and thematic corpus of
African legal terminology, a task entrusted to a team of workers
90 Legal Anthropology
co-ordinated by R. Verdier. We are also indebted to Lévy-Bruhl,
Alliot and Poirier for the first overview of the problems of legal
ethnology, published in 1968, in Ethnologie générale (see above,
no. 4).
The two decades following the Second World War proved to be
decisive. First, it is in this period, on the foundations laid by previ­
ous experience, that teaching and research institutions were created,
m a k i n g possible, with some modifications, the development of
French legal anthropology to this day. Secondly, given the
research interests of the students of H. Lévy-Bruhl, Africa
became the principal focus of this anthropology (we should, how­
ever, note that, whether of the jurist or ‘literary’ variety, French
legal anthropologists have also covered other areas: Muslim law
has been studied by Lingat and Lafont, Melanesian chiefdoms by
J. Guiart; since 1976 the author’s own work has been centred on
the study of traditional law and the acculturation of law amongst
Arctic peoples). Finally, since the 1960s French legal anthropology
has at last broken with the evolutionist and ethnocentric prejudices
of the preceding era, and has witnessed considerable develop­
ments in theoretical and epistemological research. This new
outlook has been made possible not only by the work of those we
have cited, but also because of decolonization, which redeemed a
legal anthropology mortgaged to Western law and reflecting a
political supremacy which has since disapeared. (It is worth
repeating in this context that although colonialism provided an
indispensable research terrain for anthropology, it also tainted
anthropology with an ideology which ran counter to the develop­
ment of a truly objective approach.)
Today, French legal anthropology is represented by two institu­
tions: ‘Le Laboratoire d’anthropologie juridique de Paris’ (LAJP),
directed by M. Alliot and E. Le Roy, and the ‘Droit et Cultures’
centre, directed by R. Verdier. For further details, see E. Le Roy,
‘La Méthode anthropologique et l’histoire judiciaire’ to appear in
Droit et Société. J. N. Lambert, ‘La Méthode du juriste ethnologue’,
Rapports généraux au Xe Congrès international de droit comparé
(Budapest, 1981), states, on the contrary, that the colonial period
was a golden age for legal ethnology and rejects its later orienta­
tion. In J. Poirier, ‘L’Ethnologie juridique’, Revue de l’enseignement
supérieur, 3 (1965): 25-37, and, also by J. Poirier, ‘Situation
actuelle et programme de travail de l’ethnologie juridique’, Revue
The Development o f Legal Anthropology 91
internationale des Sciences sociales, 22, 3 (1970): 509-27, there is
complementary information on this period of growth in French
legal anthropology. On the role of H. Lévy-Bruhl, see N. Rouland,
‘H. Lévy-Bruhl and the future of law’, RRJ, 2 (1985): 510-30. For
a good summary of the development of French legal anthropology
see E. Le Roy, ‘L’état de l’anthropologie juridique française’,
BLAJP, 14 (1988): 45-54; and also the special issue of the Journal
of Legal Pluralism (1991), devoted to French legal anthropology.
60 The Laboratoire d ’anthropologie juridique de Paris
The guiding principles of the LAJP, a group of about twenty
workers of different nationalities, make a clean break with the
previous period: its members set themselves the task of avoiding
those ethnocentric colonial ideologies concerning law which tended
to favour the European legal tradition and a policy of assimilation.
Through a study of acculturation they hoped to expose any resur­
gence of this ideology, often present in the law of development,
which was until recently based on methods of codification favour­
ing European law at the expense of indigenous law. On a more
theoretical level, the LAJP has attempted to evolve definitions of
law and methodologies which will permit the elaboration of cross-
cultural comparisons, from which modem societies are not
excluded. As regards the definition of law, M. Alliot and E. Le
Roy demonstrate that the definition of traditional jurists, based
on the prescriptions of law and presenting law as a sector of soci­
ety parallel to economics, politics, or religion, has no cross-cultur­
al value and is valid only for our own societies. We will describe
the theses of the LAJP in greater detail later (see below, no. 76).
The LAJP, in its search for a broader conception of legal
anthropology, and whilst continuing to carry out research in sub-
Saharan Africa, has also brought modern French law into its
ambit (for example, the law concerning minors, and the settle­
ment of disputes by non-contentious means).
The work of some LAJP researchers, particularly that of E. Le
Roy, comes to resemble structuralism in its search for formaliza­
tion and an overview (we know that Lévi-Strauss studied law, but
found it extremely dull). There would appear to be some com­
mon ground. For Le Roy, law is more a system of communication
than a way of settling disputes (Verdier’s analysis of vengeance as
a form of exchange between opposing groups contains elements
92 Legal Anthropology
of this idea), and can be compared with a language whose gram­
mar may be more important than the discourse itself, i.e. the
organizing principles and mode of expression. In this way, with
the help of a referential framework, a comparative methodology
may be employed, general enough to take account of the particu­
lar features of each institution observed. The matrix method (see
below, no. 145) is also structuralist, to the extent that it results in
the building of a model applicable to systems other than that for
which it was originally conceived. Yet Le Roy’s systemic
approach is of a different nature: his work gives greater emphasis
to diachronic factors than does that of Lévi-Strauss. Le Roy even
states that the operation of traditional and modem societies can­
not be described by the use of a single model. The industrial rev­
olution and the modern capitalist state constitute a fault-line in
human history (this does not mean, as we have seen, that conver­
gent methods of analysis cannot be employed). We may note that
even Lévi-Strauss, in later works and statements, gave greater
emphasis to diachrony and history, and certain commentators
(see particularly B. S. Jackson, ‘Towards a structuralist theory of
law’, Liverpool Law Review, 2 (1980): 5—30) have even identified
two kinds of structuralism, one rigid, the other more flexible
(non-universal structures, socially contingent, and vulnerable to
historical change, may exist). We may thus conclude that what
separates the work of Le Roy and the work of Lévi-Strauss is less
important than what unites them. However, the work of the LAJP
team does not reflect all the concerns of Le Roy. Thus M. Alliot,
who stresses the diversity of legal systems, is struck by the value
systems of traditional societies, which he considers instil greater
responsibility than those of modern societies. He believes that
were elaboration of the basic structures of law possible, it would
lead only to the construction of progressively weaker models,
reflecting, perhaps, the way the human spirit operates, but pass­
ing wide of the mark, namely the practical consequences of this
operation, which must vary from society to society: ‘The laying
bare of underlying structures would be no more useful in under­
standing particular systems of law than the properties of steel are
to an understanding of the workings of cars, watches or machine
tools.’ Alliot agrees with other critics of Lévi-Strauss, such as M.
Godelier, that his studies of myth and kinship ties are not closely
enough related to social reality, and do not reveal their role in the
The Development o f Legal Anthropology 93
control of societies by particular groups or individuals. (A general
survey of the work of the LAJP is to be found in E. Le Roy,
‘Réflections sur une interprétation anthropologique du droit
africain: le Laboratoire d’anthropologie juridique’, Revue juridique
et politique, Indépendance et coopération, 26, 3 (1972): 427-48; and,
for a summary of the contribution of the LAJP towards a defini­
tion of law and the methodology of legal anthropology, ‘Rapport
d’activité (1977-1981) du LAJP’, doc. unpublished (Paris, LAJP,
1981, 89 pp.). On the relationship between Lévi-Strauss’s struc­
turalism and the LAJP, see E. Le Roy, ‘Pour une anthropologie
du droit’, Revue interdisciplinaire d’études juridiques, 1 (1978):
94-100; N. Rouland, ‘Persistances et invariances: structure, his­
toire, droit’, RRJ, 3 (1985): 731-71; Negri, Il Giurista dell’area
romanistica (op. cit., above, no. 43), pp. 138-40.)
61 The work o f R. Verdier and the *Droit et Cultures ’ Centre
Raymond Verdier is an Africanist who, after helping create the
LAJP and working on his project of editing the corpus of African
law, founded, in 1977, the ‘Droit et Cultures’ research centre at
the Université de Paris X-Nanterre, where legal historians and
legal anthropologists were to work together. He also launched
France’s only periodical on legal anthropology, Droit et Cultures.
Finally, he edited a very valuable work on the setdement of dis­
putes and vengeance, examining this theme from a perspective
which includes anthropology, Roman law, the history of law and
the principal philosophical currents (La Vengeance, ed. R. Verdier
[Paris, Cujas, 4 vols, 1981 to 1984]). More recently he edited
another work on African property systems (Systèmes fonciers à la
ville et au village, ed. R. Verdier and A. Rochegude [Paris,
Harmattan, 1986, 296 pp.]; summarized by N. Rouland in DC,
14 (1987): 157-9). Currenüy the Droit et Cultures centre (which
involves about fifteen researchers, amongst whom we may cite G.
Courtois, J.-P. Poly, L. Assier-Andrieu and R. Motta) is involved
in a further collective work, ‘Le Serment’ (oaths). R. Verdier has
thus been involved in a number of important initiatives which
have had the merit, through a number of publications of high
quality, of widening interest in French legal anthropology.
Naturally this work is underpinned by a particular conception of
law.
Until the early 1970s, Verdier’s work could be broadly related
LL
r 94 Legal Anthropology
to the English-speaking tradition. Later, he was influenced by the
civilian tradition, becoming aware of the link between anthropo­
logical research and the law of antiquity, which helps explain the
strongly interdisciplinary nature of the research in which he is
involved. However, his ideas concerning law still reflect the
English-speaking tradition: law is represented by a body of phe­
nomena, rather than in concepts situating law in the social con­
text of the culture which shapes it (whence, no doubt, a less
pronounced interest in epistemology and pure theory than the
LAJP researchers). Verdier also states, in describing a vindicatory
system in his work on La Vengeance, that law is ‘a system of com­
munication and exchange of values establishing symbolic
relationships between the individuals and groups of the same
political unit, or between different units of a much larger entity’.
Finally, Verdier compares law with myth (they are both the
expression of normative statements which are articulated through
a transcendent authority) and custom with ritual (both consisting
of events and actions rather than written or oral discourse, legiti­
mated by belief in their timelessness and repetitive character); see
his article, ‘Premières orientations pour une anthropologie du
droit', Droit et Cultures, 1 (1981): 8-9.
Thus the LAJP and Verdier’s thinking are not antagonistic, nor
are their definitions of law mutually exclusive. However, their
respective perceptions can be contrasted: whereas Verdier’s
approach is multi-disciplinary, that of the LAJP is centred more
on African law and the global comparisons between different
kinds of society dear to M. Alliot, be they traditional or modem.
This is essential if legal anthropology is to gain acceptance
amongst traditional jurists. Legal anthropology cannot confine
itself to the study of law in ‘exotic’ societies. Also, Verdier’s more
classic research methods encompass the description of legal phe­
nomena within different societies, whilst members of the LAJP
are more concerned with the honing of methodological tools,
epistemological questions and the constructions of theoretical
models (the level of abstraction of this approach restricts access
for the uninitiated). Finally, in contrast to the work of the LAJP,
which suffers from poor dissemination, Verdier has taken steps to
ensure that a comparatively large scientific audience has access to
research results through their regular publication. This is of capi­
tal importance to our discipline. (For further details on the work
The Development o f Legal Anthropology 95
of R. Verdier, see R. Motta, ‘I percorsi dell’antropoligia giuridica
(II): gli studi di Raymond Verdier, negli anni’ 80’, Materiali per
'
1
una storia della cultura giuridica, 13, 1 (1983): 283-96; and, also
by Motta, Teorie del diritto primitivo (op. cit., above, no. 43), pp.
183-7.
62 Other European countries
The best Italian research took place during the period of colonial
expansion (the work by Cerulli, Scarpa and M. Colucci between
1915 and 1927 on Somalia and Ethiopia). Conversely, Italian
legal ethnology virtually dried up with the end of Italian colonial­
ism. However, the output of young researchers such as A. Negri
and R. Motta has already been considerable (see above, no. 43),
especially concerning the development of anthropological
thought. The discipline is taught in the faculties of law and politi­
cal science of Turin and Milan (cf. A. Negri, ‘La Méthode du
jurist ethnologue’, Rapports nationaux Italiens au Xe Congrès inter­
national de droit comparé, Budapest, 1978 (Milan, Giuffrè, 1978),
pp. 37-62).
In Germany, we have alluded (above, no. 19) to the importance
of late nineteenth-century writers in the birth of legal anthropolo­
gy; R. Thumwald (1869-1954) played a particular role. At pre­
sent, German legal anthropology is mainly concerned with
philosophical questions and, generally speaking, the discipline is
not valued. This is particularly regrettable when we consider what
a debt the discipline owes to late nineteenth- and early twentieth-
century writers (for more details, see R. Schott, ‘Main trends in
German ethnological jurispmdence and legal ethnology’, JLP, 20
(1982): 37-68).
Finally, Romanian legal ethnology has suffered since the end of
the Second World War from a socialist regime little concerned
with the collection of customs, and has turned its attention exclu­
sively to the Romanian legal tradition (see R. Vulcanescu,
Etnologie Juridica [Bucharest, 1970]; V. A. Georgesco, ‘La
Méthode du juriste ethnologue en Roumanie’, Revue roumaine des
sciences sociales, 22, 1 (1978): 191—207).
63 The current situation in legal anthropology
The current situation is gauged by four factors: the number of
researchers and their origin; the particular situation in each
T
96 Legal Anthropology
The Development o f Legal Anthropology 97
country; the main currents of thought; the position of legal Europe’s total, whilst much lower, is not negligible, but the
anthropology in relation to current trends in anthropology. researchers are widely dispersed. The vitality of the Dutch school
On the number and origin of researchers, it is impossible to make stands out, benefiting from a long tradition in legal anthropology.
an exact head-count of legal anthropologists world-wide, since Finally, the developing countries (Africa containing most of
theirs is not a sufficiently well-organized community. We can them), achieve a total comparable with the European figure, yet
make an approximation on the basis of the membership of the some qualification is required. First, dispersion is even more a
Commission on Folk-Law and Legal Pluralism, the major inter­ factor; second, the researchers do not necessarily receive adequate
national body in the discipline. This is of only limited value, since institutional and local support; finally, and this can only be pub­
not all researchers are members of the commission. Also, and licly deplored, many newly independent states are reticent about
most importandy, this quantitative assessment takes no account developing the social sciences in general (their critical nature is
of the quality of the work of particular researchers or countries: not always appreciated), and anthropology in particular. The lat­
quality does not vary as a function of quantity. Having made this ter is still regarded as a ‘colonial’ science, and a dangerous one
proviso, the 253 members in 1987 were geographically distrib­ because, with its emphasis on traditional law, it is construed as
uted in the following way: impeding development and unification.
North America Canada 61 USA 44 Total 105 On the position of each country (we will examine the main ones):
Australia 19 Total 19 the United States is the country which has, after Canada, the great­
New Zealand 7 Total 7
2
est number of researchers. The teaching of legal anthropology is
Europe Netherlands 26 Austria
Germany 8 Poland 2 i well established and, in 1981, was offered in sixty departments of
UK 8 Finland 1 anthropology and law schools (twice as many as ten years ago).
Belgium 5 Hungary 1 i Although anthropologists and jurists work together more closely,
France 5 Portugal 1 this has been a recent development, jurists tending to view anthro­
Denmark 3 Switzerland 1
pology as irrelevant and viewing their own discipline in terms of
Italy 3 Total 66
Africa Tanzania 14 Botswana 1 professional training rather than as a science. L. Nader (Berkeley)
Ghana 3 Ethiopia 1 and R. L. Abel (University of California, Los Angeles) have, in
Malawi 2 Niger 1 particular, attempted to foster the development of legal anthropol­
Sudan 2 Nigeria 1 ogy and the application of its methods to modern societies, devel­
Senegal 1 oping the concept of ‘informal justice’. There has also been
S. Africa 1
Zambia 1 considerable interest in legal pluralism and arriving at a synthesis
Total 28 in the normative-processual debate. Finally, we must note that in
South and Brazil 3 the United States - and no doubt in Canada as well - the exis­
Central Puerto Rico 1 tence of large and well-organized ethnic minorities, whose rights
America Venezuela 1 Total 5 are respected, has both benefited legal anthropology and provided
Near, Middle Indonesia 8 Israel 2
and Far East India 3 Egypt 1 career prospects for para-legal work in assisting lawyers defending
Japan 3 Hong Kong 1 the rights of indigenous peoples. For further information see the
Philippines 3 Malaysia 1 Total 22 special issue of the American Behavioral Scientist, 25, 1 (1981),
New Guinea 1 Total 1 devoted to the current trends in legal anthropology in the United
States; see also Snyder, ‘Anthropology: Dispute Processes and
Several points can be made. The numerical superiority of Law’ (op. cit., above, no. 49), pp. 149-59.
English-speaking nations, notably the United States and Canada, In France we may note that legal anthropology has enjoyed a
no doubt reflects their well-established interest in the discipline. more prominent position in the last ten years - whereas in the
98 Legal Anthropology
mid-1970s it was all but ignored. A number of jurists from other
disciplines express an interest in developments, curious to sèe
how legal anthropology can be useful to them. This interest coin­
cides with the end of a long decline in the theoretical study of
law, attributable to a number of factors. First, as C. Atias has
stated in Epistémologie juridique (op. cit., above, no. 12), p. 71,
jurists have become increasingly involved in modifications in the
prescriptions of official law, and research has been devoted to
practical applications; second, sociologically, jurists were tradi­
tionally recruited from the ranks of the upper bourgeoisie and
since they are now drawn from the middle class, the cultural level
has dropped accordingly. We may also add that the teaching of
law has been kept apart from the social sciences. Under the
empire, imperial legislation from the Ecole de l’Exégèse (whose
very existence some seem to doubt: see R. Rémy, ‘Eloge de
l’Exégèse’, Droits, 1 (1985): 115-123) tended to confuse law with
official law, and, until the end of the nineteenth century, promi­
nent writers such as Duguit, Hauriou and Geny all pleaded that
the analysis of law include socioeconomic questions. Later, the
1954 reform in the teaching of law opposed conservatives (favour­
ing the teaching of law in isolation) and modernists (associating
law with the social sciences). Generally speaking, the traditional
disciplines maintained their position and ‘modernization’ consisted
mainly in adapting teaching to the new technical and professional
needs of society. Evidence of this subtle ‘modernized conser­
vatism’ is to be found in the decline of the history of law, in the
minor role accorded to comparative law and the philosophy of
law, and in the almost total ignorance of legal anthropology. The
1968 law on the independence of universities provided an oppor­
tunity to bring law and the social sciences closer together.
However, in most cases, the bones of the old faculties reappeared
clothed with the new flesh of the UEF. (On the general develop­
ment of the teaching of law since the nineteenth century see A.-J.
Arnaud, Les Juristes face à la société [Paris, PUF, 1975, 228 pp.];
and, more recently, J. Gatti-Montain, Le Système d’enseignement
du droit en France [Lyon, Presses universitaires de Lyon, 1987,
312 pp.].) Today, there have been some changes: jurists have
been overtaken by the pace of change in the application of law
and have felt the need to stand back and take stock with a more
The Development o f Legal Anthropology 99
critical legal theory (this can be be seen in the recent growth in
legal philosophy and epistemology, and the work of jurists such as
C. Atias); further, the ‘crisis’ which we believe we are undergoing
(cultural rather than economic) encourages a questioning atti­
tude. Finally, it is becoming increasingly apparent, as E. Morin
notes, that we live in a period of paradigmatic change, prompting
us to search for connections in realms of thought hitherto consid­
ered unrelated (cf. E. Morin, ‘Science avec conscience’, a lecture
and project, in his Science et conscience de la complexité [Aix en
Provence, Librairie de l’Université, 1984, 44 pp.]). In this sense,
legal anthropology, in so far as it encourages the intercultural
comparison of legal systems, both traditional and modem, can
with confidence be situated in the new paradigm. However, even
if current developments are favourable, the battle has not been
won. First, the discipline can field only a handful of researchers
(about ten full-time and fifteen ‘occasionals’), whose output is all
the more remarkable, yet who cannot exert sufficient leverage as a
pressure group on other disciplines. Legal anthropology is dra­
matically underfunded, whereas the international character of the
discipline, the importance of work in the field and the absolute
necessity of publication all demand considerable financial input.
Moreover, since 1977, research in the social sciences has been
funded by contract, which has correspondingly reduced regular
financing, the latter being indispensable to a young discipline
which needs to bring to fruition the intellectual investment of the
last twenty years and to disseminate its results. Further, contrary
to North American practice, in France the private and public sec­
tor do not communicate with each other; the private sector will
not employ anthropologists, preferring to subcontract through
semi-public bodies (on these points see E. Le Roy,
‘L’Anthropologie et la demande sociale: dialogue avec une firme
de bonne compagnie’, to appear in Anthropologie et Société,
Montreal). Finally, and perhaps most significantly, there are few
students of legal anthropology (see above, no. 11), and,
symptomatically, it is not one of the subjects in the competitive
examination (‘agrégation’) for admission to the legal profession.
Yet the rule is well known: ‘a discipline which is not well taught
will die of an infantile disorder or in the onset of old age’. Legal
anthropology will no doubt be judged by its yield - provided it
can be harvested.
 100 Legal Anthropology
In Holland the discipline has benefited from a long tradition. In
the 1970s, courses expanded and the discipline is currently taught
in eight universities (mainly by F. Strijbosch, J. Griffith, F. von
Benda-Beckmann, A. Shreiner, E. Baerend, J. M. Otto and E.
Van Rouveroy van Nieuvaal). The subject is highly regarded in
faculties of law since its exponents are jurists rather than non-spe­
cialists [littéraires]. The discipline has benefited from the conver­
gence of the sociology of law and legal anthropology (Griffith
even predicts that the two disciplines will merge in the 1990s),
because anthropological research has yielded more results than
sociological research. Finally, Dutch legal anthropologists contin­
ue to be very active in a number of areas, in Indonesia and Africa,
and their publications enjoy a good reputation internationally. Is
the paradise of legal anthropology Dutch?
In the United Kingdom the situation is clearly less favourable.
Orthodox jurists do not betray any interest in legal anthropology,
even though they admit that law cannot be reduced to state law.
Legal anthropologists (principally F. G. Snyder at Warwick, S.
Roberts at the London School of Economics and P. Fitzpatrick at
the University of Kent) work in comparative isolation. Their work
is generally concerned less with traditional law than with accultur­
ation and development, and non-state forms of justice.
To sum up, if legal anthropology varies from country to country,
with the best practice to be found in North America and Holland,
it can be characterized by several general traits.
As regards the geographical distribution of the main currents of
thought, the classic distinction between continental and English-
speaking countries is less accentuated. However, English-speaking
authors still favour monographs and study the settlement of dis­
putes, whereas French writers (particularly the LAJP workers) are
more concerned with the search for global explanations and con­
sider legal anthropology as a form of ‘meta-science’. Germany
tends to occupy the middle ground; at the time of Post and
Kohler, workers had also followed systematic themes, to be aban­
doned on the collapse of evolutionism.
On the definition of law, especially in France, there has been a
change in emphasis. The LAJP workers are concerned less with
arriving at universal definitions than with asking more appropriate
questions; their point of departure is that the frontiers of law fluc­
tuate in all societies, as a function of the discourse, practices and
The Development o f Legal Anthropology 101
beliefs which are held to be essential to their continued existence,
and which are protected by ‘juridicization’ or codification.
Thematically we are confronted with two major lines of
inquiry: in the first, all research is seen through the perspective of
legal pluralism, and in both traditional and modem societies, the
role of state-based law is qualified; in the second, there is particu­
lar interest in diachronic factors, as a reaction to their negligible
role in functionalism, the role of historical change is stressed, and
legal acculturation has become well established as a theme.
As regards the range of societies studied, decolonization and
acculturation have contributed to a shift in the focus of attention
to modem Western societies. If this has resulted in a redefinition
of difference or ‘otherness’, it is of capital importance for the
future of the discipline. If results match aspirations this new
direction will give credibility to the discipline in the eyes of tradi­
tional jurists. Further, the new outlook corresponds with the aims
of anthropological research; that is, to establish a science of
humankind through the study of all societies.
Finally, globally, we may envisage two paths of development for
legal anthropology, which, though not contradictory, prompt par­
ticular questions.
Either, in keeping with the current trend amongst English-
speaking workers, the interest will be above all in ‘living law’: in
such manifestations of law as may or may not be linked to the
framework of the state, to be observed in the maximum number
of societies and following the principles of legal pluralism.
Or, following the French model (initiated by the ‘juristique’
project, a new science attempting to distinguish ‘laws from laws’,
dear to H. Lévy-Bruhl; see E. Le Roy, ‘Jurististique et anthro­
pologie: un pari sur l’avenir’, BLAJP, 6 (1983): 119-43), legal
anthropology takes up, albeit within a different framework, the
work of nineteenth-century writers in attempting to discover the
laws that govern the operation of societies through systematic
cross-cultural comparisons. Methods derived from a systems
approach are employed, and the structuralism of Claude Lévi-
Strauss is indispensable. The author inclines towards this latter
approach; its generalizing stance appears closer to the anthropo­
logical ideal. Yet we cannot disguise the fact that, given the com­
plexity of the questions under study and the methodologies to be
used, this approach is the least likely to achieve results. The speci­
 102 Legal Anthropology
ficity of the first approach provides for more achievable and
speedier results. Of course the worst attitude would be to favour
one approach to the exclusion of the other.
For, on reflection, it is in no one’s interest that legal anthropology
should fail: not, of course, that of legal anthropologists; nor tradi­
tional jurists (our discipline is not directed against traditional
jurists, but encourages them to search other horizons so that they
better understand their own legal systems); nor, finally, specialists
in social and cultural anthropology who, for too long, have
ignored legal phenomena which the societies concerned consider
to be vital, and which provide an understanding of the operation
of these societies.
The student, who might be put off by the multiplicity of theo­
ries in legal anthropology, should understand that plurality in the
perception of problems, and the plurality of methodologies used
to furnish answers, does not reveal an irreducibility of viewpoints;
even less does it show incoherence in reasoning. On the contrary
we are confronted with the very conditions in which scientific
knowledge progresses; each theory partially illuminates reality.
Since the beginnings of the discipline there has been incontestable
progress in the questions and answers provided by it. We have
more to fear from uniformity than diversity. Only codified law
purports to have the last word.
2
The Fields o f Legal Anthropology
If, once measurements have been taken ... the judge cannot
clearly identify the limits [of the land], he is allowed to set-
tle the matter by adjudication.
(Digest, 10, 1, Finium regundorum, 2, 1)
There are some concepts which are easy to interpret in everyday
life, but whose meaning suddenly becomes elusive when submit­
ted to intellectual inquiry. Law is a case in point. Law, whilst
amenable to simplistic definitions, often successfully resists more
serious attempts at capture, escaping from the areas where we try
to contain it. The ease with which our efforts are foiled is in dis­
tinct contrast to the rigour with which we confront it. We must
concede that law is not as easily defined as chemistry or medicine
and that, despite its appearance, it belongs to that subtle universe
inhabited by other beings as insubstantial as beauty, goodness, or
the sacred. For defining law also means having a view about the
world and humankind, power and society; fortunately for us we
are free to choose between several different interpretations. This
is why we will not make a promise that we cannot keep, namely to
give a simple and unitary definition of law. However, since it
would hardly be considered proper to discuss a discipline without
revealing its nature, we must nevertheless, like the Ulpian judge,
mark out its territory. This territory is set in a landscape, that of
anthropology. In other words we propose to set aside purely spec­
ulative lines of inquiry and concentrate on legal behaviour as
experienced by human societies in all their diversity, and attempt
an explanation of how a cross-cultural approach can inform us
about the very idea of law, trusting that, in allowing law full rein,
we will be able to assess its performance better.
 104 Legal Anthropology
64 Legal ethnography, ethnology and anthropology
Fortunately the second word in the term ‘legal anthropology’ is
easier to understand, particularly if considered alongside its
neighbours, ethnography and ethnology. These three terms first
made their appearance in about 1800' and formed part of the
movement in which humankind became the object of scientific
study. At present they represent three stages in the process of
understanding law. Legal ethnography is concerned with the col­
lection and description of evidence of a legal character in the
three areas of discourse - behaviour, value systems and beliefs -
within a given society.2 Legal ethnology is concerned with the
interrelations between these three areas, and their combined
effect on the general operation of the society in question. Legal
anthropology attempts, in a final act of synthesis, to achieve a gen­
eral classification of human society in the field of law, by compar­
ing the legal systems of all the societies which can be observed. In
practice it is unusual for workers to limit themselves to the first
area, but much experience is required to undertake the third; con­
sequently, activity centres on the second area. But here we are
concerned with degrees of generalization and not a definition of
law. Our first aim is to place law in a historical context. The sec­
ond, and the most complex, is concerned with its consistency and
contours. The third consists of briefly describing the most appro­
priate legal approaches for a cross-cultural view of law. A section
will be devoted to each of these approaches.
I THE TEMPORAL DIMENSION OF LAW
Does historical change determine the very existence of law, and is
it capable of radically modifying its nature? These two questions
lead to further ones: whether it is possible to date the emergence
of law (assuming this is a useful line of inquiry), and whether the
modem period, bom of the industrial revolution, has created a
major fault-line in the history of law in human society.
A: The intensification of law
Law emerges with the beginnings of social existence, in processes
whose origins will probably always remain hidden. Whilst we may
seek in vain to date precisely the birth or emergence of law, we
may, on the other hand, gain glimpses of its intensification, where
The Fields o f Legal Anthropology 105
societies have attempted to define more clearly the norms and
behaviour which govern a social body in the throes of increasing
complexity. For, although it is reasonable to conclude that there
has always been a legal domain, law has traversed a number of
episodes and locales in the course of human history (were we to
restrict the intensification of law to simple diachrony we would
fall into the trap of unilinear evolutionism). This development
can be observed by going back through time, following the thread
of the various theories of the history of law.
65 The development o f law in the historical period
A first step in dating the intensification of law consists in deci­
phering its origins in the emergence of the Western city-state,
where the Roman term ius (itself derived from the Indo-European
yous) is inextricably bound up with the idea of constraint (inhere,
‘to order’) exercised within society. As L.-R. Ménager has stated,
the authority of law, in evidence as much in customs as in laws,
does not necessarily emerge at the stage when the state appears:
both legislative and judiciary authority in democratic Athens
effectively resided in popular institutions, and not in a state
bureaucracy. However, this is exceptional: in most cases law is
controlled by a dominant group. The development of law is thus
to be associated with increasing complexity and social stratifica­
tion. The appearance of the city-state acted as a stimulus to law.
This can be explained in the cumulative effect of three processes:
the increase in population density which caused a concurrent
development in craft and commercial activities; a marked increase
in the extent of social stratification due to the widening gap and
diversification in economic status; a widespread increase in popu­
lation caused by economic development. This finally gave rise to
a larger and more differentiated society, requiring a more elabo­
rate legal system to satisfy the growing needs of governing bodies,
and the rapid increases in both the causes and levels of conflict
between individuals and groups. L.-R. Ménager emphasizes that
the creation of law must be associated with this process. The term
lex evokes the idea of choice (legere), a choice of individuals who
have the authority to exercise legislative and legal power. This
becomes one of the established ways in which complex societies
are controlled. Thus specialization amongst judges and legislators
is an important trait of modem society.
106 Legal Anthropology
But is the appearance of the city synonymous, chronologically,
with the appearance of law? Our understanding of prehistoric
societies would tend to contradict this statement.
66 The intensification o f law in prehistoric societies
The further back we reach into the past, the more unclear it
becomes, due to a dearth of sources, and the more we must rely
on the evidence of archaeology. One fact, however, does emerge:
when societies enter what we refer to as the historical period,
most of the institutions which we would describe as legal are
already in place - marriage alliance systems, the management of
resources and the attribution of rights to certain groups and indi­
viduals over the movement and ownership of goods. Thus law has
a prehistory, about which we may formulate a number of
hypotheses.
The first, which deals with an early era, concerns the increasing
complexity of the neolithic period (about 9000 years before the
present, but with considerable chronological variation, from area
to area). During this period there was an increase in productive
capacity linked to sedentary setdement and agriculture; human
communities became larger and social differentiation increased.
In general, social differentiation, as reflected in burial goods,
underlined the status of military chiefs, whose death could be
accompanied by human sacrifices (as exemplified by the presence
of human remains near their tombs), and the appearance of small
theocratic kingdoms, the germs of larger states. Africa and
Greece, albeit at a different pace, went through this pattern of
evolution, in the course of which law developed and became more
specialized.
Meanwhile, a decade of work carried out on prehistoric hunter-
gatherer societies allows the attribution of an earlier date to the
increasing complexity of social and legal systems.3
Until recently, these societies were believed to be small-scale
nomadic human groups. This view stemmed from comparisons
made between prehistoric hunter-gatherers and those of the mod­
ern period, for whom we have ethnographic data and who do, in
fact, present these characteristics. Present-day hunter-gatherers
are not necessarily exact copies of their prehistoric forebears. In
fertile areas the latter were replaced by agriculturalists and in
harsher environments they adapted themselves to their surround­
The Fields o f Legal Anthropology 107
ings. It is only at this stage that hunter-gatherers first appear in
the ethnographic record. In other words, the hunter-gatherers of
prehistory may have undergone processes of increasing complexi­
ty and the development of law, which had up to now only been
associated with societies of the neolithic ‘revolution*. This, at
least, is what the results of archaeological research carried out in
the last twenty years in North America, Europe and Australia
suggest.
If we continue, as we have done so far, to define social com­
plexity as the increase in the number of groups making up a soci­
ety, and the degree of their differentiation and specialization, it
seems certain that these processes were set in motion in many
areas at the beginning of the upper palaeolithic (about 40,000
years before the present). The three cumulative factors which we
have already identified with the birth of the Western city were in
evidence at this time.
First, there was a reduction in the mobility of the population,
synonymous with the beginnings of sedentarization, caused either
by environmental factors, or by the presence of neighbouring
groups with whom fusion was undesirable or impossible.
Second, there was an increase in population. We do not as yet
know if this was caused by external factors (climatic change,
external influences) or internal factors (a change in social relations
due to increased competition between social groupings, giving rise
to a increasing production and demographic expansion).
Third, there was an increase in the range of resources utilized,
mainly as a result of increases in production, which became vital
in any area where there was an increase in population density.
The influence of these three factors caused a marked increase
in social and political differentiation: first, a rise in production led
to a more pronounced division of labour between social groups;
second, the examination of grave goods establishes that some
individuals were decision-makers and were given greater authori­
ty; third, and most importantly, the increase in complexity itself
caused a rise in the number of disputes, with a corresponding
need to settle disputes through an institutional framework. Here
we can detect the existence of law (whether in the form of norms
or, more probably, processes). In effect, these societies were both
larger and more mobile than before, resulting in greater tension
(prior to this, archaeological evidence of battles is virtually non-
 108 Legal Anthropology
existent), because conflict could no longer be resolved by fission
(geographical dispersion of subgroups), avoidance (interruption
of relations between parties involved in disputes), or emigration
(the most common solution practised by modern hunter-gather­
ers, who do not experience these increases in complexity). Also,
since they were more divided and less egalitarian, there were
more causes for conflict within these societies. This resulted in
the need to find institutional means of settling conflicts; thus a
further step in the creation of law was taken.
However, even if we return several thousand years to the
neolithic period, we are still concerned with comparatively recent
times in relation to the span of the human past, which reaches
back several million years: thus revealing the limited extent of our
knowledge. However, we are on firmer ground when we examine
the other end of the human time-scale: the modem horizon.
B: T h e m odern horizon
Does the modem horizon represent the cut-off point of legal
anthropology? In other words, should legal anthropology limit
itself, as it has done until recently, to the study of ‘exotic’ and tra­
ditional societies, leaving modem societies to legal sociology? We
shall see that one of the ways of answering this question consists
in examining the differences between modem and traditional
societies.
67 Distinguishing between traditional and modern societies
The diachronic continuum, although not totally inappropriate,
only provides an approximation, to the extent that unilinear evo­
lution is no longer a tenable position. Modem societies are not
necessarily the most recent societies: Augustinian Rome was
urbanized, centralized and state-based, and used currency; in the
towns, at least, family structure resembled the nuclear family pat­
tern more than it did the extended family, although this was nine
centuries before the advent of feudal societies, whose characteris­
tics are the exact opposite. We ought therefore to concentrate on
criteria pertaining to structure, and the attendant values and sys­
tems of belief. Before doing so, three points need to be made.
First, we are faced not with a clear division between traditional
and modern societies, but with a broad spectrum, containing a
The Fields o f Legal Anthropology 109
number of intermediate forms: some ‘exotic’ societies are no
strangers to law, and the concentration of power in one person,
yet have little in common with Western industrialized societies.
Second, geographical distribution is no more a determining factor
than was time: the empires that existed in Africa, and Western
feudalism too, all display parallels with societies studied by
anthropologists. Finally, we must avoid interpreting the term
‘complexity’ in its everyday usage. A society which is less com­
plex, that is to say, less differentiated and specialized, is neither
simpler nor more rudimentary than a society with more devel­
oped sociopolitical stratification; it is simply based on different
premises. There is thus little purpose in resurrecting the obsolete
distinction between primitive (traditional) societies and civilized
(modern) societies, graded in degrees of complexity.
Once we have taken these precautions, we can list the criteria
of variability that exist in traditional societies, concentrating on
those criteria which possess a legal dimension.
In the economic sphere, traditional societies, like the former
peasant societies of the West, are to some extent self-sufficient,
though certain forms of commerce based on exchange or even
monetary tokens are not unknown. Moreover, some theorists,
such as Marshall Sahlins and P. Clastres, maintain that the non­
maximalization of production processes, by which traditional
societies are generally characterized, does not stem from an
inability to increase production but from a cultural choice
designed to avoid the appearance of too marked social and politi­
cal divisions.
For though all societies are divided, the degree of division is
less marked in traditional societies than in modem ones; above
all, the perception of this division is different. To begin with, it is
seen as beneficial and, unlike in modem societies, is accepted
rather than decried. Also, interaction between groups is perceived
as favouring complementarity rather than competition. Political
authority is never absent, even in the least differentiated societies;
thus amongst the Inuit there are leaders (ishumatar, ‘he who
thinks a lot’) whose qualities are founded on hunting ability, ora-
torial powers, generosity, etc.4 But these powers are in general
limited, non-hereditary, conditional, and founded more on pres­
tige and persuasion than coercion. Political organization does not
exhibit such minimal forms of differentiation in all traditional
 110 Legal Anthropology
societies: it can take the form of increasing degrees of specializa­
tion. Consequently, we are faced with the problem of the
appearance of what we term the state, which also exists in ‘exotic’
societies.
Clastres believes that the state emerges where there is an imbal­
ance of power, resulting in the existence of the dominant and the
dominated. This is unknown in traditional societies where the
power of leaders is always precarious and controlled by society.5
The state and law, in the Western tradition, are thus based on
coercion, and are non-universal. J.-W. Lapierre believes that coer­
cion is not a determining factor in the creation of the state,
because, in contrast with Clastres, he believes that political coer­
cion, with a considerable degree of variation, exists in all societies.
He identifies the state with specialized instruments of govern­
ment.6 The state begins to appear in those societies where politi­
cal power is distributed amongst councils or is held by a hierarchy
of chiefs. It emerges more fully in societies where the power-bro­
kers are the ruler’s clients (as was the case with the French
monarchy in the closing century of the middle ages, and with cer­
tain African kingdoms), and also in societies where power is exer­
cised through a network of subordinated administrative relations
(as in the Inca empire of Cuzco, and contemporary industrial
societies). Our own view is that there can be no universally recog­
nized frontiers to regulatory functions which we may describe as
possessing a legal dimension. From the moment when - and this
varies through time and space - societies choose to extend the
domain of law and make it explicit through norms, whether codi­
fied or not, we may note the concomitant appearance of clearly
differentiated forms of political authority, which can be called
states. Herein lies, in our view, the real difference between tradi­
tional and modem societies. This difference consists of a choice
between several forms of law, and the means by which these
forms are articulated. In other words, though all societies possess
political power, which relies, in all probability everywhere, on
various forms of coercion (psychological pressure, physical con­
straint, etc.), the state is present only in some of them. Moreover,
though law exists in all societies, the emergence of the state, com­
mon in modem societies, is invariably accompanied by both an
extension of the field of law in social control, and changes in its
composition and sanctions. Thus whilst, in modem societies, law
The Fields o f Legal Anthropology 111
can still be observed in behaviour and customs (as in traditional
societies), its official incorporation within the state takes the form
of explicit written rales, often involving codification. Equally, the
settlement of disputes is handled more and more by recourse to
judgement.
Finally, these variations in human experience of law introduced
by the state are also reflected in values and beliefs. As their name
implies, traditional societies put more faith in the past than in the
idea of change. Change is a feature of modem societies. Thus tra­
ditional societies incline towards custom, based on repetition and
ancient usage, whereas modem societies are based on law, the
instrument of the voluntarism of the state. However, reticence in
the face of change does not mean that change does not occur: tra­
ditional societies do also change, but generally at a slower rate
than modem societies. This is confirmed, in the legal domain, by
the fact that customs are not immutable (see the medieval adage
‘Customs change’ [Coutume se remue]).
These various observations lead us to conclude that though tra­
ditional and modem societies represent contrasting choices and
attitudes towards the world, these contrasts do not constitute an
unbridgable divide. Each society rearranges the elements that are
common to all societies, favouring some in relation to others (a
more extensive or less extensive penetration by law of social exis­
tence; the extended family or the nuclear family; individual or
collective ownership; heightened individual status and egalitarian
tendencies; penalties and vengeance; etc.). The nature of these
distinctions, which are of essence rather than of structure, allows
us to conclude that our knowledge need not be compartmental­
ized. In other words, even though legal anthropology was first
applied to ‘exotic’ societies, it may now be extended to cover
modem societies as well. Certain strictures remain.
68 The wider perspective o f legal anthropology
Whilst the historical factor of decolonization looms large in the
explanation of why anthropologists have focused their attention
on European societies, there are other underlying reasons which
have a bearing on the very nature of the discipline.
Auguste Comte, in his work Philosophie positive (1831-42),
assigned sociology to the study of industrialized societies and
anthropology to the study of traditional societies; the latter were
112 Legal Anthropology
considered at the time to be a reflection of our distant past. Thus
Comte made a diachronic distinction between these two kinds of
society, whereas the distinction had formerly been geographical.
Today a third distinction would appear more appropriate than the
preceding two. Comparing societies means coming to terms with
their inherent composition and their social and legal organization;
it also means paying more attention to systems than the particular
elements in their make-up. Thus we may readily observe that
within the classification of dispute settlement procedures, media­
tion is as much a feature of acephelous societies as it is of our
own. But this does not warrant the assumption that both kinds of
society possess the same form of dispute settlement, because what
must be analysed is the role of mediation in the global workings
of each society, in particular in relation to other ways of settling
disputes.
Furthermore, if the comparative method should avoid stressing
the similarities of societies to the detriment of dissimilarities,
there should equally be no chasm between traditional and mod­
em societies, effectively excluding the latter from the considera­
tion of anthropology. However, if resemblances undeniably exist
between these societies, especially in the domain of law, their
basis remains to be described. According to G. Dumézil there can
be only four main causes behind these similarities: chance;
human nature; heritage; and borrowing. When J. Carbonnier
described the reasons for applying legal ethnology to modem
societies, his analysis partially echoed that of Dumézil. Either the
likeness is due to cultural survivals from an earlier period, or the
resemblance between legal solutions stems from a similarity in the
circumstances which gave rise to them, the universality of human
nature echoing the same concerns. These two kinds of explana­
tion are complementary, but Carbonnier is correct in emphasizing
that legal pluralism renders their operation more complex: each
subgroup, according to its place in society, can produce or apply
a form of law, which tends towards either modem or traditional
models. In our opinion reliance on the operation of chance would
appear to be, in most cases, a sign of mental laziness. However,
the existence of the categories of borrowing or heritage is, in
contrast, only too evident. But these factors should really be
understood in terms of their role as components of a system: they
are the means to an end in society (or the means imposed on it: as
The Fields o f Legal Anthropology 113
with the introduction of the Civil Code in countries under the
Napoleonic Empire), and not the end itself. Finally, invoking
human nature would appear to be a last resort (though we may
concede that this can be a philosophical position, akin to that of
structuralism). For all that, this unity should not be mistaken for
uniformity, and we should concentrate our efforts on finding a
pattern of variability which can embrace modem as well as tradi­
tional societies.
As M. Alliot and G. Lenclud have both stated, the originality of
anthropological knowledge is not confined to the geographical
classification of its subject-matter. Furthermore, the well-rehearsed
criteria of the state and writing do not in our view constitute the
frontiers of anthropology (neither social anthropology nor legal
anthropology). These are characteristics whose presence or
absence indicates, depending on the society, different levels of
complexity and the differentiation and penetration of law.
However, neither the state nor writing contains the essence of
law: law can exist with or without them, and consequently legal
anthropology does not retire when they appear. Some workers
have already elaborated theories which tend towards unification.
A case in point is the concept of a ‘reasonable person’ elaborated
by Max Gluckman: just as our legal systems appeal to the ‘reason­
ableness’ of norms, traditional societies, in the settling of disputes,
also seek appropriate behaviour in suggesting what a ‘reasonable
man’ should do in a particular case, in his capacity of chief,
father, husband, etc. Leopold Pospisil sees a further cross-cultural
concept in the imperative element which is contained, for him, in
all manifestations of law. He predicates the intervention of legal
authority (in the person of a leader or tribal chief as much as a
modern legislator or judge). Theorists of legal pluralism insist for
their part that all societies are plural, irrespective of whether they
may be subjectively aware of it.
In fact the legal anthropology of modem societies is still at the
stage of baby talk. In our view two problem areas will soon mani­
fest themselves in this exploratory work. First, there is a natural
tendency, understandable in the early stages, but which we will
have to overcome, to concentrate on legal phenomena which are
marginal in our own societies (the legal status of minors, non-
contentious settlement of disputes, oath-swearing). Thus we must
avoid the ‘exotic’ elements of our own legal experience in the
TT
114 Legal Anthropology
hope of one day producing an anthropological analysis of law in
employment, insurance, or inheritance. Second, it is by no means
easier to observe one’s own society. Here another danger rears its
head, that of considering to be ‘natural’, rules or practices which
appear so only because we are used to them.
However, if legal anthropology can clear these obstacles, it has
incontestable advantages over other disciplines in the descriptions
it can make of modem societies. On the one hand, thanks to
experience gained in the ‘exotic’ field, it possesses terms of refer­
ence which allow it to make broader comparisons. On the other
hand, whilst anthropology, like sociology, examines both dis­
course and practice, legal anthropology accords more importance
to values and systems of belief, an area often neglected by other
disciplines.
The diachronic factor may form the dividing line between tra­
ditional and modem societies, but it need not inhibit the
development of legal anthropology. A second line of inquiry now
seems appropriate: to what extent does legal anthropology allow
us to acquire cross-cultural perspectives of legal phenomena?
II THE FIELD OF LAW
In attempting to define the field of law, we need to proceed
beyond an analysis of the discourse and practices of law to the
perceptions and beliefs that underpin them. In any society law
must be considered as representing certain values and fulfilling
certain functions. In our opinion social scientists are mistaken if
they fail to consider what law represents for all those, and they
constitute the majority, who submit themselves to law.
Nevertheless, law cannot be defined solely in terms of the percep­
tions and beliefs that are identified with it: law extends beyond
people’s perception of it. Consequently we must turn to intellec­
tual constructs, to the realm of theory, to determine the nature of
law. In keeping with the methodology of anthropology we will
examine those theories which are based on a cross-cultural analy­
sis of legal phenomena.
A: Law, its perceptions and beliefs
The principles most frequently cited are the search for justice, the
preservation of social order and collective security.
The Fields o f Legal Anthropology 115
To take first the search for justice: as a guiding principle of law
this appears to be widespread amongst both modem and tradi­
tional societies.
69 Law and justice in traditional and modern societies
In traditional systems of belief law and justice are frequently
found in association, in the form of symbols. For the Nkomi
(Gabon), the concept of justice approaches our own symbol of
balance embodied in the scales of justice: what is straight is just,
what is leaning is unjust. For the Wolof (Senegal), justice is repre­
sented by a straight and well-defined path. Similarly the notions
of truth and justice are often associated. In Cameroon, what is
just must also be true: falsehoods lead to bad decisions which, in
their turn, create evil; the realm of truth extends beyond an accu­
rate description of events to include a spiritual dimension. Truth
is in the custody of the ancestors who must be worshipped if truth
and justice are to be discerned. Amongst the Wolof, studied by E.
Le Roy, the lawgiver must examine all the facts and make an
appraisal that is just, in line with what he would consider the
‘normal’ behaviour of a man of good birth.
However, these perceptions and beliefs, associating law with a
notion of justice, do not exactly correspond with those of modem
societies. To begin with, as C. Atias has underlined, the modem
jurist may be willing to associate law and justice, but less willing
to identify law with truth; positivists and legal theorists maintain a
virtual silence on the subject of truth. Modem law does not
regard truth as a value of fundamental importance, since the main
thrust of law is to protect citizens against actions which threaten
their rights. Also, as we well know, traditional societies tend to
determine what is just by referring to a model of behaviour rather
than to a prevailing norm. In addition, modem societies closely
associate the principle of justice with coercive sanction, to which
our symbols of sword and scales so eloquently testify. The tradi­
tional jurist is concerned more with discovering and instilling
truth and justice than with using sanctions, and such sanctions
as are in fact exercised assume the form of non-jurisdictional
procedures.
In modem societies, the quest for justice is very often assigned
to law and legitimates the use of legal sanctions. Problems arise
from the fact that a tension can exist between two different cate-
TT
116 Legal Anthropology
gories of justice, a distinction elaborated by Aristotle: justice will
be either commutative (it will apportion decisions with a mathe­
matical equality) or distributive (it will, to ensure its best possible
distribution in accordance With individual capacity, formulate rul­
ings which are, objectively, characterized by inequality). Human
societies have, with a considerable degree of variation, opted for
the second solution. These various beliefs and perceptions identi­
fying law with justice are consistent with the idea of official law.
However, we can, like J. Carbonnier, picture law in darker
colours. Is it not the case that the function of law is not in effect
the search for good, truth, or what is just, but a dramatic recogni­
tion of evil, of which the history of humanity furnishes us inex­
orable evidence? The author concurs with Carbonnier when he
writes:
our corrupt world, if allowed to reveal its true nature, would
break up and roll to the bottom of the abyss, were it not bound
by laws. It is in this context that law can be seen as an evil: not
because it is itself evil or causes evil, but because it owes its
existence to evil. Law is an indicator of sin and there can be no
doubt that the proliferation of legislation which we are present­
ly witnessing marks the unleashing of demons.7
Even if we choose to continue to identify law with good, its
relationship with justice is no less problematic. On the one hand
it gives us no guidance as to content: as we have seen, justice
takes several forms; moreover, the idea of justice varies from cul­
ture to culture. This would lead us to suppose that the association
of law with values of a moral order points in essence to the
changeable nature of law, and that it would be more appropriate
to refer to ‘juridicization’ [the process by which something
becomes jural: TN] than to law. To untie this knot, positivists
have opted for a solution which is in reality no more than an
escape route: law has nothing to do with what ‘ought’ to be, it has
to do with legal discourse. This is a very unsatisfactory solution
since it confuses a definition of law with a definition of the
sources of law. On the other hand, as we will see, this is not the
only way law is perceived: it converges with, and sometimes
opposes, another perception in which law is the guardian of order.
Finally, and perhaps most important, the study of non-European
societies clearly demonstrates, as M. Alliot has commented, that
The Fields o f Legal Anthropology 117
the search for justice forms but one of the modalities of law, if,
that is, we understand law as being the control exercised over acts
and values considered essential by a society. Thus the Inuit of
Greenland, when settling certain types of dispute, engage in
singing competitions, where the winner is not necessarily the
injured party, but the singer who has most convincingly ridiculed
his opponent8; in many societies the murderer takes the victim’s
place within the victim’s family, looking after the wife and chil­
dren. In this case law is not primarily concerned with determining
what is is just, or who is right or wrong, but with reconciling
adversaries, or their respective groups, in the avoidance of ten­
sions whose intensity could threaten society. The same could be
said for rules which provide for the periodic redistribution of
wealth (the liturgies performed in ancient Greece, the potlatches
of traditional societies, and even, in our own societies, certain
taxes, such as those on income or capital which are strongly redis­
tributive in character). The person who must contribute in this
way, or on whose estate there is a levy, has not necessarily injured
his or her neighbours. Once again these impositions are consid­
ered necessary to avoid the kindling of strong social tensions.
This is why law is often considered as the guarantor of order and
security, quite apart from considerations about what is just or
true.
70 Law and the maintenance of order in traditional and modem
societies
For the advocates of processual analysis, such as P. J. Bohannan,
law is in the main resorted to in the context of settling disputes,
or in other words in the re-establishment of order. This may or
may not take place through procedures whose role is to make a
ruling on the joint liability of the parties concerned (as in our own
legal system) or it may restrict itself to re-establishing social
peace. An examination of the vocabulary of the Labrador Inuit
demonstrates that for them the function of law is to restore har­
mony, any excessive or improper behaviour being interpreted by
those aggrieved by such behaviour as an offence disturbing the
social order (the terms piujuk and piunngituk, which are today
used to describe what is ‘good’ or ‘bad’, were in the past synony­
mous with ‘that which exists’ and ‘that which does not exist’,
semantic proof that the Inuit were conscious of how bad behav-
 118 Legal Anthropology
iour could threaten social life). Social equilibrium is more impor­
tant than apportioning liability: no judgement is made on the
intrinsic worth of individuals and their actions, whether sanctions
be applied to them or not (the word that we translate as ‘offence’,
or even ‘sin’, as missionaries did, approximates rather to ‘incor­
rect’, ‘uncomfortable’).
In our own societies law is also frequently identified with social
order, but it is qualified by whether the writer approves or disap­
proves of the prevailing order in the society in question. Thus, in
the first instance, law is conceived of as the guarantor of the citi­
zen’s security, mediated by a shared respect for the social order,
yet may quite feasibly exist in opposition to another perception of
law based on justice. (The protection of commercial transactions
demands that they are concluded - especially where movables are
concerned - even if there is a considerable discrepancy between
the price of an item and its value.) In the second case, law can be
considered as legitimating the domination of power elites, acting
as a buttress to a social order which is open to criticism. For M.
Miaille, the abstract and impersonal tenets of law in our societies
are linked with a capitalist mode of production, in so far as this
encourages individualism. Irrespective of the way we define the
social order which underlies legal principles, we must stress that
these principles and beliefs do not seem to have the same reper­
cussions from society to society.
In traditional societies the maintenance of order as the basis of
law does not necessarily result in an emphasis on sanctions: on
the contrary, as we have seen, law can be directed first and fore­
most towards social harmony; it can be a model, not necessarily
backed up by sanctions which, when they do exist, are often flexi­
ble.
In our own societies, the confidence vested in law, and particu­
larly the control the state exercises over law, has conspired to give
law a mandatory role which is expressed in the overweening influ­
ence of the sanction as a legal instrument: legal rules are those
social rules which are sanctioned by the recourse to organs of the
judiciary, or at least, as J. Carbonnier has stated, ‘susceptible’ to
be referred to the judiciary. This is because, in the majority of
cases, the resort to compulsion is not necessary for law to be
applied. Yet this description is perhaps not sufficient, because as
has been clearly stated by A. Weill and F. Terré, ‘a rule is not a
The Fields o f Legal Anthropology 119
legal rule because it has been sanctioned in a certain manner by a
group; a rule is sanctioned in this manner because it is a legal
rule’.9 In the author’s opinion, what the group determines as legal
is what it deems essential to the group’s coherence and mainte­
nance.
To attempt to define law through the use of sanctions is thus
an abuse of language. At best this attribute is only one of the
manifestations of law. On the one hand it is true that law
enshrines certain rules without accompanying them with sanc­
tions. On the other hand, in many traditional societies, sanctions
are flexible and can vary greatly depending on the circumstances
of the offence and the person of the offender. In addition, of
course, the exact form and nature of the sanctions will vary
between modem and traditional societies: in the former, matters
will be more frequently referred to the courts and there may be
physical constraint or financial distraint. Finally, certain very
recent developments reveal that law can also be based on the very
opposite of a sanction, namely a reward: in 1986 in several
French départements, the police handed over to certain motorists
wearing seatbelts a sum of money which corresponded to the fine
normally imposed for the offence of not wearing seatbelts; in
1987, the city of Lille applied this principle to motorists and the
contravention of parking regulations. These examples fit the prin­
ciples and beliefs of ‘law as a model’, encouraging a certain kind
of behaviour rather than repressing its breach. The criterion of
sanctions, poorly defined though it may be, has nevertheless held
considerable sway over legal thinking. Thus, for J. Poirier, ‘if an
offence is met with a legal sanction, we are dealing with a legal
rule; a legal sanction exists if its enforcement fulfils the following
criteria: automatic procedure, public awareness, appropriate
penalty’.10At the time of writing, the trend amongst legal anthro­
pologists is not to deny the role attached to sanctions in the legal
process, but to qualify that role.11 Yet this begs the question, why
do we obey laws?
71 Why do we obey laws?
Either we obey laws because, and this lends comfort to the propo­
nents of the importance of sanctions, we fear the sanctions that
would be applied consequent to their violation; or because, as
other writers, and they constitute a majority, say, obedience to
120 Legal Anthropology
laws stems from a variety of factors related to cultural pressure. R.
B. Seidman has drawn our attention to the relative importance
given to assessing the legal costs arising from an offence, some­
thing which varies from case to case (it is more likely to be taken
into account for a parking offence than a crime of passion). It is
also clear that the role of education is a determining one in the
interiorization of the mandatory nature of the rule of law. We
should link the influence of cultural traditions to this process of
interiorization. P. Legendre, adopting an approach to law that can
be described as both historical and psychoanalytical, attempts to
demonstrate that in the Western tradition, the purpose of law is
to invest certain personages, symbolically represented by God, or
the emperor, or the supreme pontiff, and, in our own times, the
legislator, with ‘the sanctity of power’. In exchange for submis­
sion to the law, the citizen will be gratified by the protection and
care of this personification of the law, and will in return have due
regard for the law. As a consequence of this mechanism law
becomes sacred: key legal texts become the Text, whose authority
is vested in the Lawgiver and whose rationality is enhanced by
jurists. It is clear that in this interpretation obedience to law is
founded on adherence rather than the threat of sanctions. Yet
obedience can be derived from other factors. In addressing him­
self to the mandatory nature of custom, J. Carbonnier has pro­
duced several hypotheses.12 On the one hand the mandatory
nature of custom may have extra-somatic causes: the individual
obeys the law because of family upbringing or because of a
marked tendency towards imitation in social behaviour (see ‘the
laws of imitation’ of Tarde); or there again the individual may be
strongly influenced by the cultural mythology of a given society.
On the other hand there may be internal, somatic causes: psycho­
analysis has demonstrated a psychological tendency towards repe­
tition, sometimes pathological in character, which appears to be
part of our psychic make-up; further, on a more conscious level,
custom may be generated by convention: rules are determined
and then obeyed because there is reciprocal advantage in obeying
rules and later benefiting from their protection (in this area
Carbonnier’s ideas resemble those of Malinowski). We can state,
however, that if obedience to laws is better explained by theories
that highlight cultural mechanisms than by legal sanction (as the
example of traditional societies would encourage us to believe), it
The Fields o f Legal Anthropology 121
is nevertheless impossible to exclude the latter, especially in our
own societies. We can also concur with J. Carbonnier that a single
theory cannot encompass the multitude of reasons why laws are
obeyed: some theories are more relevant than others, depending
on the circumstances.
In determining why laws are obeyed, we can also turn to the
perceptions and beliefs of those to whom the law is applied. An
opinion poll commissioned in 1987 in France amongst 16- to 19-
year-olds13 informs us that the stated reasons why these young
people obeyed laws were:
Because we were taught to do so: 30%
To avoid punishment: 40%
We must respect the law because it is just: 27%
No reply: 3%
This poll, based on a single age-group, can provide only an
incomplete picture. However, it is worth noting that if it is the
belief in law as sanction which is most commonly invoked, beliefs
which relate to justice and the influence of education are also fre­
quently cited. In traditional societies, it would appear that obedi­
ence to law is maintained by reference to a tradition (we behave
this way because this is how our ancestors behaved) and a respect
for the wishes of ancestors, coupled with supernatural forces
which can be invoked by a number of procedures.
These are the various ways in which those who are subject to
laws account for their obedience. However, belief and perceptions
give us only an incomplete set of answers. For this reason we
need once more to resort to legal theory if we are to shed light on
the question within a cross-cultural framework.
B: Cross-cultural theories of law
It should be stated at the outset that no cross-cultural theory of
law exists to which writers unanimously adhere. If any one of these
theories is preferred, at the end of the day this is a philosophical
preference, itself a variable entity. Yet, legal anthropological theo­
ries do at least have the merit of addressing the question of the
search for meaning in law through the examination of a wide range
of societies; in this sense, even if clothed in uncertainty, at least
these theories are, in the breadth of their scope, more objective.
122 Legal Anthropology
72 General typologies
If we take the view, as does the present study, that law is an
inherent attribute of all social existence, then there are three main
avenues of investigation.
The first avenue is mainly concerned with the form law takes:
as we have seen,14 law can then be identified with norms, or pro­
cedures for settling disputes.
The second avenue is concerned with investigating the content
of law, as revealed by the study either of norms or of legal behav­
iour, or - occupying the middle ground between these two posi­
tions - by the reconstruction of principles of law implicitly
present in decisions taken in settling disputes. Whichever method
is chosen, the results obtained can be analysed by using one of the
two following approaches. The first approach centres on the use
or non-use of ethnocentric criteria. Certain writers (A. R.
Radcliffe-Brown, G. Van den Steenhoven, F. J. Davis), who have,
in our view, taken the wrong road, define law according to criteria
derived from the Western tradition, an example being the system­
atic use of restraint and coercive sanctions. Other writers
(Bohannan) have taken the opposite view and seek to understand
law through traditional legal structures. The second approach
consists of formulating universal theories of law, based on the
observation of a wide range of societies, both traditional and
modem.
Finally, the third avenue consists in considering law less as a
concept - whether defined in terms of its form or its content -
and more as a phenomenon. Two tendencies can be discerned
within this general approach. The first, a maximalist one, holds
that it is impossible to arrive at a universally valid definition of
law. The second, more qualified (and shared by the Laboratoire
d’Anthropologie juridique, with whom the present author con­
curs), puts the emphasis less on law itself and more on the
processes of ‘juridicization’, deducing from ethnographic observa­
tion that the field of law is not a fixed entity and that its exact
extent and nature will depend on the core principles of each soci­
ety. We cannot examine each hypothesis in detail in these pages;
consequently a selection has been made, focusing on four recent
theories to which we will now turn.
The Fields o f Legal Anthropology 123
73 P. J. Bohannon’s theory o f double institutionalization
P. J. Bohannan begins by attempting to define law by reference to
the other prevailing rules of social control. He has identified two
kinds of institutions. A social institution consists of a group of peo­
ple organized around an objective corresponding with a set of val­
ues. The group will possess the means of accomplishing its
objective and the activity of the group is characterized by behav­
iour and events that are usually predictable. A legal institution con­
sists of a range of measures which can be invoked by the members
of a society to settle disputes and counter the abuse of rules elab­
orated by other social institutions. All societies are characterized
by both social and legal institutions. For P. J. Bohannan the tran­
sition from social institution to legal institution occurs through
the mechanism of ‘double institutionalization’. All institutions
(social or legal) generate customs; that is, mles of behaviour
which must be respected for institutions to function efficiently.
Institutions which are purely social in character are based on reci­
procity (whereas Malinowski had argued that law originated in
these institutions), and become legal through ‘reinstitutionaliza­
tion’: there is a transition from the purely social to the legal when
certain customs are selected by legal institutions to provide the
criteria according to which disputes which threaten the efficient
functioning of other social institutions can be settled (a good
example of such a mechanism is furnished by the way canon law
was accepted in France through its inclusion in royal statutes).
Bohannan’s theory is useful in so far as it provides us with a
glimpse of the variability of the field of law in all societies. Yet it
contains the inherent weakness of processual analysis: first, law
cannot be reduced to the settling of disputes; second, as J.-G.
Bellay has pointed out, the passage from the social to the legal is
in any case more complex. Passing judgement is an act which
does not confine itself to the ‘reinstitutionalization’ of certain cus­
toms. The influence of a judge, who is vested with powers of
interpretation including innovation, can transform these customs,
bringing them within the legal domain.
74 R. Verdier’s theory o f law and exchange
For R. Verdier, law is exchange rather than sanction; it consists of
‘a system of communication and exchange of values establishing
symbolic relationships between the members (individuals and
124 Legal Anthropology
groups) of the same polity or different polities, themselves belong­
ing to a wider political grouping’. The author brings his theory to
bear on two areas: status and contract, vengeance and punish­
ment.
Status and contract are both concerned with exchange, but in
different contexts. Contract creates bonds between individuals or
groups where the credit on the side of one party corresponds with
the debt on the side of the other. Status is characterized by the
situation of the individual in whose sole person the group to
which that individual belongs has vested a body of reciprocal
duties and obligations. Contrary to the position adopted by
Maine, contract does not necessarily follow status in the history of
human societies. Both kinds of relationship coexist but each soci­
ety gives prominence to one or the other, depending on whether
the individual is considered as a separate entity exercising inde­
pendent authority (predominance of contractual relations) or as
the member of several groups (predominance of status relation­
ships, which also exist in our societies: the status of civil servants,
for example).
If status and contract are peaceful modes of exchange,
vengeance and punishment are characterized more by hostility, and
yet a correlation can be found between these two kinds of
exchange. Vengeance is related to status: it consists of the con­
certed reaction on the part of a social group to the injury that has
been caused to one of its members by the member of another
group, and corresponds to an obligation of ‘restitution’ of the
offence. Punishment corresponds with contract to the extent that
the punishment is meted out to the individual rather than to the
group to which that individual belongs, and testifies to the desire
of the whole of that society in distancing itself from the person
punished. Retribution and punishment are not chronologically
successive methods of settling disputes. Here again all societies
can have recourse to either punishment or vengeance, but choose
one or the other depending on the prevailing beliefs regarding the
individual.
Verdier’s approach is very helpful. On the one hand it enables
us to understand more fully why sanctions have always been a cri­
terion of law; in fact the question of what sanction is applied to is
more important than the sanction itself, and we can state that
according to this theory, the purview of law, identified with cer­
The Fields o f Legal Anthropology 125
tain exchange mechanisms, covers the fundamental ties which
structure relationships between individuals and groups. On the
other hand, Verdier’s analysis indicts as false the evolutionism
often present in the classic theories of law, and confirms that if
modern and traditional societies differ, it is not so much in the
make-up of the individual elements of their social and legal sys­
tems as in the way these elements combine with each other.
75 PospisiVs theory of universal principles o f law
Leopold Pospisil is an advocate of theories of legal pluralism and
the author of a theory which defines law as a universal phenome­
non.15 He identifies several criteria, common to all societies:
authority; the intention of universal application; ‘obligatio’; sanc­
tions.
Authority, a legal ruling should be invested with the authority
necessary for its application. Either the parties concerned agree to
execute decisions themselves, or it may prove necessary to con­
strain them, physically or psychologically. The individual or
group which invokes this constraint constitutes legal authority.
The intention of universal application: to ensure legality, a deci­
sion must, whichever authority implements it, become applicable
thereafter to all cases similar or identical in nature (a characteris­
tic which excludes political decisions). Two further points must
be made. First, it is sufficient for this characteristic to reside in an
intention on the part of the legal authority, without prejudicing
the degree to which it will be subsequently applied: in pracdce,
disputes are not always settled in conformity with previous rul­
ings. Second, legal rulings differ from custom in that they are not
necessarily based on precedent. This is one of the main principles
of law in our own societies; in traditional societies many examples
demonstrate that innovation also occurs and custom need not
always be invoked.
Obligatio: a legal ruling must create ties between parties in a
dispute: it must simultaneously define the rights of one party and
the obligations of the second party which is recognized as being
the cause of the injury.
Sanctions: classic theories of law give a privileged status to sanc­
tions, and generally link them to the potential use of physical
force (cf. our own expression ‘physical restraint’) or material force
(in our societies, this sanction usually involves distraint of the
 126 Legal Anthropology
material wealth of the party who has caused the injury). Sanctions
of a psychological nature also exist and can be used to compel
respect for a legal ruling (reprimand, blame, derision, ostracism,
singing competitions, etc.). Sanctions, or the threat of sanctions,
even if they assume very different forms, are essential if forms of
social control are to acquire the status of law. Further, a sanction
will be all the more effective if it is final, predictable and immedi­
ate.
Attention should be drawn to one last point in Pospisil’s theo­
ry. For Pospisil there are two forms of law in all societies: authori­
tarian; and customary.
Authoritarian law is not interiorized by the majority of the
members of the group, but is applied by a minority that occupies
a position of dominance. In this case, the majority of people obey
mainly through fear of punishment (as in the decrees of dictatori­
al political regimes).
Customary law: custom is not necessarily law; it must be vested
with legal authority before it can become law. When this process
takes place, obedience to customary law is interiorized and stems
less from external pressures (sanctions emanating from the state)
than internal convictions, often of a psychological nature.
Although vital in the confirmation of legal status, the intervention
of authority should only confirm the opinion of the majority of
the group (thus in Pospisil’s terminology, the law legalizing abor­
tion is customary law).
These two categories of law are not hermetically sealed.
Changes in a legal system can in the main be explained by the
transfer of a norm or mode of behaviour from one category to the
other. A system of law which is in origin authoritarian can be
gradually accepted by a growing proportion of the population,
and become customary law16; if it is repealed by legal authority it
can only continue to exist as custom. Conversely, a custom may
become customary law and in time no longer conform with the
practice and will of the population. If it remains in force it
becomes authoritarian law (as, for decades, was the law against
abortion, until it was repealed).
Pospisil’s theory has the merit of providing a precise framework
which can be applied to all societies. Some writers, however,
doubt that this is indeed the case: ethnographic observation
reveals that sometimes one of the four criteria elaborated by
The Fields of Legal Anthropology 127
Pospisil is missing. It must then follow that either a society can be
devoid of law - which Pospisil challenges - or that the theory is
not universally applicable, which he also contests. M. Alliot’s the­
ory offers a more flexible approach and follows a different line of
inquiry.
76 The juridicization ‘ theory o f M . Alliot and the Laboratoire
d ’anthropologie juridique de Paris
According to M. Alliot and the LAJP team, law is a universal phe­
nomenon. Determining what gives it special status in relation to
other methods of social control is a legitimate inquiry. But atten­
tion should be focused less on law than on the process of ‘juridi­
cization’. Law is not so much a distinct set of social relations as
the particular status that each different society chooses to give to
certain social relations, and this accounts for variability in the
legal domain. Even if each society manipulates the processes of
‘juridicization’ to its own ends, these processes are none the less
founded on a common imperative: to regulate those elements of
society which are considered necessary to its maintenance.
We will expand on these points.
First, law cannot be reduced to the descriptions attached to it
emanating by Western society; law is not, by its nature, bound
either to the existence of the state, or to a recognition of its ‘ratio­
nality’. According to Alliot, certain societies find their coherence
principally in the very organizing principles of their social struc­
ture, in which each part is essential to the coherence of the whole.
This is the case in many traditional societies. Other societies pre­
fer to resort to an outside authority, which will impose its own
coherence: the state, but also sometimes a god, in general a single
god (the Hebrew, Christian, or Islamic God). The state is thus
only one form of authoritarian social control. In this first model of
society, an individual is primarily defined in relation to the various
social groups to which that individual belongs, and competition
between these groups is limited; the field of law - often secret - is
restricted, and is expressed more by a case-by-case search for
equity than by the prescription of general and permanent norms.
Second, law consists not of a specific body of rules, but of an
‘intemormative’ process. There would appear to be a consensus
regarding this point amongst several writers representing contrast­
ing traditions. Carbonnier17 maintains that the variability of the
 128 Legal Anthropology
respective fields of morality, religion and law can be explained
through normative criteria: legal rules appropriated rules outside
the legal domain and, in the same way, morality and religion can
appropriate legal rules (if a civic morality exists, then so can a
civic religion); and, conversely, law can withdraw from certain
areas, abandoning them to religion or morality. In general wher­
ever the state extends its influence so will law: the ‘juridicization’
of a rule will in like manner increase its mandatory nature.18
If the economy, which concerns people-to-matter relationships,
politics, which concerns people-to-people relationships, and reli­
gion, which concerns people-to-god relationships, all form com­
plementary categories, each featuring an essential relationship,
law does not constitute an additional category but is to be found
in each of them. However, law differs from the other categories
because even if legal facts are all social facts, not all social facts
are legal facts: a legal fact is the object of a specific mode of social
control of an institutional nature. This formal criterion is not,
however, a satisfactory definition of law. It is equally unsatisfacto­
ry to attempt a definition of law through its content, since the
content is eminently variable. Thus we must concentrate on the
beliefs and principles that a given society brings to law: law per­
tains to those institutions which are concerned with social repro­
duction, those which a society considers vital to its cohesion and
survival. Thus, depending on the circumstances, a fact may, or
may not, be a legal fact (the virginity of a bride is necessary to val­
idate a marriage in certain systems and not in others).
The field of law is therefore characterized by considerable vari­
ability depending on the society to which one refers. According to
M. Alliot this variability can stem from technological change: thus
the increase in the number of vehicles on the roads has led to a
highway code [code de la route] whereas the movement of pedestri­
ans has, in general, yet to be ‘juridicized’; similarly we are cur­
rently witnessing the beginnings of environmental law. It is
generally the case that when a society makes the culturally deter­
mined decision to emphasize people-to-matter relationships (lay­
ing particular stress on economic factors), human relationships
are reified, and law, as strictly defined, extends its influence.
Conversely, references to equity and good faith occur more fre­
quently in societies which put more value on relationships
between people than between things (chiefdom societies, tradi­
The Fields o f Legal Anthropology 129
tional societies in general).
We are stating that the variability of law stems from different
organizing principles. Non-Western societies attach more impor­
tance to groups, which are considered as permanent, than to
individuals, whose existence is ephemeral. The appearance of the
city or the state, however, generally results in a transfer of author­
ity to the individual away from groups based on kinship or resi­
dence, in these new conditions of centralized political power.
This transformation is often reflected in a phenomenon which
classic theories of law term a ‘secularization of law’. The expres­
sion would appear unsatisfactory in so far as it invokes an evolu­
tionary principle postulating a progressive differentiation of law,
morality and religion. In reality, when a society confronts change
(technical, political, or metaphysical), it redefines the acts and
norms which it considers as essential to its survival, and extends
or restricts the field of law in ‘juridicizing’ or ‘de-juridicizing’
entire sections of social life.
There are, then, contrasting points of departure: there is the
all-embracing ethos of acephalous societies militating against
social stratification; the pluralist ethos of ‘complementarist’ soci­
eties which tolerate and recognize a certain degree of social
stratification; the tendency towards a totalitarian ethos on the
part of unitary societies, founded on considerable but officially
denied social divisions, and also based on the state - a state made
necessary by antagonistic social divisions. Nevertheless, the LAJP
team believes that these contrasting elements all go hand in hand
with a rational identity: no society is more ‘reasonable’
[:raisonnable] than others. Yet each society turns to reason as a
function of the view which it has of itself and of the world. In this
sense - and this is epistemologically important - the way law is
interpreted is a determining factor in legal change: if we under­
stand law differently we will apply it in a different manner. This
holds true both for the customs of traditional societies and the
system of jurisprudence in societies based on law.
Taken together, these concepts, centred on the normative and
variable elements of the field of law, and also on the beliefs and
principles that underpin them, predicate certain methodological
decisions.
Legal phenomena can be observed on three levels: discourse,
practices, beliefs and value systems.
130 Legal Anthropology
Discourse or explicit enunciations, in written or oral form -
laws, codes, customs, allocutions, adages, etc.: in general Western
jurists confine themselves to discourse, favouring its written
forms.
Practices, or acts carried out by individuals and groups: this
level is essential to the understanding of law in traditional soci­
eties where law is, in the main, characterized by its practical
nature. In traditional societies law, for the individual, stems less
from explicit rules than from activities which are often reflected in
their nomenclature (thus the person clearing land does not pos­
sess rights of use or ownership over that land, but a right of axe;
just as under feudalism there existed un fief de haubert [knight’s
fee; haubert, ‘coat of mail’: TN] underlining the fact that the
recipient’s duties were limited to knight’s service). Thus ‘juridi-
cization’ operates in the opposite direction to modem law: instead
of passing from the rule to the activity it enshrines, we move from
the activity to the rule that describes it, leaving until later the
elaboration of common rules applied to the legal aspects of activi­
ties of a similar nature.
Beliefs and value systems, or perceptions and symbolic con­
structs: these bring an understanding to the practices and the dis­
course, on the part of those who carry them out or articulate
them, and those who invoke or criticize them. These beliefs are
usually plural, since the mastery of law can be the stake for which
certain social groups compete. This helps explain why, within the
same society, law, in a particular area (property, for example),
may be perceived as just or unjust depending on the individual’s
social grouping.
What conclusions can we draw? The work of the LAJP team
seems to give due consideration to the causes of variability in law
and the nature of the process of ‘juridicization’. On the other
hand, we should not overlook the fact that their ‘culturist’
approach leads them to emphasize the diversity of societies rather
than their unity. The rejoinder may, with reason, be that compar­
ing societies does not necessarily bring their identities into relief.
However, in the author’s view, all these theories have a distinct
advantage over classical theories of law: the advantage of being
more objective, based as they are on a wide range of societies,
which includes, but does not overvalue, our own societies. It is in
this respect that these theories are genuine contributions to legal
The Fields o f Legal Anthropology 131
anthropology, and help to distinguish it from other legal disci­
plines.
NOTES
1 For ethnology, 1787 (De Chavannes); for anthropology, 1795
(Blumenbach); for ethnography, 1810 (Nieburh). The expres­
sion ‘science of man’ dates from 1739 (Hume).
2 For an explanation of these three levels, see below, no. 76.
3 Essential reading on this subject is Prehistoric Hunter-Gatherers:
The Emergence of Cultural Complexity, ed. T. D. Price and J. A.
Brown (New York and London, Academic Press, 1985, 450
pp.). We may note that the transition to the neolithic took
place in France between 6300 and 3700 BC. The population
increased from 100,000 (4000 BC) to a million (3000 BC), and
to four or five million around 1800 BC (see J.-N. Biraben and
J. Dupâquier, ‘Les premiers Français: combien sont-ils?’,
L ’Histoire 111 (1988): 93-5). We may venture to suggest that
this enormous increase in population was accompanied by an
intensification of law.
4 See Rouland, Les Modes juridiques de solution des conflits chez les
Inuit (op. cit., above, no. 49), pp. 29-37.
5 See P. Clastres, Recherches d’anthropologie politique (Paris, Le
Seuil, 1980, 248 pp.), pp. 114-15.
6 See Lapierre (op. cit., above, no. 13), pp. 75-6, 112-53.
7 J. Carbonnier, Essais sur les lois (Répertoire du Notariat
Defresnois, 1979), p. 296.
8 See Rouland, Les Modes juridiques de solution des conflits chez les
Inuit (op. cit., above, no. 49), pp. 80-101; this mode of set­
tling disputes, an economical way of dealing with social ten­
sion, seems to predominate in the Arctic regions where the
environment creates difficult conditions and societies carry
small populations. These characteristics make these societies
far more vulnerable to social conflicts; thus they are vigilant in
their avoidance of them.
9 A. Weill and F. Terré, Droit civil: Introduction générale (Paris,
Dalloz, 1979), p. 16.
10 J. Poirier, ‘Le Problème de la rédaction des droits coutumiers
d’Afrique Noire’, Rapports français au Ve Congrès international
de droit comparé, Bruxelles, 1958 (Paris, Cujas, 1963), p. 117.
132 Legal Anthropology
11 For a critique of the criterion of the sanction, see J.
Carbonnier, Sociologie juridique (Paris, A. Colin, 1972), pp.
129-36; Rouland, Les Modes juridiques de règlement des conflits
chez les Inuit (op. cit., above, no. 49), pp. 10^7.
12 J. Carbonnier, Flexible Droit (Paris, LGDJ, 1971), pp. 73-90.
13 See R. Bosch, ‘Jeunes: ce qu’ils croient,’ Le Point, 769 (15 juin
1987): 90-1.
14 See above, no. 25.
15 See above, no. 36.
16 A terrible and extreme example of the interiorization of a very
authoritarian law by those to whom it is applied is furnished
by Bettelheim’s descriptions of the inmates of Buchenwald:
some of these inmates, due to the pressures under which they
existed in the universe of the concentration camp, began to
imitate the behaviour of the SS, even evincing admiration for
their tormentors (the Stockholm syndrome offers parallels to
this phenomenon, where victims of hostage-taking come to
the defence of terrorists).
17 See Carbonnier, Essais sur les lois (op. cit., above), pp. 257-64.
18 But the contrary may hold true. Carbonnier (ibid., p. 263)
makes the fine distinction that ‘Moral responsibility made us
feel remorse. Civic responsibility instils forgetfulness: it is a
great liberator. Law sometimes has the function of freeing us
from mores and morality.’
FURTHER READING
77 Suggested, bibliography for definitions o f law
General definitions exist in Von Benda-Beckmann, ‘Anthropology
and comparative law’, in Anthropology of Law in the Netherlands
(op. cit., above, no. 58), pp. 91-9; Motta, Teorie del diritto primiti­
ve (op. cit., above, no. 43), pp. 20, 30-6, 155, 164, 185; R.
Motta, ‘Saggi sull’antropologia giuridica’ (Faculta di Milano,
Seminario 1984-1985, unpublished), pp. 12-16; T. Olawale
Elias, La Nature du droit coutumier africain (Paris, Présence
Africaine, 1961), translated into English as The Nature of African
Customary Law (Manchester, Manchester University Press,
1956), now rather dated. On perceptions of law in non-Westem
societies, see: L. Milliot, ‘L’Idée de la loi dans l’Islam,’ Travaux
The Fields o f Legal Anthropology 133
de la Semaine internationale de droit musulman, 2-7 juillet 1951
(Paris, Sirey, 1953), pp. 17-33; L.-J. Dorais, ‘Humiliation et har­
monie: l’expression du droit coutumier chez les Inuit du
Labrador’, Recherches amérindiennes au Québec, 14, 4 (1984): 3-8.
On law, justice and truth, see: C. Atias, ‘Le faux et le droit’, Le
Temps de la réflexion (1984): 225-45; J. Parain-Vial, ‘Esprit de jus­
tice et fondement du droit’, Archiv fur Rechts und Sozial
Philosophie, 24 (1985): 32-7; M. Villey, Philosophie du Droit, Vol.
1, Définitions et fins du droit (Paris, Dalloz, 1986), pp. 49-88. On
reasons for submitting to law, see: R. B. Seidman, The State, Law
and Development (London, Croom Helm, 1978), pp. 100-3; S.
M. A. Lloyd-Bostock, ‘Explaining compliance with imposed law’,
in The Imposition of Law, ed. S. B. Burman, B. E. Burman and B.
E. Harrel-Bond (New York, Academic Press, 1979), pp. 9-25; J.
Carbonnier, ‘La genèse de l’obligatoire dans l’apparition de la
coutume’, in his Flexible Droit (Paris, LGDJ, 1971), pp. 73-90.
On P.-J. Bohannan’s ideas on law and the settlement of conflicts,
see P.-J. Bohannan, ‘Anthropology and the law’, in Horizons of
Anthropology, ed. Sol Tax (Chicago, 1964), pp. 191-9. The psy­
choanalytical theory of P. Legendre is clearly summed-up in J.
Lenoble and F. Ost, Droit, Mythe et Raison: Essai sur la dérive
mythologique de la rationalité juridique (Brussels, 1980), pp.
222-30. The various strands of legal positivism are clearly
described in M. Troper, ‘Le Positivisme juridique’, Revue de syn­
thèse, 118-19 (1985): 187-204. For more recent overviews on
definitions of law see F. Ost and M. Van de Kerchove, Jalons pour
une théorie critique du droit (Brussels, Publications des facultés uni­
versitaires Saint-Louis, 1987), pp. 135-82; Ost and Van de
Kerchove identify law with its practice (p. 177) whereas for F.
Terré law is associated with doctrines; see his ‘Définir le droit?’,
RRJ, 7, 16 (1983): 374-82, and ‘Définir le droit’, Droits, 10
(October 1989).
78 Specialized bibliography
P.-J. Bohannan outlines his theory of double institutionalization
in Law and Warfare (London and Austin, TX, University of
Texas Press, 1967), pp. 45-9; see also his ‘The different realms of
law’, AA, 67, 6, 2 (1965): 33-42, and, particularly, his ‘Law and
legal institutions’, International Encyclopaedia of Social Sciences,
9-10 (New York, 1972), pp. 73-8. The theory is criticized by J.-
 134 Legal Anthropology
G. Bellay in Conflit social et pluralisme juridique en sociologie du droit
(op. cit., above, no. 49), p. 17.
A summary of the ideas of R. Verdier may be found in his
‘Premières Orientations pour une anthropologie du droit’, DC, 1
(1981): 5-22.
L. J. Pospisil has described his four criteria for a definition of
law in his ‘The nature of law’, Transactions of the New York
Academy of Sciences, 18, 8 (1956): 746-55; his ‘Law’, Quademi
Fiorenti, 14 (1985): 23-75; his The Ethnology of Law (op. cit.,
above, no. 9), pp. 30-51. A summary in French exists in L. J.
Pospisil, ‘Le Droit comme concept opérationnel fondé empirique­
ment’, DC, 13 (1987): 5-23.
M. Alliot outlines his theories on variability in the field of law
in several works. ‘Genèse et permanence des traditions
juridiques’, in ‘Communication au premier colloque organisé à
Münich par l’Institut fur historische Anthropologie’ (Paris, LAJP,
1976, unpublished) is essential reading. There is also
‘L’Anthropologie juridique et le droit des manuels’, Revue
juridique et politique, Indépendance et coopération (1983): 537-45;
‘Un Droit nouveau est-il en train de naître en Afrique?’, in
Dynamiques et finalités des droits africains, ed. G. Conac (Paris,
Harmattan, 1980), pp. 467-95. The importance of an internor­
mative perspective is underlined in J. Carbonnier, Essai sur les lois
(Répertoire du Notariat Defrénois, 1979), pp. 257-64; E. Le
Roy, ‘Pour une Anthropologie du droit’, Revue interdisciplinaire
d’études juridiques, 1 (1978): 71-100; J. Griffiths, ‘The division of
labor in social control’, in Toward a General Theory of Social
Control, ed. Donald Black, Vol. 1 (Orlando, FA, Academic Press,
1984), pp. 37-69.
On the links between legal anthropology and neighbouring dis­
ciplines see: J. Pourmarède, ‘Pavane pour une histoire du droit
défunte’, Procès, 6 (1980): 91-102; also by J. Pourmarède,
‘Rechtshistorie in Frankreich’, Zeitschrift fur neuere Rechtsgeschichte
(1981): 50-63; N. Rouland, ‘L’Histoire des institutions: du
hasard à la nécessité’, RRD, 1 (1983): 19-40, where the present
crisis in the history of law is described. On legal anthropology and
comparative law see: Negri (op. cit., above, no. 43), pp. 105-27;
J. J. Constantinesco, Traité de droit comparé, Vol. 1, Introduction au
droit comparé (Paris, LGDJ, 1972), pp. 115-26; J. J.
Constantinesco, on the shortcomings of the methods of compari­
The Fields o f Legal Anthropology 135
son used in comparative law, see Traité de droit comparé, Vol. 2,
La Méthode comparative (Paris, LGDJ, 1974), pp. 92, 135-252,
261-5; and Traité de droit comparé, Vol. 3, La Science des droits
comparés (Paris, Economica, 1983), pp. 121-4, 153-62.
As regards the general relationship between ethnology and soci­
ology there is a good historical study in L. V. Thomas, ‘Sociologie
et Ethnologie, ou réflexions sur un faux problème’, Bulletin de
l’IFAN, 35, series B, 4 (1973): 854-80. More specifically, on the
treatment of law in the two disciplines, see A. Febbrajo,
‘Sociologia e antropologia del diritto’, Quademi Fiorentini, 14
(1985): 7-19, who marshals the arguments in favour of diver­
gence or convergence. Griffiths, Anthropology of Law in the
Netherlands in the 1970s (op. cit., above, no. 58), underlines the
traditional divergence of the disciplines yet states that he is con­
vinced that they will both eventually fuse, since they are not based
on different principles; R. Motta, ‘I percorsi dell’Antropologia
giuridica’, Materiali per una storia della cultura giuridica, 12, 2
(1982): 477-96, describes the convergence of the two disciplines
in the United States. A.-J. Arnaud, ‘L’Anthropologie au service
de la connaissance juridique’, Archiv fur Rechts und Sozial
Philosophie, 24 (1985): 82-93, quite righdy emphasizes that legal
anthropology is now capable of providing alternative models for
our own societies, a new departure in the history of the discipline.
For a summary of current problems in the sociology of law and its
development in various countries, we may consult: A.-J. Arnaud,
Critique de la raison juridique, Vol. 1 (Paris, LGDJ, 1981), pp.
145—90; A.-J. Arnaud, ‘Sociologie du droit’, Revue de synthèse,
118-19 (1985): 285-99; J. Commaille and J.-F. Perrin, ‘Le
Modèle de Janus dans la sociologie du droit’, Droit et Société, 1
(1985): 95-110.

3 self-analysis, the contrast between the experience of law in tradi­
Methodology
A journey can simultaneously take us through space, time
and social hierarchy. (Claude Lévi-Strauss, Tristes
Tropiques)
Man does not own the land; man is owned by the land.
(Agni proverb, from the Ivory Coast)
Ethnological research was originally carried out in ‘exotic’ soci­
eties and those involved, who generally came from Western soci­
eties, needed to adjust to a new physical and mental landscape;
sometimes they lost their bearings and ran the risk of succumbing
to ethnocentricism, as a ready means of regaining a sense of
direction. A methodology began to emerge which avoided this
danger and which consisted of collecting and interpreting material
in the most scientific way possible: this methodology resulted in
the discipline of legal ethnology.
However, the investigation of individual societies could only be
a starting-point. Anthropological inquiry is by definition cross-
cultural. If we are to compare the legal systems of several soci­
eties, then we must develop further techniques, those which have
been adopted as the methodology of legal anthropology.
We will consider the methodology of these two disciplines in
turn.I
I THE METHODOLOGY OF LEGAL ETHNOLOGY
The observer is not impartial and the object of the observer’s gaze
can be modified by his or her own vision: there is more than a lit­
tle truth in the saying that it is the ethnologist who is the first to
undergo observation. In accepting the impossibility of achieving
complete ‘objectivity’, the ethnologist can at least avoid the most
blatant misconceptions by taking stock of how he or she is per­
ceived by the society in question. Even with the benefit of this
Methodology 137
tional and in Western societies will not be diminished; the
methodology must thus be appropriate to the situation.
A: T h e necessary attributes of the observer
79 The need for catharsis in the field of ethnological inquiry
Ethnology is by no means the only discipline where researchers
must rid themselves of ethnocentric preconceptions: the same
strictures apply to the study of history. However, the imperative is
even stronger in ethnology. In fact, ethnological research can be
divided into three stages: prior to departure the ethnologist, like
the historian, must gather together as much information as possi­
ble on the society in question and the problems which require
elucidation; there follows work in the field, with the collection in
situ of material which frequently modifies the perspectives gained
through written sources; finally, on return, the ethnologist must
interpret the ethnographic material and contrast it with published
material, the result being a monograph where the conclusions of
the research are drawn. However, legal ethnology is a young disci­
pline: the phase of collection of information in the field is a deter­
mining one, to such an extent that the researcher will proceed by
induction rather than deduction. The loss of geographical and cli­
matic bearings can exert an influence on a researcher’s thinking;
in this discipline, unlike others, the researcher is not only con­
strained by the working of his or her intellect, but is also subject­
ed to a physical and affective response to the subject-matter.
‘Exotic’ locations may have their obvious attractions but they also
prompt a certain amount of soul-searching: ethnologists are no
longer the same people when they return home; they see their
society through different eyes and many institutions which were
taken for granted no longer seem ‘normal’. This process of strip­
ping assumptions bare is both necessary and rewarding. However,
like all cathartic processes, it is not without difficulty, and one of
the ways of avoiding the issue is to yield to ethnocentricism, an
attitude against which, more than any other, the ethnologist must
be armed. Avoiding a projection of one’s own view of the world is
not achieved by sustaining the illusion that it will be a matter of
only a few months before the researcher can become at one with
 138 Legal Anthropology
those whom he or she studies. Not only is such a transubstantia-
tion impossible, it would actually be harmful. In fact the ethnolo­
gist needs to retain a certain distance, both in regard to his or her
own society and to the society under study. This is because our
social conditioning lies deep within us, rooted in our uncon­
scious: this bias can best be apprehended when we are neither
totally detached nor totally under its sway.
Instead of demanding of the observer an illusory suppression of
his or her preconceptions, it is rather more constructive to take
part in a form of self-analysis in which hopes, aspirations and sci­
entific, religious and other human assumptions are all taken into
account. No doubt this is difficult to achieve, but since, as the
author believes, ethnological inquiry stems at heart from dissatis­
faction and the quest for new horizons, it is as well as to be aware
of what the ethnologist wishes to leave behind, at home, and the
reasons for leaving. Ethnologists become adults several times in
their lives.
Certain methodologies seem less well adapted than others in
protecting the researcher from ethnocentricism. Thus the
English-speaking tradition, the dynamic school of anthropology,
favours ethnographic descriptions. Even if we assume that a
‘pure’ description is possible, which we doubt (because to classify
is also to conceptualize), it is an absurd solution: are we to avoid
ethnocentricism in interpretation by reducing our interpretation?
At the other end of the spectrum, historical materialism concen­
trates on redefining basic premises and ‘proving’ the universalist
explanations drawn from Marxist theory; the comparative frame­
work is overemphasized and interpretation is geared to the gener­
alizing of data rather than its validation and analysis. The
structuralist approach, in contrast, would appear to be more bal­
anced, since it gives equal emphasis to the rigorous collection of
data and its subsequent comparative treatment. The researcher
will use the methodology which conforms best with his or her
philosophical outlook and personal preference, stressing some
features to the exclusion of others and presenting results in differ­
ent ways.1There are also certain inbuilt parameters.
First, language: the difference between conceptual categories is
generally reflected in terminology. Hence the necessity of collect­
ing a corpus or glossary of terms relating to law which most faith­
fully represents the concepts articulated by the society in
Methodology 139
question, as expressed in the indigenous language. Familiarity
with language is thus indipensable, even if recourse must be made
to interpreters with the attendant risk of the deformation of
ethno-linguistic data.
Second, there is the limiting factor of time: the time needed to
wait and make important contacts, gain access to confidential
information, and identify the questions which we should refrain
from asking if we are to receive correct answers - or any answer at
all. In addition, ethnographic observation is concerned not only
with discourse but with practices: here also, considerable time is
required to identify those which are significant. As a general rule,
a year in the field is felt to be the minimum time required to make
valid statements. However, as a rule, we cannot deny that finan­
cial and career imperatives intervene. Finance for long periods in
the field is more and more difficult to obtain, especially for young
researchers.
Thirdly, the researcher must also pay close attention to the
choice of informants. A researcher is not seen as ‘neutral’ within
the society under study, and the same is true of members of that
society, who all have allegiances to particular subgroups: a Dogon
informant is no more objective than any historical source. The
researcher will tend to choose the leading members of the society
as informants - this is always the easiest approach - rather than
marginal elements or rebels. The results thereby obtained will, as
a consequence, tend to underpin the current social and legal
order. The researcher will also find it easier to make contact with
members of his or her own sex, effectively limiting access to infor­
mation that resides in members of the opposite sex. Finally
researchers must show due respect for the societies which extend
a welcome to them: examples are known of ethnologists who, to
facilitate their study of disputes, have actively provoked a dispute,
despite the attendant risks to the whole society.
B: T h e attributes o f the society observed
80 The pre-eminence o f the spoken word
Our own legal culture has assumed a predominantly written form
for several centuries. Most traditional societies, however, commu­
nicate through the spoken word.2 Thus one of the main difficul-
 140 Legal Anthropology
ties in legal anthropology is that the researcher must become
acquainted with non-written law.
Claude Lévi-Strauss considered language to be one of the three
main systems of communication which, combined, constitute
social existence. The communication of messages through a set of
linguistic rules facilitates the operation of the other two systems:
the communication of women between groups through the rules
of kinship and marriage, and the communication of goods and
services through economic rules.3 Whilst the written word facili­
tates the dissemination and storage of information (archives), the
oral mode is the province of face-to-face societies. Oral communi­
cation implies physical proximity and the personalization of con­
tacts between individuals (except in our own societies where, with
electronic media, oral discourse, distance and anonymous contact
all coexist). In this respect, speech plays a role beyond that of car­
rying messages; it can carry a much more important mystical or
affective charge (for the Dogon, speech is a fragment of divine
presence). In the legal domain, norms and models are inculcated
by recitation and disputes are settled through the spoken word.
81 The typology o f oral statements
The information sought by the researcher is thus presented in oral
form; this can be divided into several categories of oral record.
Legitimation: myth and legend: no dates can be attributed to
myths, they are normally encountered in segmentary societies
dominated by kinship. Legends, on the other hand, can some­
times be dated and often have a political dimension associated
with a power base distinct from kinship.
Justification: tales and epics: these focus on an individual, whose
actions have been rewarded by the conferring of special status,
temporary or permanent. In Africa, griots are responsible for the
creation and transmission of epics which are sung at festivals and
ceremonies.
Socialization', this category concerns the integration of the indi­
vidual into the group through the transmission of a common cul­
tural heritage. Proverbs are the concise expression of principles or
rules which directly relate to social or legal existence. Stories are
fictional accounts, allegorical or anthropomorphic, in which the
origin of a rule may be discerned, or situations of conflict, involv­
ing humans or animals, may be illustrated by adventures in the
Methodology 141
narrative (particularly in relation to matrimonial problems).4 Also
of interest are the songs accompanying dance, mourning, mar­
riage and even the language of drumming.
Personification: in contrast to justification, its purpose is not the
glorification of an individual, but the integration of a person into
a group. Genealogies, with lists of male, female, or bilineal ances­
tors, are important ways of identifying relationships between indi­
viduals; they are recited when people meet. People have several
names. Filiation is recognized at birth by the conferring of the
clan name, to which may be added secondary names (nicknames,
war names, or dance names), linked to particular status or role.
These oral records are stored in various ways. As a general rule
they are taught progressively (from childhood through to old age),
they are personalized (according to the status and wisdom of the
receiver) and they feature in rites of passage (birth, circumcision,
marriage, giving birth, bereavement, death). However, whilst the
oral record concerning socialization is articulated around festivals
or holidays, legitimation and justification form the object of spe­
cial treatment. The latter categories are more directly concerned
with social cohesion and the prestige of leaders. Sometimes they
are recited ad nauseam in public, sometimes they are confided to
guarantors of the tradition. In the latter case either a social group
enjoying caste-like status is given prominence, such as griots
(endogamy, hereditary transmission of status); or the perpetua­
tion of collective memory is vested in a lineage (the royal lineage
in the case of the Bantu kingdoms). In either case, this commit­
ting of information to memory is independent of all other activity,
political or physical.
82 Approaches to legal phenomena
Two approaches to legal phenomena exist: the analysis of institu­
tions, and the observation of behaviour.
The analysis of institutions relates to the explicit and visible
aspects of social and legal relations. An example is the processual
approach of English-speaking workers, centred on the settlement
of disputes, in which law and sanction are closely associated. This
also happens to be the method of analysis invariably used by
Western jurists, since it is suited to state societies and written
forms of law, past or present, Western or non-Westem. However,
in the case of the oral system of law prevalent in the majority of
TT
 142 Legal Anthropology
traditional societies this is a poor choice and gives an incomplete
picture. A second approach must also be used.
The observation of behaviour relates to the fact that institutional
information is often difficult to retrieve from the oral record:
either points of reference have disappeared, creating unbridgable
gaps in knowledge,' or the information is skewed or truncated
(political alliances are often expressed in terms of kinship and
some groups manipulate genealogies to give themselves more
political weight); these features may have been reinterpreted fol­
lowing changes in society, something that applies in particular to
the category of justification. In addition, in confining itself to
institutions, institutional analysis passes over whole areas of law,
namely legal behaviour and associated values and beliefs. The
observation of behaviour, or legal ethnology, springing directly
from ethnographic inquiry, helps overcome this problem; it is
based on the premise that all societies, each in its own way,
acknowledge social situations as just or unjust through the
process of ‘juridicization’. This is explicit in discourse or state­
ments and implicit in behaviour. Three parameters come into
play.
First, the perception of just and unjust will vary according to
the status of groups and individuals in the social hierarchy: hierar­
chies, values and authority must thus be clearly identified, with­
out neglecting minority interests.
Second, law is concerned only with those social facts which the
various social groups consider as essential to social reproduction:
biologically, ecologically and ideologically. Moreover, the observ­
er must concentrate attention on legal behaviour and place it in
the context of discourse, and values and beliefs, identifying the
ways in which they interact. Thus the description of behaviour
will permit a clearer interpretation of institutions.
However, these are no more than alternative ways of approach­
ing law - institutional or ethnological. The choice between one
and the other - or their combined use - depends in fact on broad­
er considerations, the main traits of legal ethnological fieldwork.
83 The m ain features o f legal ethnological fieldwork
Fieldwork in legal ethnology explores two areas: the extent of the
legal domain, and the means by which law is applied.
The extent of the legal domain: with the criteria identified above
Methodology 143
as a point of departure, the observer must define the circum­
stances in which social reproduction is challenged. These circum­
stances are variable, since each society possesses its own
momentum, the product of a number of factors: history, environ­
ment, beliefs, etc. For example, in societies possessing few tools,
thus setting limits to production, the sensitive areas for the main­
tenance of a group will be biological reproduction (established by
regulating marriages and thus the movement of women) and the
reproduction of ideology (the values legitimizing the authority of
elders, the rules controlling the provision of goods to elders by
younger members, and the redistribution operated by elders to
younger members).
The means by which law is applied: the application of law resides
in particular individuals, and takes particular forms, which the
observer must attempt to describe.
A wide range of hierarchies exists in human societies. It
depends on a number of factors including, in particular, the way a
society views itself and the extent to which this vision is shared by
its constituent groups. The status of individuals associated with
law and its application should be considered in the context of the
social hierarchy. It will be noted that groups accord high status to
individuals who are responsible for regulating social existence
(legislators, judges, leaders, elders).
As regards the methods of legal regulation, M. Alliot and E. Le
Roy have distinguished two main variants. The first ensures con­
tinuity in social reproduction (laws, privileges, ancestry) and the
avoidance of conflict; the second concerns the restoration of
social order and the settling of disputes through a variety of
means, such as the economic, religious, or political control of
society, or the legal sanction applied to behaviour considered as
unjust or threatening social order. Here again, the observer must
identify each of these processes and place them in their context.
The elaboration of macro-comparisons - the proper role of
anthropology - can be made only at a later stage.
II THE METHODOLOGY OF LEGAL ANTHROPOLOGY
The West has long used comparisons in examining societies
which differ from itself. In the sixteenth century comparisons
used the Bible as a reference point. Subsequently, geophysical cri-
TT
 144 Legal Anthropology
teria were employed to classify races and cultures (climatic theo­
ry, for example). Today we favour criteria which focus on social
structure and beliefs and value systems. We cannot gloss over the
fact that macro-comparisons, which consider ever more extensive
systems of law, are particularly complex, leading some observers
even to doubt their validity. Yet we believe it is possible to make
some fundamental comparisons.
A: Are m acro-com parisons possible?
Some writers, such as the comparitivist J. L. Constantinesco, do
not believe macro-comparisons are possible. Others, such as the
legal anthropologists P. J. Bohannan and M. Gluckman, disagree
on the linguistic and conceptual categories which should be used.
84 Constantinesco and his radical distinction between traditional
and modern societiesf
J. L. Constantinesco believes that universal legal criteria can be
made,7 but that comparing legal systems becomes a sterile exer­
cise serving little purpose when differences become too extreme,
the comparison of traditional and modem law being a case in
point. Modern societies possess self-awareness and are aware that
they constitute only part of the human experience; law is differen­
tiated from morality and religion, and takes the form of a distinct
edifice; traditional societies on the other hand are pluralist, com­
munal organization is weak, control over the environment is rudi­
mentary. In traditional societies, adherence to law is ‘passive,
global, tacit, imprecise and poorly articulated’; the individual is
an anonymous member of the community. These remarks will
suffice to show that, even today, a great comparitivist can be
blinded by century-old ethnocentric prejudices and demonstrate
little knowledge of research published by legal anthropologists. If
the differences between traditional and modern societies were
such as Constantinesco depicts them, then there would indeed be
little point in comparing them. However, this is not the case.
85 The universality of legal criteria and the controversy between
Bohannan and Gluckman
The universality of legal criteria are more worthy of our attention.
These can be examined in the context of the well-known contro­
Methodology 145
versy between two legal anthropologists. Bohannan believes that
the use of Western vocabulary and terms of reference in the
analysis of traditional legal systems should be abandoned, and
that on the contrary we should employ the terminology of the
society in question. For Gluckman, influenced by Marxism and
consequently inclined towards macro-comparisons, such an
approach would, if taken to its logical conclusion, render compar­
isons impossible. In his work on the Barotse of Rhodesia,
Gluckman had focused on analogies between the Barotse king­
dom and England in the middle ages, and had considered it rele­
vant to apply the concepts and vocabulary of English legal
historians to Barotse property law. Pursuing this line of thought,
Gluckman considered he had uncovered a universal legal criterion
in the notion of a ‘reasonable man’: all societies, in assessing the
behaviour of an individual, refer to a behavioural model, that of
the behaviour of a ‘reasonable man’ under similar circumstances.
Both these positions contain advantages and disadvantages:
Bohannan makes macro-comparison very difficult, if not impossi­
ble; Gluckman’s view, tinged as it is with evolutionism, runs the
danger of admitting the wolf of ethnocentricity amongst the flock.
Ours is a more qualified view, and we find ourselves more in
sympathy with the ideas of Poirier.8 Universal categories of
thought do exist (allowed/prohibited, attractive/ugly, just/unjust)
as do universal legal concepts (marriage, divorce, parental author­
ity). On the other hand, some legal categories which we have
inherited from Roman law (law pertaining to things/persons, pub-
lic/private, economic interests/non-economic interests, mov-
ables/non-movables), cannot be readily transposed. Whether,
methodologically speaking, one is a priori in favour of the concept
of universality or of specificity, it is equally important to proceed
with the painstaking collection of indigenous legal terms and
expressions. Only when this task has been performed can we pro­
ceed to an evaluation of whether equivalent terms exist in our
own legal systems.
B: Basic comparative principles
The objections raised against macro-comparisons do not in our
view appear decisive. We must now outline the methodological
principles which will determine their application. These include
the framework, the subject and the nature of the comparison.
146 Legal Anthropology
86 The comparative framework
As Lévi-Strauss stated, comparisons can be geographically, his­
torically, or thematically based. Taking kinship as an example, a
geographical comparison can be made between a lineage society
and the kinship structure of a neighbouring state society, where
there is greater emphasis on residence and inheritance. In the case
of a historical framework, we can demonstrate how the accultura­
tion of a traditional society takes place, and the repercussion on
the selection of the mode of filiation (as a general rule, ma trilineal
descent is replaced by patrilineal or bilineal descent under
Western influence). Various thematic comparisons can be made:
the role of kinship in social order, the mechanisms at work in par­
ticular areas of study (bride exchange and forms of marriage, the
status of orphans, etc.). In all cases, whatever the framework,
comparisons involve the use of a model which clearly defines the
systems and the component parts to be compared, the basis of
comparison and the formulation of the results. The last-men­
tioned consists in making general statements. Lévi-Strauss was
thus able to establish, across a wide range of family structures, the
universality of the principle of the prohibition of incest.
87 The object o f the comparison
In legal anthropology, the object of comparison consists of legal
systems and their component parts, but certain methodological
assumptions will already have been made concerning the position
and role of law in the societies to be compared. Von Benda-
Beckmann enumerates three dimensions of variability in law to
which all cross-cultural comparison of law will make reference,
given that all societies have both ‘general’ law, expressed in
abstract propositions (a sanction will follow an offence), and
‘actual’ law (a particular event will have particular consequences).
The first variable involves the extent of the field of general law.
Societies vary in the degree to which law is institutionalized,
Western societies emphasizing this aspect of law. The second
variable consists of the degree to which general law, irrespective
of the parameters in which it operates, limits the freedom of
action of members of society. The third variable consists of the
solidity of the links between general law and actual law. In some
societies, the latter does not involve a strict application of the for­
mer, and normative prescriptions are not always enforced.
Methodology 147
88 The nature o f the comparison
The nature of the comparison is, without doubt, the most delicate
question, whose complexity increases with the heterogeneity of
the legal models under comparison. Two principles should be
considered. The first is that we should study systems before their
component parts, since it is the former that will give meaning to
the latter. The second concerns the nature of the systems com­
pared. Either these belong to the same cultural model, in which
case the comparison is relatively straightforward, consisting of
simply matching responses to identical questions; or cultural sys­
tems differ, in which case they must be mediated by what R.
Panikkar terms the ‘homomorphic equivalent’: the similarity
between concepts or institutions will be deduced principally from
their functional equivalence. For example, if we examine the ques­
tion of whether the rights of man is a universal concept, it is less
important to know whether this concept exists in all societies, than
to determine the equivalence in other societies of the function
which we assign to it, namely the exercise and respect for what we
term human dignity. In this respect, there are no values or legal
norms transcending the plurality of cultures, since a value is
important only in relation to the cultural system in which it oper­
ates. However, a transcultural comparison of values is possible.
NOTES
1 We can take the study of kinship as an example. This basically
consists in the analysis of five different components: terminol­
ogy, marriage, residence, descent and heritage. Depending on
their aims, researchers will favour some of these elements to
the detriment of the others: the structuralist will study termi­
nology and marriage; the functionalist, descent and heritage;
the Marxist, marriage, residence and heritage.
2 This was also the case in the law of early Rome. There is also
the old adage ‘Oxen are bound by their horns, men by their
word’, a lampoon in wrought iron from fourteenth-century
Bologna (see G. Sautel, ‘Verba ligant homines, taurorum cor­
nua fîmes’, Mélange P. Petot (Paris, Montchrestien, 1959), pp.
507 et seq.
3 C. Lévi-Strauss, Structural Anthropology, trans. C. Jacobson
and G. Schoepf (Harmondsworth, Penguin, 1968).
 148 Legal Anthropology
4 See I. Quiquerez, ‘Le langage du droit dans le conte africain’ ,
BLAJP, 2 (1986): 39-68 (summary by the author in Droits, 6
(1987): 170), which finds aspects of African ideas on law
reflected in tales, a view of law that issues encouragement
rather than imperatives, underlining that the tale can be
employed by a judge of customary law as a legal instrument.
In Western societies tales can also have this role of legal
socialization.
5 In the words of the great Malian writer Hompaté Ba: ‘An old
man who dies represents a whole library burning.’ Sometimes
disaster is averted: a year before the death of Ogotommêli, the
old blind Dogon hunter, Marcel Griaule {Dieu d'Eau [Paris,
Fayard, 1966, 222 pp.]) was able to retrieve the extremely rich
Dogon mythological corpus from him.
6 See J. L. Constantinesco, La Méthode comparative (Paris,
Economica, 1983), pp. 102-4, 222, n. 3; also Constantinesco,
La Science des droits compares (Paris, Economica, 1983), pp.
37, 177, 267-85, 317.
7 ibid., pp. 261-7: law consists of ‘a compulsory rule in an orga­
nized society, whose violation should meet with sanction and
the conflict which resulted, be settled’.
8 See J. Poirier, ‘Les Catégories de la pensée juridique et l’in­
terprétation des droits coutumiers africains’, VI Congrès inter­
national des sciences anthropologiques et ethnologiques, Paris 30
July—6 August I960, Vol. 2 (Paris, Musée de l’Homme,
1964), pp. 349-54.
FURTHER READING
89 Recommended bibliography
General information is contained in: M. Mauss, Manuel d’ethno­
graphie (Paris, Payot, 1967); J.-P. Lebeuf, ‘L’Enquête orale et
ethnographie’, in Ethnologie générale, ed. Poirier (op. cit., above,
no. 4), pp. 180-99); J. Guiart, ‘L’Enquête d’ethnologie de la par­
enté’, also in Ethnologie générale (op. cit., above, no. 4), pp.
200-13; R. Cresswell and M. Godelier, Outils d’enquête et
d’analyse anthropologiques (Paris, Maspéro, 1976); J. Servier,
Méthode de l’ethnologie (Paris, PUF, ‘Que sais-je?’ series, 1986,
128 pp.).
Methodology 149
Apart from the few pages devoted to the subject in the above
works, there are very few studies specifically devoted to the
methodology of legal anthroplogy. The most important of "these
are unpublished and can be consulted only at the LAJP: see E. Le
Roy, ‘Méthodologie de l’anthropologie juridique’ (extract from
‘Cours d’Histoire des Institutions d’Afrique noire’, 1975-6, in the
series Orientations et techniques de la recherche collective, document
no. 1, ‘L’Enquête de terrain’ (February 1977, 24 pp.; October
1977, 62 pp.); document no. 2, ‘La Rédaction des corpus
juridiques’ (December 1776, 10 pp.); document no. 3,
‘Méthodes de traitement et d’exploitation des données’ (1978, 94
pp.). See also: F. Benda-Beckman, ‘Ethnologie und
Rechtsvergleichung’, Archiv für Rechts und Sozialphüosophie, 68, 3
(1981): 310-29; W. E. Moore and J. Sterling, ‘The comparison
of legal systems: a critique’, Quademi Fiorenti, 14 (1985): 77-117.
S. Falk Moore, ‘Comparative studies’, in his Law as Process
(London, Routledge & Kegan Paul, 1978), pp. 135-48, contains
interesting developments, and an excellent summary of the
Bohannan-Gluckman controversy. S. Falk Moore regards certain
legal terms as neutral (transaction, obligation, interest, transfer),
and thus applicable in cross-cultural comparisons. (For a more
detailed and critical study of the thought of Max Gluckman, see
E. Le Roy, ‘L’Anthropologie juridique anglo-saxonne et l’heritage
scientifique de M. Gluckman: un point de vue français’, African
Law Studies, I l (1979): 53-70.)
Also relevant are older works: Notes and Queries of Anthropology
(London, the Royal Anthropological Institute of Great Britain
and Ireland, 1951), chap. 5, ‘Law and justice’; J. Poirier,
Questionnaire d’ethnologie juridique appliqué à l’enquête de Droit cou­
tumier (Brussels, 1963); M. Back and D. Metzger, ‘Ethnographic
description and the study of law’, AA, 2 (1965): 141-65.
On the cross-cultural study of the rights of man, there is R.
Panikkar, ‘La Notion des droits de l’homme, est-elle un concept
occidental?’, Diogène, 120 (1982): 87-115, an excellent method­
ological example of comparative analysis. On the differing mean­
ing of customs see M. Alliot, ‘Coutume et mythe’, L ’Année
sociologique (1953-4): 369-83.
" m
 150 Legal Anthropology

90 The stages o f a legal anthropological study

The stages of study are shown in the table that follows. PART TWO
T able 1.3.1 Stages of study
Examining Diversity: The Legal
Stage Purpose Implications Consequences Anthropology of Traditional Societies
II
I research endoculturation; definition of subject:
design scientific acculturation; move to stage II [Africa] is a golden land, turned inwards on itself, the land
special training of childhood, which, beyond the dawn of conscious history,
is enveloped in the blackness of the night. (Hegel, Lessons
'l II collection written and oral information return to stage I for on the Philosophy of History)
1 of informtion (fieldwork); choice of completion or move on to
methods interpretation; Legal anthropology owes much to Africa. Its many systems of law
formation of hypotheses - a total of nearly four thousand for the whole continent - have
provided the discipline’s principal field of research into diversity,
1 III analysis study of important relation­ return to stage I or stage II,
and have been the point of departure for an examination of ‘oth­
ships within systems or move to formulation of
erness’. Africa, quite the reverse of Hegel’s notion, does not rep­
resent the childhood of humanity; in a number of respects its
explanations (stage VI)
thinking is perhaps more adult than our own, particularly in the
importance it gives, and the role it ascribes, to law. For this rea­
IV comparison evaluation of hypotheses depending on results, son we have decided, in the second part of this work, devoted to
by use of models examining return to one of earlier the study of traditional systems of law, to concentrate on the
properties of different phases or move on to stage experience of law of sub-Saharan African societies, from pre-colo­
systems V, generalization nial times to the present.
This will of course limit the geographical scope of our inquiry:
V generalization definition of general move to stage VI; define other traditional systems of law have been studied by anthropolo­
principles of operation new subject; return to stage gists, notably in Indonesia and North America. However, many of
of data system I or stage II the traits of traditional African law can be discerned elsewhere.
The role assigned to law depends on the vision a society has of
1 V
I presentation description of data used
of results and conclusion drawn at
humankind and the universe, and the dividing line is not so much
that between Amerindian, Indonesian, and African, but rather
various stages of study between all of these and the Western. In this respect the study of
African law is the province not only of ethnology but also of legal
‘Méthodes de traitement et d'exploitation des données’ (Paris, LAJP,
S o u rce: anthropology.
1978), p. 31 (op. cit., below, no. 89) In the first chapter we will examine the general principles of
traditional law. A second chapter will be devoted to their applica­
tion in the three fundamental areas of kinship, property and con­
tract, a third to the settlement of disputes and a fourth to legal
acculturation.
 1

Traditional Legal Systems

We, the civilized, now know that other civilizations exist.

But we give them little credence. Our attitude now that we
accept cultural relativism and the integrity of cultures is
similar to those who proclaim the existence of God, but
whose lives are little affected by this abstract belief.
(C. Roy)

It is now the fashion in our societies to contrast the exaltation of

modernity with the ‘wisdom’ of societies previously referred to as
savage. Beyond what may be only a short-lived vogue, our knowl­
edge of these societies is sparse, especially in the field of law. The
following pages will attempt to remedy the situation in describing,
in three sections, the ideal legal order, the way it is constrained by
social and political reality, and the originality of oral law and the
communal model.

I THE IDEAL LEGAL ORDER

African thought has a particular vision of the world, which has a
number of implications for law. We will examine these in two sec­
tions.

A: African views o f the world and society

91 The realism o f African thought

African thought attempts unity through differentiation, and
includes both the visible and the invisible in the real order of
things. In African religions God is transcendent, and is also
immanent in the world. The act of creation takes place through
an extension of the unity between man and God through differen­
tiation. In the beginning the creator-to-be and the creature-to-be
evolved from a state of chaos, but not nothingness. Creation
occurred gradually, in a series of differentiations: the original God
 154 Legal Anthropology
emerged from matter, his powers were then established in com­
plementary pairs, rescuing first the visible world from chaos, then,
after a number of attempts, man himself. Man furthers the
process of creation in inventing society, still in the context of dif­
ferentiation (some individuals will be peasants, some smiths or
griots; there will be territorial chiefs, political leaders, etc.). This
differentiation is no more than the extension of a unity which will
not accept uniformity. Social, political and legal divisions are
viewed as complementary, and integrated in a web of relation­
ships which we will term the communal model1- neither collec­
tivist nor individualist. Furthermore, the visible world (the
community of the living) is not separated from the invisible world
(the original God, divinities and ancestors). The divine powers
need humankind as much as humankind needs them. Someone
who dies does not depart, either for paradise or hell, but remains
on earth, now part of the invisible world. African thought is thus
neither idealist nor materialist, but realist, to the extent that visi­
ble and invisible, subject and object, nature and culture, all par­
ticipate in the real order of things. This gives African law its
particular form. ‘Talking law’ is not a question of referring to a
general and absolute pre-existing body of norms, it is rather, in
practice, a question of interpreting behaviour case by case and
making choices between the aspirations of individuals and the
needs of life in society. Also, since unity and complementarity
must triumph over division and opposition, the interdependence
of people and things is often evident, expressed in the joint ten­
dency for things to be personified and people reified. Things are
personified in that they do not all have the same status; they can
be distinguished by the mode of ownership. Some are owned by
individuals and can be freely exchanged; others are intimately
bound to the person of their owner, whose status they reinforce,
and are inalienable. Things may also be distinguished according
to their ascription: whilst some may circulate freely, others may
not leave the group which holds them, except in clearly laid down
circumstances and situations (in principle property is kinship-
based and should not leave the kinship group: this is prohibition
against extra-lineal transmission). Conversely, people may be rei­
fied. This occurs when individuals are transferred from their own
group to another group, in the course of which they lose their per­
sonality: prisoners of war; dotal marriages where matrimonial
Traditional Legal Systems 155
compensation is designed to symbolize the union between two
families, but is also intended to provide material compensation
for the group which has ‘lost’ a woman.
Finally, the same state of mind, hostile to divisions, is dis­
cernible in attitudes towards time. Time is seen not so much as
measuring the distance between past, present and future as, on
the contrary, linking them all together in eternity. Continuity
overrides succession. Thus on some occasions Dogon smiths
work together in groups of three. A child, an old man and an
adult belonging to the same caste each strike the anvil in mm. By
these strokes they link together the present, the past and the
future represented in each of them. This repetitive rhythm is that
of the myth, through which society exercises threefold control.
92 Control over time, people and space
Time, people and space: these are the three areas which African
societies attempt to control through myth.
Control over time is control over death. In constantly referring
to origins, myth ideally effaces the vicissitudes of historical
change. Myth emphasizes the primordial ordering of society,
allotting a place to the individual in each of the groups in which
he or she is involved, enabling these groups to perpetuate them­
selves beyond marriages and generations. Only the individual is
ephemeral, society lives on.
The control of individuals through myth also furthers social
reproduction: traditional social divisions should not, in principle,
be challenged by individuals.
The control over space is generally achieved by control over
individuals: the group to which the individual belongs will also
determine access to land and land-use. These three types of con­
trol are arranged in pairs to achieve two important objectives: the
continuity and equilibrium of society.
Control over time and control over people combine to ensure
social continuity. The individual is above all defined by his or her
role in the group, because only the group can be assured a contin­
ued existence. Membership of a group can be established only
through genealogical or residential ties, or, better still, both. The
Basa (Cameroon) possess a status hierarchy: at the peak are the
ngwéles, the ‘pure’, who claim ties through both blood and resi-
156 Legal Anthropology
dence; followed by those who can claim only blood ties; and final­
ly the bet long, the ‘strangers’, who claim only residential ties
(immigrants, strangers on temporary visits, clients, slaves). Rights
are attached to status, also arranged in descending order.
Education is geared to the insertion of the individual into the
groups to which he or she will eventually belong; initiation and
rites of passage reinforce this process. The most valued activities
and crafts - often smiths - are particularly favoured in myth. In
all these cases, the idea of a regulation of time is present. Periods
of time have no role, the importance of chronological time is
negated. Thus the deceased has not disappeared: becoming an
ancestor, the deceased continues to play a part in the land of the
living and features in ceremonies. But the periodicity of time can
also be overcome by control exercised over its flow. This is exem­
plified in the importance generally accorded to genealogies. These
legitimate, if necessary through manipulation, the ties of ascen­
dance and descendance, relativizing the place of the present gen­
eration in the continuum and creating a strong link with past and
future generations.
As well as social continuity, social equilibrium must also be
assured. This is, ideally, achieved through control over space and
individuals.
Control over space does not necessarily involve control over
territory, as it does in our societies. A more important considera­
tion seems to be the articulation of space as a function of the
needs of the group, helping to preserve the equilibrium of institu­
tions. The way space is controlled depends to a large extent on
social values and institutions. Thus amongst the Tiv (Nigeria),
spatial distribution is determined by genealogy, each lineage
installing itself and moving about according to its position in soci­
ety and its relationships with other lineages. It follows that if the
organization of space depends to a considerable extent on social
hierarchy, it is ultimately based on the rules organizing control
over individuals. This bonding makes social control very effective:
an individual who is excluded from the group is also excluded
from use of space, which makes survival difficult, if not impossi­
ble.
In combination, these factors produce a particular conception
of the sources of law.
Traditional Legal Systems 157
B: T h e sources of African law
In traditional sub-Saharan Africa we find sources of law analo­
gous to those of our own societies: law, custom, doctrinal and
case-law. But the particular view of the world and society which is
such a feature of African thought produces distinctive interpreta­
tions.
93 M yth and law
Myth is narrative in which the fundamental explanations regard­
ing the creation of the universe, the origins of life in society and
the main rules by which society is governed, all reside. Generally
speaking, myths unite those areas which are disjointed in modem
thought: the same myth may contain both the reason why the
moon is at a particular distance from the earth and the reason
why a man should take a wife from one group rather than anoth­
er. Myths are usually set in far-off times, when men and animals
could speak to each other. From myths flow the rales which make
life in society possible: moral, religious, legal. A careful reading of
myth provides an understanding of beliefs and values, and the
legal norms and practices of a particular society.
In general, myths of the origins of the universe and society
describe primeval disorder, which both gods and humankind
attempt to come to grips with.
Thus, in the case of the Dogon, the world began as an egg
within which there were two pairs of twins, one of which was des­
tined to be the guardian of order, and the other the provoker of
disorder. The first pair of twins solemnized, in mythical terms,
the ideal marriage by marrying each other and bringing another
set of twins into the world. But in the second pair, the male twin
left the egg prematurely and, abandoning the twin he should have
married, introduced disorder into the mythical world. On leaving
the egg of the world, this disorderly twin had concealed a few
seeds and a fragment of placenta. Subsequently, from this frag­
ment of placenta, he created the earth, and, in the absence of his
twin, sought union with the earth. This union was both contrary
to the order of things (he should have married his sister) and
impure (the twin was in union with his progenitor, since the earth
was an incarnation of the placenta from which he had emerged).
The theft of seed and the impurity of the union brought about the
 158 Legal Anthropology
necessary intervention, on earth, of the twins who were the
guardians of order.
This mythical world, by virtue of the ‘realist’ dimension of
African thought, directly influences the visible world: some legal
rules are clearly reproductions of the mythical narrative. This can
be seen in matrilineal descent and the tendency for hostility to
appear in the relationship between nephew and uncle on the
mother’s side.2 Amongst the Dogon, the uncle on the mother’s
side is identified with the male twin who left the female twin with­
out marrying her: in taking a wife from outside the lineage, he
abandons his sister. The son of this sister, his nephew, punishes
him, by insulting behaviour or ritualized theft. We can thus estab­
lish a direct relationship between myth and law. Myth can assume
the form of law in traditional societies. Through prescriptions and
prohibitions which attempt to re-establish the order which has
been perturbed by the forces of disorder, human society is created
and a hierarchy is established through complementary groups.
Amongst the Bambara, the keeper of the word, Faro, classifies all
human beings, determining caste status, establishing the food­
stuffs which should not be eaten by each social category and plac­
ing spirits everywhere to establish universal order. If disorder - or
the threat of disorder - can never be completely eliminated, the
prescriptions and prohibitions of myth are intended to arm soci­
ety against it. Some mythical prohibitions can protect those who
make legal pronouncements from the forces of disorder. This is
particularly the case for religious leaders whose mistakes could
imperil the whole community. Thus the Hogon Dogon, responsi­
ble for the integrity of the universe, must not be impure, should
have contact with no one except his wife, and should do no work.
The legislative power of myth accounts for the fact that in
many societies, no human being is given equivalent authority.
Hebrew law is contained in the Torah, charter of the alliance with
Yahweh, and the king is bereft of legislative power. In traditional
Muslim law, the source of law is the Koran, and the sovereign is
equally deprived of authority: he is the servant of law, not its mas­
ter. In many African societies, human beings can do no more
than give expression to laws, only myths can create them. Our
own societies seem to depart from this model since, on the con­
trary, they affirm human power over the law, and legislators are
dominant figures. In truth, we do no more than transfer to law,
Traditional Legal Systems 159
whether it emanates from God, the King, and now the People,
the mythical characteristics of traditional societies: the legislative
process, whether couched in imperative or conditional terms,
contains a body of normative proposals in its narrative, as do
myths. In our modern societies, which believe in change, human
power over the law, exercised by the manipulation of legislative
power, is considered to facilitate social change. However, is it not
the case that law can become too malleable an entity, resulting in
an opposite tendency, in which law progressively escapes from
our control? The inflation of legislation and regulations with
which our jurists are confronted, would tend to support this view.
Control of myth over humankind might afford better protection
than human control over law.3
Finally, myth, in its use of analogy and metaphor, introduces a
classificatory system through which communication is established
between visible and invisible beings, ensuring that disorder does
not triumph over order. The ideal legal order thus created
emphasizes continuity and equilibrium, affirming the will of tradi­
tional society to control time, humankind and things. The main
distinction between mythic and modem law is that it does not
reside in an individual or in an organ but in the whole society,
through the diversity of its constituent groups.
94 Custom
Traditional law also differs from modem law in the hierarchy
which it creates in the sources of law: custom plays a fundamental
role. Generally speaking, Western jurists define custom as pro­
longed and mandatory usage, emphasizing its lack of rigidity and
the ease with which it adapts to changing mores. Thus an ideal
order is combined with day-to-day experience. We will see below
that custom is not immutable and evolves with the needs of the
social group which has brought it into being.4 However, ideally,
those who apply custom recognize the repetition of past practice it
involves even if, when the case arises, it has to be adapted to new
circumstances. Ideally, the main characteristic of custom is repeti­
tion. It consists of a number of associated actions which constitute
a model of social behaviour, generally legitimated in conjunction
with a myth. In this way, two problems are solved: that of origins
(attributed to myth), and that of the legitimacy of custom (the
 160 Legal Anthropology
myth must be interminably repeated for fear of alienating the pow­
erful spirits which protect the community). Ancestors often bridge
the divide between the living and myth. Ethnologists asking about
the rationale of a particular custom have often received the reply:
‘We do this because our parents have always done it.’ The reply
given at the beginning of the century by an Iglulik Inuit to K.
Rasmussen demonstrates the conflict between the two approaches;
that of the observer, based on rationality, and that of the respon­
dent, based on experience: ‘Thinking too much only leads to dis­
order. . . . We Inuit, we don’t pretend to provide solutions for all
enigmas. We repeat the old stories we have told you, with the
words we remember. . . . You always want these supernatural
things to have some meaning, but we don’t fret about that. We are
happy not to understand.’5 This suppression of the origin of the
custom in the mythical past demonstrates its second characteristic,
its spontaneity. The appearance of the custom is not generally
dated chronologically by those who apply it: a custom is recog­
nized once it has emerged rather than there being any conscious
awareness of its inception. Finally, custom is mandatory, not only
because its very nature depends on repetition, but the more so
because to infringe it would be to invoke sanctions from supernat­
ural powers, to which those of the living could be added.
95 The interpretdtion o f law and the settlement o f disputes
The legal rules which emanate from myth and custom may need
to be interpreted to ensure better application. This role normally
resides in important figures and elders who should, in particular
when disputes are settled, enunciate the basic rules or infer them
from the observable behaviour. The application of the ideal order
to the everyday situation, and control over the disorder of social
reality, proceeds through the institution in which legal authority is
vested according to a technique known as the ‘accumulation of
sources’. No existing source can be replaced by a new source; it is
added to earlier sources without destroying them.
However, ideally, human beings are not the only ones who may
concretize law in the form of a sanction: the influence of the spir­
its is added to theirs. The ancestral spirits are the guardians of
myth and custom and can directly make their presence felt, caus­
ing illness or death. Humankind can also invoke the spirits
Traditional Legal Systems 161
through curses which will achieve the same results. Hence the
crucial role, in some societies, of the power of calling down curses
and imprecatory oaths, evinced in formulas and ritualized
actions6: evil, like good, must return to its source, a transition
facilitated by the spirits, or initiated by them if they feel aggrieved
by the violation of rules which the living should obey.
However, the description of conflict involves the study of every­
day life.
II THE PRACTICAL APPLICATION OF LAW
All societies possess an ideal legal order which cannot remain
unaltered when applied to practical situations. A belief in harmo­
ny and equilibrium assumes real meaning only when confronted
with the tensions and conflict of the real world: traditional soci­
eties are not spared disputes, even though they try to avoid them
or regulate them in a manner which will minimize social disorder.
Also, whilst the complementarity of social groups is emphasized,
these groups also possess specific values, which may be in con­
flict. In general one value system will achieve dominance, but the
others will survive, adhered to only by certain groups, or existing
only in veiled form. The aim of social control enforced by law in
everyday life is to setde disputes, either in restoring the existing
order or in creating a new order, whilst all the while respecting, as
far as possible, the principles of the ideal order. This control is
exercised through the framework of three fundamental relation­
ships in which all those subjected to law participate, and from
which a number of legal consequences flow.
A: C om bining three forms o f control with the three funda­
m ental relationships
96 The three fundam ental relationships: humanity, things, God
In traditional African societies, all those subject to law are
enmeshed in three series of relationships, which combine with the
three kinds of control defined earlier in the chapter.
The first relationship is person-to-person. This will be deter­
mined by the place people occupy in society and the level at
which their activities take place. Relationships may be group-to-
 162 Legal Anthropology Traditional Legal Systems 163

group, group-to-individuals, or individual-to-group. The person- Table I I .1.1 Relationships, forms of control, goals and characteristics
to-person relationship is crucial in the prevention and settling of
disputes. Relationship Control Goal Concrete characteristics
The second relationship is person-to-God, which attempts to
control time, and, through time, humankind. It concerns the person-to-person control over social tension and conflict
domain of kinship, in which communities are articulated around relationships individuals continuity
the cult of ancestors and their tombs; it may also involve the
political domain where power frequently contains a sacred dimen­ person-to-things control over continuity and realism of law
sion; it may even extend to the domain of property, where certain relationships space social control
rights may be legitimated or protected.
The third relationship is person-to-things. This involves control person-to-God control over social stratification of law
over space and also control over time. It operates in the domain relationships time equilibrium
of property, where it is used to define control over space and
land-use, but it also has a part to play in other areas: kinship ties
earth but the earth that possesses human beings’. In these adages
(involving residence), marriage (dowries and compensation), poli­
we may see the operation of a mechanism: a dialectic between the
tics (the confiscation of goods, which is both an affirmation of shared religious beliefs of person-to-person and person-to-thing
power and a means through which power is exercised). relationships, defining a legal act, through the person-to-God rela­
These three relationships combine with the triple control over tionship.
time, people and space previously referred to.7 In the sphere of political organization, person-to-person rela­
tionships define the limits of competence of authority, and per­
97 The ideal and the day-to-day in conjunction son-to-thing relationships represent the instruments and uses of
This combination is achieved through the conjunction of the power, whereas the person-to-God relationship legitimizes power
three fundamental relationships with the three types of control. in giving it a sacred quality.
Each pairing of a relationship with a form of control corresponds We may concur with E. Le Roy that the complexity of these
with a goal belonging to the ideal legal order and a concrete char­ mechanisms is one of the consequences of orally based law. In
acteristic resulting from its application to everyday life. The traditional law, the absence of written evidence could make legal
resulting picture is expressed in Table H. 1.1.8 decisions very fragile. Decisions are thus reinforced by a number
Each socio-juridical field employs a specific formulation of these of associated relationships. In the case of land law, it would be an
three pairings of relationships/forms of control: each pairing is extremely hazardous enterprise for parties to call into question
employed but with varying intensity. In property law, the two most legal decisions, because of the sanctions which would be invoked
apparent relationships are the person-to-thing relationship, which through the implied violation of the person-to-God relationship.
determines how land is used, and the person-to-person relation­ These sanctions would be added to the secular sanctions. In
ship, which reflects the spatial dimension of social hierarchy. The short, orally based law cannot be qualified as ‘less reliable’ than
person-to-God relationship, for its part, usually has the role of written law; it reinforces legal decisions in a different manner.
legitimizing the legal agreement of the other two relationships, and From these three fundamental relationships we may now turn
supports it with a system of beliefs and values, making the earth
to a consideration of the characteristics of law as practically
sacred and ritualizing its use. Thus the Dogon say that ‘shedding
applied in traditional societies.
tears for the deceased is to sow grain’, implying that the bond
between humankind and the earth is the same as the bond with
the ancestors. For the Agni, ‘it is not humanity that possesses the
 164 Legal Anthropology
B: T h e characteristics of law in its practical applications
We may discern three main characteristics in the practical appli­
cation of law in traditional societies: realism, stratification and
conflict. The three relationships, person-to-thing, person-to-God
and person-to-person can be identified with these characteristics.
98 The person-to-thing relationship and realism in law
The person-to-thing relationship is present in the legal domain,
giving it a concrete dimension. The language used in the legal
process is often that used in everyday life. Thus the Wolof
describe a union without procreation as ‘a marriage of sand’: it
will be fragile, and could dissolve in the same way as sand runs
through one’s fingers. This disdain for abstraction explains why
certain concepts of Western law are foreign to traditional law.
Traditional legal concepts are not necessarily less ‘advanced’; they
display a different pattern. Thus, abstract legal entities are
unknown, as are universal properties of ‘things’ or ‘actions’. In a
contract, the responsibility of the individual will be of less impor­
tance than the actual transfer of goods. In delinquent behaviour
sanctions will not be applied to the ‘offence’ but rather to the
absence of reciprocity and equilibrium in behaviour, with due
consideration given to the rights and obligations of each person
and the welfare of the community as a whole. Disputes are setded
less by an impersonal appeal to explicit and pre-existing norms
than by very practical procedures, involving not only a judge, but
the community as a whole and possibly the pardes themselves. In
these meetings, adages, maxims and charades all feature, and ora-
torial skill will prove crucial. Step by step, a basis on which the
dispute can be setded will emerge. The final example concerns
legal ficdons: in most cases these are based on the accomplish­
ment of real actions.9 Thus amongst the Fang the aggrieved per­
son, instead of asking for direct reparation from the person at
fault, will go to another village (it cannot be the village where the
person at fault lives) and will kill the first goat he sees (or even a
woman in extreme cases). The perpetrator of the original dam­
ages is now at fault twice over: in regard both to the damages
caused to the aggrieved person, and the act committed by this
person in killing an ‘innocent’ animal or woman.
This legal thinking, baffling though we may find some of its
Traditional Legal Systems 165
manifestations, is not inferior (or superior) to Western law, it is
simply different. This is demonstrated by the fact that in some
African societies where political power and kinship can be differ­
entiated, African thought does indeed reveal its capacity of shift­
ing legal thinking towards abstraction, where it comes to resemble
our own legal thinking. At this point a specific legal language and
specialization appear in the legal system; distinct procedures
emerge (arbitration, appeal, final appeal to the sovereign); the
various categories of evidence are presented in a more formal
manner. These developments are confirmation that the more
complex the social structure becomes, the more intensive the
legal process. This leads us, in turn, to an examination of the role
played by sociopolitical structures in the stratification of law.
99 The stratification o f law
The person-to-God relationship often appears in sociopolitical
organization in a legitimizing role, whether this organization is
associated with kinship structure or a form of political power with
a separate existence. The role of law varies according to the struc­
tures in question, which we may divide into four main types.
Elementary social structure: political organization relies exclusive­
ly on kinship ties. The various social groupings are kinship-based:
social interaction is articulated through kinship. This form of
social structure enhances the internal relationships of groups,
which remain relatively self-contained. The legal instruments
associated with this level of organization are based on myth,
geared to beliefs rather than rules, and emphasizing continuity
rather than change.
Semi-elementary social structure: here kinship and political struc­
tures are distinct but interdependent. Groups have external as
well as internal ties; these can often be seen as an extension of the
internal ties of each group. Groups will become allied in cement­
ing, for instance, marriage alliances (in feudal society vassal status
is determined by kinship bonds between vassal and lord). These
relationships are known as ‘internal-external’. The corresponding
legal instruments have a dual stratification: on the levels of both
myth and customary law. Jurisdictions are coterminous with fami­
ly organization (the head of the family settles disputes through
conciliation) and inter-family organization (arbitration is most
 166 Legal Anthropology Traditional Legal Systems 167

commonly used, in the absence of a superior external legal and custom) play a minimal role; the third (laws) is reinforced,
authority). and merges with the fourth (the legal apparatus of the state); the
Semi-complex social structure: political power and kinship struc­ state normally exercising a monopoly over law.
ture are clearly differentiated. Political power tends to be central­
ized, on the basis of age, caste, or territorial organization. We may
100 The settlement o f conflicts: traditionaljustice
add a further tie to the internal and internal-external links. Social
Person-to-person relationships are associated with control over
groups are arranged according to better defined criteria than
individuals and enable society to perpetuate itself and regulate
those of semi-elementary societies, and their relationships tend to
conflicts and tension, either in restoring the original state of equi­
be regulated by external links of a quite specific nature, often tak­
librium, or in determining a new one.
ing the form of conventions. In some cases the conventions gov­
Globally, traditional justice is concerned less with applying
ern the groups, in which case they are traditional laws. In other
existing norms than with achieving social equilibrium following
cases they are concluded between groups, at their level, in which
disorder. This general principle, which we may call the traditional
case they take the form of pacts: political, matrimonial, economic,
paradigm of justice, is applied by judicial institutions which vary
etc.
in accordance with the four types of structure elaborated above.
The corresponding legal instruments contain a threefold strati­
Elementary social structure: in these societies interaction is con­
fication: a legal level may be added to the levels of myth and cus­
trolled by law within the group and by force outside the group.
tom, which, functioning in accordance with the principle of
Justice thus operates only within the group. Here there are no
accumulation of sources,10 does not break with myth and custom,
specialized judges, areas of competence, or appeal procedures.
but concentrates on the formulation of precise legal norms, and is
Arbitration and tribunals are absent. The conciliator will attempt
associated with specific institutions: specialized orders in the judi­
to persuade the protagonists to return to peaceful relations: one
ciary, judgement of disputed claims, administrative organization.
party will offer reasonable compensation, which the other will
The law of contract makes its appearance, to be distinguished
accept.
from donations and conferrals. In the area of property law a sys­
Semi-elementary social structure: these societies are familiar with
tem of landholding emerges which determines inter-group rela­
two sources of law: myth and custom. The organization of justice
tions and establishes tenure to land.11
is also dualist in nature. Either it is based on law through myth, in
Complex social structure: some traditional societies conform to
which case the jurisdiction covers the family and conciliation is
this model; political institutions tend to be spatially concentrated
involved; or it is based on custom and the jurisdiction extends to
in an urban context. However, this model is not common in tra­
inter-family relationships and arbitration is employed. Thus
ditional societies, whereas complex structures have been charac­
amongst the Kikuyu (Kenya) two forms of jurisdiction coexist:
teristic of most Western societies since the formation of city-states
the family jurisdiction at the level of the mtvaki, presided over by
in antiquity. Within this structure, kinship influence withers and
the family leader of the extended family, who acts as conciliator;
is confined to family organization, whereas power in the wider
and the clan jurisdiction (kiama), where inter-family litigation is
society is vested in a plurality of organizations dominated by
forms of organization specialized in the exercise of political handled by arbitration.
power, resulting in the appearance of the state. This leads to the Semi-complex social structure: these societies are familiar with
atomization of groups or the official denial of their existence. three sources of law (myth, custom, laws), whence a threefold
Consequently, social ties are redefined by law in a public/private judicial organization: family justice, community justice (or inter­
dichotomy: ties can exist only between individuals and the state family justice), justice meted out by the holders of political power.
or between individuals. Complex social structure is characterized This threefold influence is exemplified by the Dogon (Mali), with
by a fourfold stratification of sources of law: the first two (myth a limited form of government; the Nkomi (Gabon), with a decen-

1*1
 168 Legal Anthropology 169

tralized state; the Wolof (Senegal), with an autocratic state (from 9J

state law (international

a a-a
.5 •C g3 + co
jg -ao .3«
the eighteenth century to the nineteenth). Under various guises,

state law and inter-

conciliation with

through tribunal:
between families
through arbitrati
the first two levels of jurisdiction present the characteristics ■aa Q. f r j S *

group + justice

political justice
justice through
3 § g-s a

jurisdictions)
Organization
defined above.12 If the parties are not satisfied with community uO Q
SO
•wsaa E S'2«Æ
justice, they can appeal to political justice. The actual form politi­ A ^ 2+ ^

of justice
.H’OJ •2'g 3C
cal justice takes will depend on political organization. This can be £ g s trt fi O'
officially expressed in hierarchic administrative institutions. .2, 8 ^ .5. 8 feb.S
co

reliance on written
But political organization can also be expressed unofficially, CO

.2c« g „ W3

marginalization
U Ç-.S o

oldest sources,
Conception of

custom (accessory or replacing of

through the use of parallel institutions, which cut horizontally a 8-30 a

legal system
across the former institutions. This is the case with the justice of •g g °-, °-, 3G
the Dogon brotherhoods: the masked society, consisting entirely B g J? g ■S
■
G G o
2 Ǥ '0.i ss
0-3

forms
3o u*«T3fi fOc 6 o.•”
' (U js
of males, believed to represent the deceased, is the competent rt O rt Oi O
uo "T !

authority for all important disputes, especially those where

Table II.1.2. Social structure, legal stratification and judicial organization

women are involved.

law/convention;
The system of justice in these political jurisdictions operates C CO

+4»+oc -2g .2sy

GO OT3 ca
through tribunals. The judgment must be accepted by all parties. CO
IOlT3- sC ‘gfiyUl 4§>Ë’geu
t&8Ë

Sources

source)
«bfi 2W_fl _
°

of law
In addition to the reparations and compensation which the ^ C> h "> G
O >
S« '
Mw*® ox
offender must pay, or risk an injunction which would further 3 3 3 u O ca o 3 3O8
aggravate his position, there are punishments which can take a

Form of legal
number of forms, determined according to the degree of guilt:
(J

instrument
«6

legalistic-
moral punishment (public disapprobation), corporal punishment CO
o
JJs>

statist
(mutilation), restriction of movement, exile, capital punishment. t
s u3
CO

Complex social structure: in these societies (Western societies

being a case in point), state law is the principal source of law.

external, through
internal-external/
Justice is the official monopoly of the state (‘Nobody can mete

intemal/intemal-
external through

public, national
or international
CO
out their own justice’), whether directly applied by state-con- c i! L
° T^_3

communities
Relationship
o.g S§°

agreements
s a G -°

treaties or
trolled jurisdictions or by other jurisdictions whose competence is

private or
alliances

between
internal/
*3 a.
recognized under certain conditions. Whilst conciliation, media­ u. <U> S
f-S-3
II
tion and arbitration may still exist, the most common form of jus­ .sa §8 2 H
tice involves judges and courts.
The web of relations existing between social structure, levels of
>>IS
w-2 'uy '

powers outside
x J313‘G
So9-'o§ DE,ü° ”2§ o-o

INDIVIDUALISM (plurality of
legal stratification and judicial organization can be summarized in
■ES.&S
ô ’S j-a
Ha n 8 2.0.g

structure
J?£ C■§

complex

COLLECTIVISM kinship)
Table H. 1 .2 “ §12 caa .S-s*!

Social
1 3 gif 9S*oa
In addition to the relationships we are now familar with, Table WOc M
u>
o °
B.g a ss i â oU O Bc O
II. 1.2 contains a new element; it concerns the form of social rela­
tionships favoured by traditional societies - the communal model.
This model is associated with oral forms of law. We will now turn
organization

WRITING,
to its consideration.
Social

OR
TT
 170 Legal Anthropology Traditional Legal Systems 171

III O r a l f o r m s o f l a w a n d t h e c o m m u n a l m o d e l There would thus appear to be grounds for doubting that writ­
Oral forms of law are a means of communication which favour ten forms of law are ‘superior’ to oral forms: far from liberating
particular social relations. These are neither individualist nor col­ humankind, has writing not been an invention which has enslaved
lectivist but communal. it?15 It would appear that the characteristics of oral communica­
tion are suited to the communal model of social relations, where
the individual is not left isolated in the face of a single source of
A: Oral form s o f law
authority, or enslaved by the groups into which that individual is
integrated.
101 The classic approach to oralforms o f law
Classic legal theory has a pejorative view of orally based law,
102 Oral forms o f law and the communal model
which is defined negatively in relation to written law. In our view
If written forms of law emphasize the messages they carry and are
this approach bears all the hallmarks of evolutionism, and should
associated with anonymous social relationships, oral forms stress
not be spared criticism. Whilst the passage from oral to written
the individualization of social interaction. The content of the oral
forms consists of a huge transformation, the question of whether
message is important, but so also are the qualities and position in
this transformation represents progress, relegating oral forms to a
society of the messenger. This individualization of the message
‘primitive’ stage of human thought, is more debatable.
goes hand in hand with the material constraints imposed by the
A reading of history reveals that the advent of writing is often
oral medium. Even with the aid of certain techniques, such as
accompanied by a unitary form of power, religious or secular, the
drummed messages or messages carried by runners or horsemen,
state substituting itself for God, as in our Western societies.14
the spoken word cannot be effective beyond a relatively restricted
Whether this transition represents greater security for the individ­
distance. The groups in question cannot be distributed over too
ual remains to be established.
large an area. The oral medium thus implies a double proximity:
As Jack Goody has demonstrated, writing tends to produce
geographical and social (interpersonal relationships also have to
abstraction and diminish the individual’s involvement in the legal
be close for the spoken message to be received). However, the
process, coinciding with the emergence of a specialist group -
oral medium is not confined to interpersonal relationships. The
jurists - in the interpretation of law. The interpretation of a writ­
constituent groups of a society play a determining role in the stor­
ten text is more difficult than that of an oral source and can easily
ing of the oral message. They, and not a written text, commit the
be manipulated. In oral communication it is always possible to
message to memory. The specialization of this role varies as a
question the speaker whereas the written text cannot speak for
function of social stratification and the political need to store
itself. Furthermore, written forms tend to express norms, wide-
words. Thus the choice for a society between an oral or a written
ranging and general in character, which the same specialized
medium will influence, as well as express, the balance of relation­
body, judges or legal experts, must apply to individual cases.
ships between individuals and groups. Writing has in some cases
Further, legal decisions increase in complexity, since their storage
enhanced the role of the individual (the Roman experience and,
or committal to memory is easier than in oral forms of law. All
by extension, Western law, are examples), in other cases it has
these factors combine to legally dispossess the ordinary person.
enhanced the role of the group (Sumerian law, several Eastern
This trend is often encountered in our societies; as was the case in
systems of law, and Soviet law). Written forms of law allow a
past societies that adopted a written script (the well-known
more direct control over time. They facilitate the articulation of
Roman adage does not suggest that each person is familiar with
power, through their anonymity, and are well adapted to strongly
the law but that they are assumed to be familiar with it). The
ranked complex societies centred on the individual or the group.
depersonalization of law goes hand in hand with abstraction, and
The oral medium would appear, a priori, to be more rudimenta-
sanctions lose their flexibility, unlike in traditional societies.
 172 Legal Anthropology
ry: the oral message is physically restricted in range and is more
difficult to store. Yet this apparent fragility supports and rein­
forces a more balanced social model - the communal model -
where groups and individuals, because of their interdependence,
collaborate with each other rather than oppose each other.
B: T h e com m unal model
The communal model emphasizes pluralism in the exercise of
complementary relationships between communities, groups and
individuals.
103 The communal model and communities
Unlike the individualist and collectivist models, the communal
model seeks to establish balanced relationships between the indi­
vidual and the group: the group is organized in such a way as to
allow individuals to express themselves within it. Social groups in
which this is possible are ‘communities’.
For M. Alliot, the community is defined by three shared ele­
ments.
A shared life: this is observed in a very wide range of domains:
sharing of a common language, ancestors and divinities, the same
space, the same friends and enemies.
A sharing of the sum of specific characteristics’, communities value
particularisms over similitudes, hierarchy above equality.
However, even these particularisms are shared, since they do not
constitute focuses of tension or opposition between the groups in
which they exist. On the contrary these groups see themselves as
complementary. This conviction is articulated on a number of
levels. In religion, God (in sub-Saharan Africa and for the ancient
Greeks) takes the form of different forces, seven or nine of them,
ranked and interdependent. In the case of myth, most of the
foundation myths of communities demonstrate that people can­
not found political society if they are not first differentiated
(whereas many of the classic Western thinkers, Hobbes and the
theorists of the social contract, believed societies could be found­
ed only on similitudes). Socially, each category is dependent on
its neighbour: the peasant, who cannot work metal, needs the
smith, who, unable to work the soil, needs the food the peasant
provides; the same peasant depends on the lord of the earth and
Traditional Legal Systems 173
the lord of rain, who would themselves have no role without the
peasant; in the application of the law of exogamy each lineage
depends on another, etc. Politically, the communal model is pol-
yarchic. In each group there is no single overriding authority, but
a number of authorities which are competent in different areas
(air, earth, sea and fire amongst the Duala of the Cameroon;
earth, waters and the bush amongst the Toucouleur). These
forms of authority are interdependent, avoiding, except in times
of crisis, the dominance of any one authority.
Sharing in decision-making’, each community also defines itself
through sharing the same body of rules which it alone is responsi­
ble for formulating. These rules are in essence customary, since
they emerge from within the community, whereas a law, in the
modern sense of the term, is rather the instrument of domination
of one part of a group over other parts, or of an authority exterior
to the group over the group.
The various communities participate in the complementarist
and polyarchic structure, which prevails in the communal model.
In fact, each person, in the course of life, belongs to a number
of communities, in various guises, against a constantly moving
backdrop. Hence, through marriage, a man creates a new com­
munity, the conjugal couple, which will become the procreative
family. He takes on new responsibilities in the lineage communi­
ties, of which he may one day become chief. But marriage also
results in his leaving, amongst the subsidiary communities, the
age-class of young men, to become a smith or a fisherman, thus
introducing him into another subsidiary community. Marriage
may also terminate his obligations as a client towards a patron,
and qualify him for membership of the village council.
These multiple and shifting appearances of the individual in a
number of diverse but complementary communities effectively
prevent one of these communities from achieving absolute domi­
nance. Moreover, the insertion of the individual into various
groups, whose existence is generally recognized and valued,
places that individual at the heart of a specialized and personal­
ized social network. Whilst writing may not exist, this is not due
to some mental incapacity, but because its corollaries —the gener­
alization and diffusion of the written word, its anonymity - go
against the grain of the communal social system. Finally, the plu­
ralism of these communities ensures that groups cannot subjugate
174 Legal Anthropology
individuals: the communal model operates with individuals, and
not against them.
104 The communal model and the individual
We should first underline the ambiguity of the term ‘individual’.
In our own tradition, the individual is to society as the atom for a
long time was to physics: unsplittable. Roman law, followed later
by Christianity, defined the individual in unitary terms, using the
notion of person. Originally this designated a tragic or ritual
mask, the persona, which became synonymous with the real
nature of the individual, the holder of individual rights and privi­
leges. Traditional African societies prefer a multi-polar descrip­
tion of personality to this unified conception of the individual: a
man is a collection of outwardly exploding and interdependent
elements, temporarily united during an individual life-span, but
constantly liable to dissociation, either self-determined or inspired
by a third party. Thus the Wolof (Senegal) distinguish three fun­
damental principles: the human being (nit) is made up of the
body (garant) and breath (ruu); the spirit (rab)j vital forces (fit).
At death, each principle returns to its source: the body is returned
to the earth and the ruu to God, the rab joins the invisible world
of the ancestors, the fit may remain attached to the lineage,
through which an ancestor may eventually be reincarnated.
The conjunction between pluralism and complementarity is
thus affirmed by the individual, through the community, to the
society as a whole. It is this conjunction which controls the rela­
tionships between individuals and groups and constitutes what we
may term the African realm of belief.
The principle is a simple one: only individuals representing
groups can play a part in legal life, as a function of the recognized
attributes of the group to which the individual belongs. The
group will have its own sphere of influence, depending on its
position in the social hierarchy, and only its representative can
play a part in legal life: the king at the level of the kingdom, for
matters affecting the state; the head of the lineage in the realm of
kinship; the village headman in the realm of local administration,
etc. Each representative can enter into contact with a neighbour­
ing group only through the representative of that group. A king
may treat only with a king.
Traditional Legal Systems 175
This belief system has two corollaries.
The first is the functional attribution of status: an individual
cannot become or remain the representative of one of the groups
to which that individual belongs unless able fully to accomplish
this role. An a priori assessment of competence can be made
through forms of selection, rites of passage, resulting in a gradual
initiation. A posteriori, the lapse in status is confirmed by the
withdrawal of the function the individual fulfilled.
The second is the reciprocity of rights and obligations. The
more important the rights which the representative of a group
enjoys, the heavier the obligations.
These are the principal mechanisms which control the legal
existence of traditional societies in sub-Saharan Africa. In the
following chapters, we will examine their operation more close­
ly-
NOTES
1 See below, no. 103.
2 See Histoire de la famille, ed. Burgière et al., Vol. 1 (op. cit.,
below, no. 144), pp. 29-32, for Radcliffe-Brown’s theory on
avuncular relations, and C. Lévi-Strauss’s criticisms.
3 ‘If we view dreams as nocturnal flickering which allows
thought to remain embedded in the obscurity of slumber, then
the substructure of myths is the shadow the spirit casts over
itself to endure the light of day, without being blinded’
(Smith, ‘La nature des mythes’, op. cit., below, no. 105, p.
729).
4 See below, no. 106.
5 Cited by K. Rasmussen, ‘Intellectual culture of the Iglulik
Eskimos’, Reports of the Fifth Thule Expedition, 8, 1-2
(Copenhagen, 1931): 502.
6 We still, in our modem societies, swear on the head of a loved
one, and we do not make light of cursing someone we resent.
Also oaths are still used in our legal systems.
7 See above, no. 92.
8 After Le Roy, ‘Méthodologie de l’anthropologie juridique’
(op. cit., above, no. 89), p. 70.
9 Concerning legal fictions in traditional African law see for an
overview T. Olawale Elias, La Nature du droit coutumier
176 Legal Anthropology
africain (Paris, Présence africaine, 1961), pp. 195-204; trans­
lated into English as The Nature of African Customary Law
(Manchester, Manchester University Press, 1956).
10 See above, no. 95.
11 See below, no. 128.
12 For further details on the organization of these jurisdictions
see E. Le Roy, ‘Justice africaine et oralité juridique’, Bulletin
de l’Institut français d’Afrique noire, 36, series B, 3 (1974):
583-7.
13 After ibid., p. 574.
14 ‘And perhaps in more complicated ways, relating to obsoles­
cence and record-keeping, to theodicity and the problem of
evil, is the increasing pre-eminence of a high God’: The Logic
of Writing and the Origin of Society (Cambridge, Cambridge
University Press, 1986), p. 44.
15 This would appear to be the view of Lévi-Strauss: ‘After elimi­
nating all other criteria which have been put forward to distin­
guish between barbarism and civilization, it is tempting to
retain this one at least; there are peoples with, or without, writ­
ing; the former are able to store up their past achievements and
to move with ever-increasing rapidity towards the goal they
have set themselves, whereas the latter, being incapable of
remembering the past beyond the narrow margin of individual
memory, seem bound to remain imprisoned in a fluemating
history which will always lack both a beginning and any lasting
awareness of an aim. Yet nothing we know about writing and
the part it has played in man’s evolution justifies this view. . . .
During the neolithic age, mankind made gigantic strides with­
out the help of writing; with writing, the historic civilizations of
the West stagnated for a long time. . . . The only phenomenon
with which writing has always been concomitant is the creation
of cities and empires, that is, the integration of large numbers
of individuals into castes or classes. Such, at any rate, is the
typical pattern of development to be observed from Egypt to
China, at the time when writing first emerged: it seems to have
favoured the exploitation of human beings rather than their
enlightenment. . . . My hypothesis, if correct, would oblige us
to recognize the fact that the primary function of written com­
munication is to facilitate slavery.’ (C. Lévi-Strauss, Tristes
Traditional Legal Systems 177
Tropiques, trans. J. Weightman and D. Weightman (London,
Picador classics, 1989), pp. 391-3)
Also: ‘Writing appeared in the history of humanity between
the third and fourth millennia before our era, at a time when
humanity had already made its most essential and fundamen­
tal discoveries: not before but after what is called the “neolith­
ic revolution”.’ (G. Charbonier, Entretiens avec C. Lévi-Strauss
(Paris, Plon-Julliard, 1961), pp. 30-1); translated into English
as Conversations with Claude Lévi-Strauss, trans. J. Weightman
and D. Weightman (London, Cape, 1969).
FURTHER READING
105 General bibliography
For general discussions of traditional laws in black Africa see the
following. T. Olawa Elias, La Nature du droit coutumier africain
(Paris, Présence Africaine, 1961), translated into English as The
Nature of African Customary Law (Manchester, Manchester
University Press, 1956), is useful in the many examples it furnish­
es; however, the theoretical framework is now dated. More recent
are: M. Alliot, ‘Institutions privées africaines et malgaches’, 2 vols
(unpublished, Paris, LAJP, 1970-1), pp. 3-21; E. Le Roy, ‘Cours
d’histoire des institutions d’Afrique noire’, document péda­
gogique n o .l, Méthodologie de l’anthropologie juridique (unpub­
lished, Paris, LAJP, 1976), pp. 39-77. The theories of E. Le Roy
can be more easily consulted in E. Le Roy, ‘L’expérience
juridique autochtone de l’Afrique noire contemporaine et le trans­
fert des connaissances juridiques occidentales’, dans Domination
ou partage? Développement endogène et transfert de connaissances
(Unesco, 1980), pp. 93-118. See also other more readable works
which serve as a good introduction: R. Verdier, ‘Civilisations
agraires et droits fonciers négro-afticains’, Présence Africaine
(1960): 24-33; R. Verdier, ‘Une esquisse anthropologique des
droits de tradition orale d’Afrique noire’, Revue et synthèse,
118-19 (1985): 301-11; P.-L. Agondjo-Okawe, ‘Les domaines
d’application des droits traditionnels’, in Encyclopédie juridique de
l’Afrique, Vol. I, L ’Etat et le droit (Dakar, Nouvelles Editions
Africaines, 1982), pp. 393-421. Concerning the sacred and its
relationship with law there is: Sacralité, pouvoir et droit en Afrique
178 Legal Anthropology Traditional Legal Systems 179

(Paris, Editions du CNRS, 1979, 228 pp.); Prince Dika Akwanya Begriffsgeschichte, 12 (1968): 166-205; E. Le Roy, ‘Legal para­
Bonambela, ‘La Sphère du sacré en Afrique noire’ (thèse de 3e digm and legal discourse: the case of the law of French-speaking
cycle en Anthropologie religieuse, Université de Paris VII, 1971, black Africa’, International Journal of Sociology of Law, 12 (1984):
357 pp. unpublished). 1-22; R. Verdier, ‘Statique et dynamique des droits des civilisa­
On the sources of traditional law, a very clear synthesis exists in tions de l’oralité’, Archives de philosophie du droit, 39 (1984);
E. Le Roy and M. Wane, ‘La formation des droits “non éta­ 251-9.
tiques’”, in Encyclopédie juridique de l’Afrique, Vol. I, L ’Etat et le On the communal model: M. Alliot, ‘Modèles sociétaux: les
droit (Dakar, Nouvelles Editions Africaines, 1982), pp. 353-91. communautés’ (unpublished, Paris, LAJP, 1980, 7 pp.); E. Le
For an overview of myth: P. Smith, ‘La nature des mythes’, in Roy, ‘Communautés d’Afrique noire et protection des droits de
L ’Unité de l’homme, ed. E. Morin and M. Piatelli-Palmarini l’individu face au pouvoir’, in L ’individu face au pouvoir, forth­
(Paris, Le Seuil, 1974), pp. 714-29. As regards custom see in coming (1988) in Recueils de la société Bodin (Brussels, Dessain &
particular: J. Poirier, ‘L’originalité des droits coutumiers de Tolra).
l’Afrique noire’, in Droits de l’Antiquité et sociologie juridique.
Mélange H. Lévy-Bruhl (Paris, Sirey, 1959), pp. 485-95; E. Le
106 The evolution of traditional law
Roy, ‘L’esprit de la coutume et l’idéologie de la loi’, symposium,
Contrary to an entrenched prejudice, traditional law is not
La Connaissance du Droit en Afrique (Brussels, 2-3 December
immutable: no society can avoid change, whether it rejects or
1983), Académie royale des sciences d’outre-mer (1985), pp. 210—40;
accepts it. Even myth is reviewed and reinterpreted over time in
L. Assier-Andrieu, ‘Le juridique des anthropologues’, Droit et
the succession of stories, proverbs and rituals in which it is
Société, 5 (1987): 90-4; K. Adjamagbo, ‘Les Successions au
expressed. Change often stems from pressure outside the society.
Togo’ (thèse de 3e cycle Droit, Paris I, unpublished, 1986), pp.
This is the case when an indigenous population and a newly
130-70.
arrived people have to coexist on the same soil. Either the new
On political structures, see the following selection. E. Le Roy,
arrivals respect the laws of the existing occupants, an alliance is
‘Cours d’Histoire des institutions africaines: les institutions poli­
formed between the two groups and coexistence occurs over land-
tiques’ (unpublished, Paris-Brazzaville, LAJP, 1971-2) is a good
holding and political influence; or, more rarely, the new arrivals
survey of African political systems and their relationship with
may behave as conquerors, annexation occurs, the indigenous
legal systems. Also: G. Balandier, ‘Stratifications sociales “primi­
people lose control over their land, are subjugated, pay rent, or
tives” et pouvoir politique’, in Perspectives de la sociologie contempo­
owe labour services. In the latter course of events an autonomous
raine. Hommage à G. Gurvitch (Paris, PUF, 1968), pp. 3—20; R.
polity is brought into being, whereas originally territory, kinship
Motta, ‘Aspetti tecnico-giuridici del potere nelle società di inter­
and power were all associated. This autonomy can be intensified
esse etnologico’, in Seminario di Scienze antropologiche, Istituto di
and lead to the creation of kingdoms and states, usually conse­
Antropologia di Firenze, Vol. 6 (1984), pp. 39—46; J. Poirier, ‘Les
quent on immigration. In this case the state does not remove all
formes monarchiques du pouvoir dans l’Afrique pré-coloniale’,
political or legal influence from kinship communities, but consid­
Recueils de la société Jean Bodin, Vol. 20, La Monocratie (Brussels,
erably reduces their influence.
1970), pp. 177-205.
The introduction of the state and state law into a traditional
Oral forms of law: the main source is E. Le Roy, ‘Justice
society is thus not always due to Western colonization. Sub-
africaine et oralité juridique. Une reinterpretation de l’organisa­
Saharan Africa contained autonomous states. On the other hand,
tion judiciaire “traditionelle” à la lumière d’une théorie générale
this was not the case amongst Inuit societies. A great deal
du droit oral d’Afrique noire’, Bulletin de l’Institut français
depends on the particular historical conditions of each society and
d’Afrique noire, 36, series B, 3 (1974): 559-91. See also: R.
each large geographical area. Meanwhile, the changes introduced
Schott, ‘Das Geschichtbewusstein schriftloser Vôlker’, Archiv fur
180 Legal Anthropology

by the state in its Western guise were more abrupt and less easily 2
reversed than those of the indigenous states. This is because the
Western state introduced a different economy, centred on the
production of material goods, reifying social and property rela­ L aw in Traditional Societies
tionships and stripping them of their sacred content.

We cannot claim to be exhaustive in our description of law in tra­

ditional societies, even in restricting ourselves to sub-Saharan
African societies. We have made a selection which has been deter­
mined by the present state of knowledge in legal anthropology in
certain areas of social life. In this chapter we will consider kinship
ties, property and contractual obligations.

I KINSHIP TIES
In Genesis, when the Shechemites wished to unite with the
descendants of Abraham, their leader Hamor tells them: ‘And
make ye marriages with us, and give your daughter unto us, and
take our daughters unto you. And ye shall dwell with us: and the
land shall be before you’.1 Many traditions repeat the experience:
marriage exchange underpins society. But this exchange is also a
renunciation. Furthermore, in the perfection of paradise which fol­
lows our own world, it will no longer be necessary. Jesus replied to
some Sadducees who doubted in the resurrection: ‘The children of
this world marry, and are given in marriage: But they which shall
be accounted worthy to obtain that world, and the resurrection
from the dead, neither marry, nor are given in marriage: Neither
can they die any more: for they are equal unto the angels.’2 On the
other side of the world, this is echoed by the Andaman myth3:
‘Future life will be a repetition of life on earth, except that the
world will stay young, illness and death will be unknown, and no
one will marry or give themselves away in marriage.’
Thus society and family are indissolubly linked in mythical rep­
resentations, from their birth to their extinction. What happens in
real societies?
There is no kinship structure common to all societies: we know of
eight hundred forms, which fall into several main categories.
However, similar kinship terms do not always indicate similar
 182 Legal Anthropology Law in Traditional Societies 183

ties, they vary from case to case. For this reason we must first 108 Kinship terminology
explore several general concepts regarding kinship terminology. Lewis Morgan isolated the main area of difficulty in penetrating
We will then be able to describe the two axes along which all fam­ the diversity of kinship terminology. He noticed that the same
ilies centre themselves: filiation and alliance. Finally, we will situ­ term could apply to different genealogical ties, and conversely a
ate the conjugal couple within these kinship structures. single tie could be expressed through several terms. The former
case we call a classificatory terminology: the same term can be
used to describe the father and the father’s brothers, clearly dis­
A: Term inology and terminological systems in kinship tinguishing them from the mother’s brothers, whereas another
All societies use particular terms to designate people related term could describe the mother and her sisters, clearly distin­
through kinship ties and often give them different meanings. guishing them from the father’s sisters. Thus kin in direct line of
Several main terminological systems can be inferred from the use descent and collaterals can be conflated. The latter case we call a
of these terms and the kinship ties they describe. descriptive terminology: the same genealogical tie can, from a
concern for greater precision, be described through the use of sev­
107 Graphic conventions used in the representation of kinship ties eral terms. Thus the children of ego are sons or daughters; their
Before describing kinship terms and the systems into which they parents are distinguished as husband and wife; the children will
have been organized, we will note the basic graphic conventions be brother and sister. Kinship ties which are one degree further
I used in representing kinship ties.4 Anthropology has made very removed are expressed by compound versions of basic terms: in
precise descriptions in this area; sometimes they take a quasi- our own societies, the suffix ‘grand’ (grandfather or grandmother)
I mathematical form (Figure II.2.1). adequately describes a second degree of removal in the ancestry
of ego. Thus collateral and lineal kinship can be distinguished. In
practice the two kinds of terminology are used concurrently. Thus
Sex male sex Q female sex □ unspecified sex
in our societies, based on the nuclear family, the terms
‘father’/'mother’, ‘son’/'daughter’, ‘husband’/‘wife’ are descrip­
tive: they describe the same genealogical position. Since we attach
Marriage L. where = represents an alliance less importance to collaterals, the terms describing them are, in
4 9 married couple contrast, classificatory. The term ‘nephew’ can be applied equally
I to the son of ego’s brother or sister, to the son of the brother or
Siblings example brother and sister the sister of ego’s spouse, or to the son of ego’s cousin. Similarly,
the term ‘cousin’ applies both to close cousins (first cousins) and
I
Filiation example 4 ^ _ 9 children of a couple to distant cousins.
o 2 s Generally speaking, the use of kinship terminology is more
complex in traditional societies than in modem societies. This
In all representations of kinship, the individual
K complexity does not stem from a particular taste for complication.
V
ego is the point of departure - ego - from which ties
are derived.
It relates essentially to the fact that in traditional societies the
family plays a much more important role than in modem soci­
Death is represented by a diagonal line through a symbol, eties. The former societies thus require a more extensive vocabu­
thus: A 0 171 ^ lary and a more flexible grammar than the latter. When a woman
calls a particular kind of cousin ‘brother’ she indicates that mar­
Figure II.2.1 Basic graphic conventions in representing riage, with all the economic and political consequences which
kinship ties flow from it, is not possible. Conversely, the same woman may
i
I
184 Legal Anthropology Law in Traditional Societies 185

call another kind of cousin ‘husband’, because marriage is possi­ describes the mother and her sisters. On the other hand, in distin­
ble. In other words, biological links account for only one aspect of guishing between the following two groups, the father’s sisters
kinship ties. and the mother’s brothers, each of them will be designated by a
Kinship terminology can also indicate hierarchies. A kinship tie different term, even though the genealogical tie is, biologically,
can be expressed in different ways depending on the context and exactly the same in both cases.
the position of the person using the term. There are different
modes of address: parents are addressed in a certain way. Thus in
our societies, in most cases, a child will address its parents by
using diminutives (Mum, Dad). For their part, parents will call father’s father’s father mother mother’s
brother sister brother
A
their children by their first names, and not address them as son or
daughter. There are also terms of referral: certain terms will be A "A - A ~ t-(J

X*loL &l o X #
used to designate parents when we talk about them. In our soci­
eties, children refer to their parents as their father and mother (or
their mum and dad), and parents refer to their son or daughter.
This example demonstrates how distinctions between terms of
children children brother
a
ego sister children children
address and referral can be significant in particular aspects of kin­ of of of of
ship ties: from the children’s standpoint, the terms do not vary, father’s father’s mother’s mother’s
but in the case of the parents, they vary according to the context, brother sister brother sister
and the use of the personal name (first name) in address indicates
the position of superiority which the parents wish to maintain. In
contrast, in our own age, when parents wish to attenuate or abol­ parallel cousins of ego ^ J1 cross-cousins of ego A
(J) J1
ish this notion of dominance, they encourage their children to
address them by their first names. F igure II.2.2 Ties in traditional societies
Such variations in the use of kinship terminology might suggest
an uncontainable diversity in terminological systems. This is not This distinction will produce a further one in the next generation:
the case, since several main categories emerge. that of parallel cousins, the offspring of the father’s brothers
(patrilateral cousins) or the mother’s sisters (matrilateral cousins),
109 "typology o f terminological systems and cross-cousins, offspring of the mother’s brothers or the
The most satisfactory system yet devised was introduced in 1949 father’s sisters. Once again, although biologically there is no dif­
by George Peter Murdock. On the basis of a comparative study ference in these types of cousin, the kinship ties established on
carried out in 250 societies distributed throughout the world, this genealogical basis will be interpreted in very different ways.
Murdock identified the main categories of terminological systems, Parallel cousins are considered as consanguine and will be called
taking, as a point of departure, the terms used by ego to designate ‘brother’ or ‘sister’, ruling out marriage, since it would be consid­
siblings, parallel cousins and cross-cousins.5 The last two cate­ ered incestuous. Cross-cousins are considered as allied, and their
gories are unknown in our societies, whereas they are of consider­ marriage is not only possible - it is not incestuous —but actually
able importance in traditional societies. We will thus describe recommended. Thus in most societies parallel kinship is consid­
these before studying Murdock’s typology. ered an obstacle to marriage whereas cross-kinship encourages
Figure II.2.2 expresses the following ties.6 The father and his marriage. Since the two kinds of relationship are biologically
brothers are designated by the same term; similarly a single term identical, the basis of their distinction can only be cultural.
Claude Lévi-Strauss believes that they follow the law of
186 Legal Anthropology Law in Traditional Societies 187
exchange7: a society cannot exist and perpetuate itself unless its
constituent groups exchange members of their respective families Eskimo G * [P = X] Key G siblings
in marriage. The success of a marriage depends on one of the

►a
P parallel cousins

X
Hawaian

ii
ii
0
partners having forgone their original wish to marry a brother or X cross-cousins
Iroquois [G = P] * X
sister, giving them to another group, and receiving, in turn, a hus­ Xm matrilateral cousins
band or a wife. Cross-cousins stem from this form of marriage: in /rX m (children of the
the case of a patrilateral cousin, ego’s father has relinquished one Omaha [G = P]* mother’s brother)
of his sisters to a third party, and the child of this union will be ^ X p Xp patrilateral cousins
ego’s cousin; in the case of a matrilateral cousin, ego’s mother >rXp (children of the
will relinquish one of her brothers to a woman belonging to Crow [G = P]* < T father’s sister)
another group. Since these cross-cousins are born of marriages ^ •X m
where the rule of exchange operates, cross-cousins can, in turn, Sudanese G * P * Xp * Xm
marry each other. The very same reasoning explains the prohibi­
tion of marriage between parallel cousins: in the case of a patrilat­
(The name given to each main category applies to the society
eral cousin, ego’s father has not relinquished a possible partner,
where it was first described, but it may apply elsewhere to very
since his brother is of the same sex; in the case of a matrilateral
different societies.)
cousin, ego’s mother has not relinquished a possible partner,
since her sister is of the same sex. Figure II.2.3 Patrilineal and matrilineal kinship ties
The same information can be expressed in a slightly different
both called mother, and the father’s brother and the mother’s
and more concise form in the observation that the distinction
brother are called father). Iroquois nomenclature identifies paral­
between cross-cousins and parallel cousins is a consequence of
lel cousins, whether patrilateral or matrilateral, and brothers and
unilineal filiation. In this form of filiation, both the uncles on the
sisters, contrasting them with cross-cousins in the same manner
father’s side and the father are considered to hold the same
as we have described above. Sudanese terminology distinguishes
genealogical position in regard to ego (patrilineal descent); the
between patrilateral and matrilateral cousins in assigning a partic­
aunts on the mother’s side hold the same position as ego’s mother
(matrilineal descent). We can well understand that the offspring ular term to each cousin (normally descriptive), a different term
of marriages between these uncles on the father’s side and aunts from that used for brothers and sisters. Crow and Omaha systems
are identical in that they treat parallel cousins in the same way as
on the mother’s side are considered as brothers and sisters, and as
brothers or sisters. However, the Crow system is matrilineal, and
a consequence cannot marry.
the Omaha patrilineal: in the former, ego will make clear distinc­
However, not all societies attach the same importance to these
tions amongst the matrilateral kin, whereas patrilateral kin, with
two forms of kinship, as Figure H.2.3 demonstrates.8
whom ego has less contact, will be combined in the same catego­
The Eskimo category is the same as that prevailing in France
ry. We should note that a further system of terminology is theo­
today: brothers and sisters are distinguished from cousins, but
retically possible, where first cousins and cross-cousins are treated
there is no distinction between parallel and cross-cousins, no
together, and distinguished from parallel cousins ([G = X] * P).
more than between patrilaterals and matrilaterals. This system
In our present state of knowledge, it would seem that no society
enhances the role of the nuclear family, the heart of a vast body of
has adopted this solution.
cognatic relations. In contrast the Hawaian system enhances the
These then are the categories of kinship terminology. However,
role of the extended family: the paternal and maternal side are
kinship originates in the family, created from lines of filiation
united, all the members of each generation are designated by the
cemented by marriages.
same term (for example, the father’s sister and mother’s sister are
188 Legal Anthropology
B: Systems o f filiation
Theoretically, the vertical axes of the family reach to infinity, both
stretching far into the past, and projecting into the future. In
practice this is not the case. All human societies adopt a cut-off
point in their description of close kinship, at the level of ego’s
great-grandparents, beyond which reside ancestors or gods. We
may conclude that in both oral and literate societies close kin are
limited to those whom ego has known personally (in our societies
the horizon of memory hovers between grandparents and, more
rarely, great-grandparents). However, ancestors, as we have seen,
are ever present amongst the living. Even if the memory of their
life on earth passes after a few generations, the resulting genealo­
gies are undiminished in their importance.
There are several ways of defining kinship. In common with M.
Alliot we will distinguish between unities and groups of kin,
before studying the way in which kin inherit possessions.
110 Kinship entities: kin groups ['parentèles’]
Kinship entities are to all intents and purposes made up of paren­
tèles [parentèles, parentales, ‘kin groups’: TN]. The parentèle com­
prises all those persons an individual recognizes as kin. Those
included will vary: the parentèle may include those with specific
degrees of consanguinity, and exclude those linked by marriage; it
may include both categories; it may include some kin by mar­
riage, and reject others. The members of a parentèle are thus
always related to ego, but depending on the kin group they are
not always interrelated. Furthermore, the parentèle includes fewer
kin than other kinship systems, such as lineages. Finally, this
assemblage has only an ephemeral existence. It is centred on the
individual and the parentèle disappears with the individual, it is
not transmitted to his or her descendants. The restricted charac­
ter of the parentèle is accentuated by the way proximity of kinship,
normally by degree, is calculated.
The number of degrees separating two relations is equal in
direct line to the number of generations separating the ascendant
from the descendant, and, as regards collaterals, to the sum of
degrees which, in direct line, separates each of them from a com­
mon progenitor (father and son are first degree kin; grandfather
and grandson, second degree; uncle and nephew, third degree).
Law in Traditional Societies 189
The individual is thus at the centre of a circle of kin, co n fla tin g
collaterals, ascendants and descendants, and arranged in degrees
of increasing remoteness (the circle of first degree kin consists of
ego’s children and ego’s father and mother; in the second degree,
that of ego’s brothers and sisters, grandchildren and grandpar­
ents; in the third degree, that of ego’s nephews and nieces, uncles
and aunts, great-grandchildren, great-grandparents, etc.) Thus an
individual may possess among his or her kin of the same degree
individuals who are not themselves related by kinship ties (a
great-grandmother on the father’s side has no kinship tie with an
uncle on the father’s side). Furthermore the calculation of degree
includes as kin those who, genealogically remote, do not belong
to the same living community (ego’s uncles and aunts have kin­
ship ties with ego’s great-children). These situations are not aber­
rations: they have their own logic, the logic of kinship entities in
which cohesion is feeble and ephemeral. Thus these kin groups
are very often a feature of modem societies, marked by individu­
alism and the influence of the state, whose ends are suited by the
existence of family groups with little coherence. However, paren­
tèles can borrow certain characteristics from lineage systems: when
we draw up genealogies in a search for our roots we reconstitute
and identify with a kinship group descended from a common
ancestor. Similarly, the transmission of a name is patrilineal, even
if this principle is now weakened (matri-centring of a family fol­
lowing, in practice, a divorce). The 1986 law [in France] allows
children to bear the mother’s and the father’s name side by side.
However, lineage structure, a characteristic of kinship groups,
generally plays a much more important role in traditional societies.
I l l Kinship groups: clans, ‘lignées%lineages
In contrast to kinship assemblages, all the individuals belonging
to a kinship group are interrelated because they are all descended
from a common ancestor, though distant or even mythical.
Depending on the position of this common ancestor, will also be
determined the extent of the vertical line of descent, from the clan
to the ‘lignée’ [lignée: living members of ego’s lineage] by way of
the lineage, as Figure II.2.4 demonstrates."
Whichever dimension we employ in these systems, the term ‘fil­
iation’ is not synonymous with descendance. In a unilinear sys-
190 Legal Anthropology
Law in Traditional Societies 191

at any given time, the descendants of a founder live. Lineages

A mythical
play a vital role in many traditional societies. We must thus dis­
ancestor tinguish between the different principles of filiation which they
incorporate. They are summarized in Figure II.2.5.10
The kinship ties of a male ego follow the agnatic kinship system.
A real ancestor,
deceased
A Amongst his four grandparents, ego has ties only with his paternal
grandfather. Female descent in the father’s line is included in kin­
ship, but none of these offspring is included in the patrilineal kin­
ship of ego.

real ancestor,
living
clan (North Africa is dominated by patrilineal descent; in sub-
Saharan Africa and Madagascar, societies are sometimes patrilin­
eal, sometimes matrilineal, rarely bilineal.)
lineage The role of lineages is fundamental in societies where political
lignée
authority and kinship authority are undifferentiated.
(family)

Î
Figure II.2.4 Lignée, lineage, clan
Consequently, in these societies, kinship is limited to the
genealogical community defined by descendance and marriage
alliance (in the absence of political authority, this forms an ade­
quate framework for society). Kinship groups are also differentiat­
ed by the sex of the ancestor and the nature of the tie involved.
tem, the child is the descendant of both parents, but is filiated to Either all the descendants of both men and women are consid­
only one of them: the father in a patrilineal system, the mother in
a matrilineal system (whereas in parentèles, filiation is replaced by
descendance: both paternal and maternal kin are included). Ô , ^ father’s Ài father’s father
father’s father’s
The ‘lignée’ is comprised of the descendants of a living ancestor. father’s sister brother
The clan is the vertical axis at its longest. It brings together the
descendants of a real ancestor, alive or deceased, with a mythical rfather’s
ô À rô i L
father’s father
i
father’s
ancestor who is often animal or vegetable rather than human. parallel cousins sister brother
The clan is thus based on mystical kinship, whereas the family on father’s side
and the lineage are based on biological kinship ties. Clans often er Ô i Ô i k AL i k. Ô
have names with animal or vegetable associations, through which O-So 0 sister ego brother ego’s paternal

l1sa*s
a5 *« cousins on
they identify themselves and can be distinguished from other clan S S3
6 i Li
-i $3 father’s side
groups, in conjunction with totemic beliefs. uë ,d koÆ Ô i L Ô iL Ô 8j
Lineages bring together the descendants of a real deceased CO *04
« CO
1 - ego’s brother’s I?
•a-s
OS
6 L 6 JL
ancestor, and occupy an intermediary position between families « a children children
and clans. Their genealogical extent varies from society to soci­ J î •§
L a *2 Lô
e g o 's son’S
k A
brother’s
ô
T3 "3
6*2
ety: it can run to anything from three to ten generations. Lineages children son’s
are not only based on time and filiation, they also have a spatial children
dimension: in the same way as an ancestor is identified with each ~i brother and sister
men O women
lineage, so each lineage is based on a lineage territory, on which,
F i g u r e I I .2 .S P a trilin ea l filia tio n
 192 Legal Anthropology Law in Traditional Societies 193

\ A '-.O Ù A O /
patrilineal \ /'m atrilineal
filiation
AA N
'\ V
✓ tN
/ O ✓ /
//
filiation

\ Ày \Çg'o
bilineal filiation

Figure II.2.7 Bilineal filiation

and many South-East Asian societies). A child does not belong to
its father’s lineage and will inherit nothing from him; ‘paternal’
authority is exercised by the uterine uncle, the mother’s brother.
There is an important distinction to be made between matrilineal
filiation and matriarchy: most matrilineal systems are patriarchal,
A men • women |-------- 1 brother and sister
in so far as inheritance of property and status is through the uter­
ine uncle to the mother’s children, and not from the mother to
her daughters. In other words, whilst this form of filiation takes
Figure II.2.6 Matrilineal filiation
women as a reference point, it operates to the benefit of men; the
Kinship ties of a male ego, through five generations, follow­
uncle on the mother’s side is the head of the family, authority
ing maternal kinship system. Amongst his four grandpar­
continues to reside in men and their brothers. The low profile of
ents, ego has ties only with his maternal grandmother. Male
the husband accounts for the frequency and ease of divorce in
descent in the mother’s line is included in kinship, but none
matrilineal societies: amongst the Shoshone (American Indians),
of these male offspring are included in the matrilineal kin­
a wife wishing to be separated from her husband has only to put
ship of ego.
his belongings outside the hut.
Patrilineal filiation is encountered in both traditional and mod­
ered to belong to the same community, and filiation is thus em societies. According to Claude Lévi-Strauss11 it tends to pre-
described as undifferentiated, or kinship ties are determined by
the sex of the ancestor, and may be patrilineal, matrilineal, or bilin­
A A= o
i
eal.
Unilineal filiation occurs very frequently in both its forms: 6
matrilineal and patrilineal. In the case of matrilineal filiation, kin­
ship ties operate through women, determining both inheritance
and status (the system is encountered amongst the Nayar (south­
ern India), the Minangkabau (Indonesia), the Trobriand islanders F i g u r e I I .2 .8 C o g n a tic or u n d iffe r e n tia te d filia tio n
(Melanesia), the Ashanti (Ghana), the Bantu (Central Africa)
 194 Legal Anthropology
dominate in societies where political authority is differentiated
from kinship authority and masculine political authority does not
readily coexist with matrilineal kinship organization. In essence,
patrilineal filiation obeys the same rules as matrilineal filiation,
with an inversion of the sexes. There are differences, however.
The lack of equilibrium between the two systems stems from the
fact that men attempt to assert their dominance in all cases. This
is easier in the patrilineal case since they are all grouped together,
whereas the matrilineal system brings together consanguine men
and women. In the patrilineage, men exercise a dominant role
over their wives, because they reproduce the lineage. In the matri-
lineage, men strive to retain their sisters because they produce the
children of the lineage. In the patrilineal system, the bride-price
(paid by the parents of the husband-to-be to the parents of the
wife-to-be) is often greater than in matrilineal systems where,
because the wife can more easily obtain divorce, it is not in the
husband’s interest for the bride-price to be too high. Finally, and
most crucially, the choice of residence after marriage has different
repercussions depending on the kind of filiation. There are a
number of possible options:
patrilocal residence: the couple lives with the patrilineal kin of the
husband;
virilocal residence: the couple resides where the husband lived
before the marriage;
matrilocal residence: the couple lives with the wife’s matrilineal
kin;
uxorilocal residence: the husband lives where the wife lived prior
to marriage;
avunculocal residence: the couple lives with the wife’s brothers;
‘natolocal’: the husband is only a sexual partner, who does not
reside with his wife (as amongst the Nagyar); the wife, her
brothers, her sisters and their children stay in the village where
they were bom;
bilocal residence: the couple is free to install itself either with the
husband’s parents or with the wife’s parents, the choice often
hinging on economic factors;
alternate residence: the residence is virilocal and uxorilocal, or
patrilocal and matrilocal.
Law in Traditional Societies 195
In principle, the matrilineal system should act in favour of
matrilocal and uxorilocal residence, and the patrilineal system in
favour of patrilocal and virilocal residence. However, the two
arrangements are not exactly symmetrical. In the latter, husbands
maintain authority in their families, whereas the opposite applies
in the former, where authority resides with the wife’s brothers and
rivalry can spring up between the husband and the wife’s broth­
ers. This rivalry can be accentuated by the form of residence.
Such rivalry cannot exist in the patrilineal, patrilocal, virilocal res­
idence models, nor in a third case where there is a combination of
a matrilineal system and patrilocal or virilocal residence. In this
case the husband no longer lives with his wife’s brothers, even if
they are his social superiors.
This explains two factors. First, matrilineal filiation and
matrilocal residence are rarely encountered together. Second,
matrilineal filiation, even when it initially involves matrilocal resi­
dence, very often changes to patrilocal residence12: even if her
husband is in her eyes a stranger, a wife will leave her home to
live with him. In both matrilineal and patrilineal systems, the wife
is no more than a representative of the male line, a position which
is emphasized in the inferior position of the woman in most
human societies. Lévi-Strauss has clearly summarized these
observations: ‘matrilineal filiation is the hand of the father, or the
wife’s brother, which reaches as far as the brother-in-law’s village.
. . . Behind the oscillations in the mode of filiation, the extent of
patrilocal residence demonstrates the basic asymmetry between
the sexes, which characterizes human society.’13
Finally, we should draw attention to the fact that lineages can
be redeployed. Favouring one line of filiation accentuates the
effects of demographic fluctuations between the sexes. Polygamy
1 the creation of equal segments 2 derivation
14
F i g u r e I I .2 .9 T h e p r o c e s s o f s e g m e n ta tio n
 196 Legal Anthropology
and adoption can remedy the situation, particularly when the
favoured family is threatened with extinction (dearth of male
descendants in a patrilineal lineage). However, the opposite can
apply; lineages can become too large. Segmentation occurs, which
can operate in two ways: either the lineage divides into two social­
ly equal halves, or a segment becomes detached and is considered
as inferior. Segmentation can occur relatively easily in patrilineal
societies: each son or brother has only to find a wife to found a
family. In a matrilineal system, the brothers who leave with their
sisters must also find husbands. Clans can develop closer relation­
ships between each other, either on the basis of kinship, or in a
common cause (war, ceremonial, etc.). The merging of several
clans is called a phratry.
Bilineal filiation was discovered in 1924 by Radcliffe-Brown:
each lineage has one or more specific attributes. The Yako
(Nigeria) are a good example of this mechanism. Property is
transmitted via patrilineages, whilst movable goods are transmit­
ted through matrilineages (that is, through mothers’ brothers).
Undifferentiated or cognatic filiation is a solution which contrasts
with the former: membership of a kinship group is not deter­
mined by sex. The kinship group includes all the descendants of
an individual who may inherit from any ascendants. Ego is no
longer a member of one or two lineages, but of as many circles of
kinship as may be recognized. The parentèle, studied above, a
characteristic of our own societies, again makes an appearance.15
We have described the way individuals may be identified and
the way the groups of which they form part maintain themselves
and evolve through time, punctuated by deaths and births. What
is the position regarding possessions?
112 The inheritance o f possessions
Domat states: ‘The notion of inheritance is based on the necessity
of continuing and transmitting the social body to succeeding gen­
erations.’16 Consequently the way the inheritance of possessions
is organized reflects the structure of the society. It would be
simplistic to contrast modern societies, where inheritance is
purely individualist, with traditional societies, where the group
outweighs the individual. However, even in our own societies, the
individual’s wishes are circumscribed by regulations, and posses­
Law in Traditional Societies 197
sions cannot be freely disposed of: inheritance has a social role,
involving the family. Also we will show that traditional societies
do not ignore the individual, but involve the individual in com­
munal organization.17The differences are of degree rather than of
an underlying nature.
First principle: inheritance patterns reflect the integration of
individuals into the group. This integration does not consist of
opposing the rights of the individual to those of the group, still
less of abolishing these rights, but rather of situating them in rela­
tion to the individual’s position in the group.
First, possessions should not be dispersed through the whole
range of social groups. Only those individuals who can establish a
genealogical relationship with a common ancestor can hold and
pass down possessions. In line with this principle, the position of
the deceased in the kinship group is first taken into consideration.
The higher the position in the kinship hierarchy, the easier it is to
identify the inheritors. The relationship between respective group
members and the deceased is established. Proximity is the deter­
mining factor and is determined by filiation: the son inherits from
his father (patrilineal organization), or the nephew from the uncle
(matrilineal organization). If the legitimate heir is predeceased,
the possessions are attributed to those occupying a parallel posi­
tion (thus the son of the father’s younger brother will be chosen,
or the son of the mother’s younger sister). Another solution is to
skip a generation and transmit possessions to the father’s grand­
children, or to sons of the niece. These genealogical imperatives
are imposed on individuals and their testamentary freedom is
extremely limited. Finally, the deceased is due a portion of his
own inheritance: his heirs should reserve part of the inheritance
for meals and funerary sacrifices which will be offered from time
to time.
Secondly, not only goods are transferred. Roles are also inherit­
ed: wives and children are considered in the same way as material
possessions. If inheritance takes place through death, it is vital to
establish who will take the place of the deceased in the important
relations he had with others.
Finally, whilst within our own legal systems inheritance does
not necessarily coincide with death (settlement of portion by
anticipation, donations, partitions, etc.), this is a much more fre­
quent occurrence in traditional societies: the timing of inheritance
 198 Legal Anthropology
obeys different rules. In the case of the transfer of possessions,
inheritance takes place on the majority of the successor, rather
than the death of the predecessor (Verdier is right in speaking of
‘inheritance due to life’). In other words, and with due considera­
tion for the rules of filiation, children receive marriage compensa­
tion, and the material wherewithal enabling them to establish
themselves on their majority, from their fathers or uterine
uncles.18 P. Bonte has described this process amongst the
Tourareg Kel Gress (Niger): on the marriage, or the birth of a
first son, an individual will receive some of his father’s livestock.
On the other hand, inheritance of public functions will take place
only on the death of the incumbent (witch-doctor, healer, territo­
rial chief, head of lineage): the oldest person is considered to be
the best fitted to lead, the person closest to the ancestors. Thus
we may observe that traditional and modem societies differ as to
the timing of inheritance: in the former, inheritance of roles takes
place on death whereas inheritance of possessions may take place
before this event; in the latter, accession to public duties or non­
family private duties takes place during the life of the previous
incumbent, whereas possessions are mainly transferred at death.
Second principle: inheritance patterns take into account the
‘socio-kinship’ function of possessions. Modem legal practice
tends to equate the transfer of goods with the transfer of the
deceased’s right of ownership to the estate of the heir. Traditional
law attempts, on the contrary, to transfer possessions in order to
maintain the cohesion of groups, and to facilitate the succession
of generations rather than individuals.
First, the value of goods is based less on their economic worth
than their relationship with the group which lays claim to them
(thus the Serere distinguish, economic worth being equal,
between a cow inherited from a uterine uncle and one inherited
from the father). Thus a unified concept of inheritance does not
exist, since economic value is not a determining factor, and can­
not be used as a means of comparison between different kinds of
possessions. Neither is there a unified succession in the three
areas of possessions, functions and people. Possessions are tied to
kinship: each person forms a link in a chain with the ascendants
and ultimately the founding ancestor; possessions are also associ­
ated with the person who originally created, received, or acquired
them, and who need not be their present custodian; hence the
Law in Traditional Societies 199
existence of collateral inheritance (from brother to brother)
before transfer to the next generation. When inheritance takes
place in vertical line it follows the principles of patrilineal, matri-
lineal, or bilineal organization. Inheritance through filiation is
often complicated by distinctions stemming not so much from the
genealogical origins of possessions as from their nature: certain
possessions (usually land) are transferred only to men (in both
patrilineages and matrilineages); others (ornaments, jewellery)
can be transferred only from mother to daughter. (Our own insti­
tution of preferential transfer - of a farm, or of a business - also
involves this same concept of transfer differentiated according to
its nature.)
Second, some possessions are considered to be vital to the
functioning of the group: the whole group is thus concerned with
their transfer and individuals cannot by force of will modify the
rules which control it. Other, more accessory possessions consti­
tute the property of individuals; those who hold them have more
say in their transfer.
Despite the brevity of these descriptions, we have been able to
establish the fact that traditional law tends to make fewer distinc­
tions between possessions and people. Is this ‘an infantile disor­
der’? In fact it is due to the existence of a different way of
thinking. In modem society, the state tends to play down the
importance of groups in favour of the individual. In traditional
societies one of the main legal attributes of possessions is their
association with kinship. It is quite logical that the state should
reverse this tendency, separating possessions and people, protect­
ing individual property in the process: the French republican
state, in its belief in the freedom of the individual, has always
prided itself in having delivered individuals from the stranglehold
of groups. Today we have good reasons for supposing that the
individual has done no more than acquire a new master, and that
the freedom of the individual amounts, in reality, to the power of
the state.
However, there is another question inevitably raised by the
diversity of the structures governing kinship ties: how do we
account for this variation?
 200 Legal Anthropology
113 Suggested causes o f differentiation between kinship systems
We have already established that the parentèle structure is associ­
ated with societies where the state has established its dominance
over kinship groups19 and that, according to Lévi-Strauss,20 the
differentiation of political power leads to patrilineal organization.
However, beyond these few remarks, which emphasize a political
dimension, we can advance only hypotheses.
Cross-cultural comparisons have hitherto emphasized econom­
ic factors. D. F. Aberle has stated that these factors tend towards
or reinforce patrilineal organization to the detriment of matrilin-
eal organization21: growth in the productivity and size of groups;
increase in the extent of male-dominated work and male-owned
property; increase in male control of the means of production;
development of political organization where kinship influence is
absent. In contrast, matrilineal systems are encountered more fre­
quently in tropical or subtropical zones, where the wild plants
gathered by women are more abundant than the game hunted by
men. Furthermore, the observations of A. Haudricourt and R.
Cresswell provide evidence that relationships can be established
between the plants that societies cultivate and the animals that
they domesticate, and the kinship ties that characterize them.22
Cereal cultivation involves the use of a sexed plant, which pro­
duces a multiple and varied seed. Climate and soil favour certain
varieties above others; the farmer must carefully select his seed.
On the other hand, the cultivation of tubers follows different prin­
ciples: each year the same ones are replanted, forming a number
of clones or a body of tubers emanating from successive replantings.
Cereal farmers often practise an intensive domestication of ani­
mals. Socially they tend to be xenophobic and endogamous.
Politically, as in the Western experience, they tend to submit the
individual to the domination of the state and emphasize the role
of law. In contrast, in the countries of South-East Asia, where the
culture of yams is prevalent, and where there is minimal handling
of the plants (unlike cereals which are threshed and selected), the
use of animals is less intensive and both the state and the law
appear to make their presence felt to a lesser degree in daily life
(this is particularly true of Confucian thought in China).
Continuing the theme of the influence of economic factors on
kinship structures, we may note the results obtained by Driver and
Massey (1966), who established correlations between economy
tl
Law in Traditional Societies 201
and kinship throughout the Indian societies of North America.
The societies in which female labour dominates subsistence activi­
ties tend towards matrilocal residence, matrilineal descent and kin­
ship terminology of the Crow variety. Societies in which male and
female economic activities are evenly shared tend towards bilocal
residence, bilateral descent and kinship terminology of the
Hawaian type. Societies where male labour dominates subsistence
activities tend towards patrilocal residence, patrilineal descent and
Omaha kinship terminology. However, whilst these correlations
suggest economic influence - it would be difficult to argue that
this was not the case - this is not a determining factor; in fact it is
very important to note that these correlations are characterized by
an index of low intensity. We may conclude, in company with M.
Godelier, that other causes (political, social, religious, etc.) also
have an influence.
In conclusion, we should note two important points.
First, material conditions play their part in the organization of
kinship structures, but they are not all-important in determining
their form. The degree of political differentiation also plays an
important role. Second, the predominance of masculine activities
seems to favour patrilineal organization: all nomadic pastoral
societies are patrilineal (except the Touareg). Men play an essen­
tial role, because the domestication of animals falls to them. Yet
this is only part of the picture, because in societies with different
economies (hunting, fishing, gathering, agriculture, craft activity),
we may observe the existence of unilineal, bilineal and undifferen­
tiated kinship ties, irrespective of the period and mode of produc­
tion. As Godelier has written, we must unfortunately reach the
conclusion that ‘at present, the social sciences have not yet been
able to discover the correlation between the means of production
and the social means of reproduction*.23 This statement does not
mean that the mechanisms which determine kinship structures
are random: the mists through which we perceive their oudine are
a function of the rudimentary way we attempt to illuminate them.
Fortunately we can shine a sharper light on marriage.
C: M arriage systems
In our modern societies, groups tend to hide behind individuals.
Traditional societies are organized according to an opposite ten­
dency24: marriage is essentially a means of cementing an alliance
between groups.
 202 Legal Anthropology
The importance attached to groups contains one of the expla­
nations of the prohibition of incest. Meanwhile, if this prohibition
is universal, it operates through several systems of exchange,
which we will attempt to classify.
The prohibition of incest: incestous relationships are prohibited in
all societies, a fact whose interpretation has led to several theories.
114 The impulse o f incest
Many entrenched taboos have been abolished in modem societies
in the course of the last ten years. It would appear that we still
respect the taboo on incest,25 bringing to bear ‘natural’ and bio­
logical laws: relations between close relatives are said to be unnat­
ural, and the offspring of such unions would produce an increase
in genetic defects. Yet there are indications that incestuous union
is a natural impulse. An Azande proverb affirms that ‘the desire
for women begins with the sister’. Then there is the frequently
quoted statement made to Margaret Mead by a member of the
Arapesh community (South Sea Islanders): ‘You would consider
marrying your sister? What has come over you? Don’t you want
any brothers-in-law? Don’t you see that if you marry another
man’s sister and another man marries your sister, you will have at
least two brothers-in-law, whereas if you marry your sister you
won’t have any at all? Who will you go hunting with? Who will
you work the soil with? Who will you visit?’ The moral is clear:
there are good social and economic reasons for not marrying
one’s sister. In describing marriage in Roman society, Plutarch
was already aware of this, although only in a hesitant fashion, and
suggesting other reasons: ‘Why don’t they marry women who are
closely akin to them? Do they wish to enlarge their relationships
by marriage and acquire many additional kinsmen by bestowing
wives upon others and receiving wives from others?’26
Psychoanalysis, through the concept of the Oedipus complex,
appears to confirm that it is the impulse of incest which is natural,
rather than its prohibition. Stating that incest is unnatural does
not establish it as noxious. To face the world and society, a child
must seek emancipation from its parents, as the scriptures pro­
claim: ‘You will forsake your father and mother.’ Is such an
explanation applicable to social groups? Lévi-Strauss suggests that
this is indeed the case.
Law in Traditional Societies 203
115 Interpreting the prohibition o f incest
The main theories oscillate between two poles: either they associ­
ate the prohibition of incest with practical considerations or, after
Lévi-Strauss, the prohibition stems from social imperatives tied to
the necessity of exchange. More recently, Godelier has suggested
that the prohibition rests simultaneously on both explanations.
R. Fox27 believes that the prohibition of incest should be inter­
preted in the context of natural selection; inbreeding is harmful.
In the avoidance of incest, animal species close to humankind
resort to promiscuity or competition between generations with the
resulting expulsion of young individuals. However, when the first
human societies formed relatively stable family groups, these
practices posed a threat, given that groups needed to cohere. The
prohibition of incest thus had to be invented, preventing consan-
guinous unions and regulating competition between individuals.
Human societies which did not adopt this solution were eliminat­
ed through natural selection.
Lévi-Strauss’s theory, which currently enjoys favour, highlights
different factors. Lévi-Strauss does not believe that inbreeding is
biologically harmful, at least in the long term.28 He draws atten­
tion to the fact that, on a number of occasions since the end of
the paleolithic period, man successfully used endogamous repro­
duction in the cultivation of plants and domestication of ani­
mals.29 Why, in the purely biological sphere, should he draw
different conclusions where his own reproduction was concerned?
Furthermore, Lévi-Strauss states that a biological argument for
the prohibition of incest became generalized only from the six­
teenth century onwards; this explanation can thus hardly account
for why early societies should prohibit incest. Whilst it is true that
inbreeding does in the short term increase the danger of the
appearance of recessive defects, this is only a temporary phase.
Within a few generations they are eliminated. Moreover, in soci­
eties with small populations, the prohibition of marriages between
close kin has a very limited effect in regard to genetic defects. In a
population of 80 people, the prohibition of marriage between
close kin, first cousins included, only diminishes the carriers of
rare characteristics by 10 or 15 per cent. Lévi-Strauss also attacks
explanations of incest prohibitions based on sexual motives.
According to these, living in close proximity lowers the threshold
of sexual excitement. This may be true, but there is none the less
204 Legal Anthropology
some confusion between the familiarity which exists between sex­
ual partners (husband and wife) and that which might exist
between kin. This familiarity can hardly be expected to exist in
the latter category, since it is these very sexual relationships which
are prohibited. Some societies, such as the Tchouktche (Siberia),
practise forms of marriage where the children are married when
very young, then brought up together, which does not preclude
sexual union and procreation as adults. Finally, Lévi-Strauss
remarks that if the ‘horror of incest’ is based on deep underlying
physiological and psychological causes in human nature, it is diffi­
cult to explain why all known human societies have, in varying
degrees, found it necessary to prohibit it: we only protect our­
selves against events we feel are likely to occur. Lévi-Strauss
explains the prohibition of incest largely through social factors.
We renounce the idea of marrying close kin and accept the idea of
giving them away in marriage30 to other family groups, from
whom we will, in return, receive spouses. A price is paid by the
individual in this form of marriage exchange: each person must
accept the ‘loss’ of kin who were potential marriage partners. But
there is a collective advantage: in the absence of these exchanges
social groups would be inward-looking, the negation of life in
society. In addition this retrenchment would serve only to accen­
tuate hostility between groups; when a group ran out of women,
war would be the only recourse in obtaining women from a
neighbouring group. The a contrario proof of this factor is that
marriage exchange is often used as a means of ending a conflict,
or is a recognition that hostilities have ended. The Melanesians
say: ‘We only take wives from those against whom we make war.’
Our European monarchs have often followed this precept.
Consequently Lévi-Strauss believes that the prohibition of incest
is one of the clearest manifestations of the transformation of
nature wrought by culture:
The prohibition of incest is in origin neither purely cultural nor
purely natural, nor is it a composite mixture of elements from
both nature and culture. It is the fundamental step because of
which, by which, but above all in which, the transition from
nature to culture is accomplished. In one sense it belongs to
nature, for it is a general condition of culture. Consequently,
we should not be surprised that its formal characteristic, uni-
Law in Traditional Societies 205
versality, has been taken from nature. However, in another
sense, it is already culture, exercising and imposing its rule on
phenomena which initially are not subject to it.31
M. Godelier’s position is halfway between the last-mentioned
writers: he is not dismissive of Lévi-Strauss’s analysis but recog­
nizes biological factors.32 He states that humankind has no
monopoly over either the family or society: some animal species
also develop these institutions (chimpanzees living in bands com­
prised of a number of families). On the other hand, humankind
can lay claim to having invented kinship ties, a much more com­
plex form of relationship between kin, because human kinship is
as much social as biological (we can have kinship ties with people
with whom we have no biological ties), and extends far into both
time and space. It is possible that these ties began with the dis­
covery of paternity, more difficult to establish than maternal filia­
tion (some human societies do not associate sexual intercourse
with procreation, believing that women are impregnated by the
spirits). The prohibition of incest has certainly contributed to
this. However, for Godelier the underlying causes are biological.
To begin with, the human female is sexually attractive on a quasi­
permanent basis (unlike the females of other species).
Furthermore, humans attain maturity much more slowly. In the
same family there will be sexually active individuals from more
than one generation. Taken in conjunction, these two factors pre­
sent a potential threat for a society, increasing competition
between its members: the prohibition of incest was invented to
protect society.
Henceforth, filiation and marriage rules appeared and intensi­
fied; the prohibition on choosing a closely related spouse
inevitably led to the existence of marriage and filiation rules, pro­
hibiting the similar and authorizing the different. The prohibition
of incest is seen as a response to a biological modification, a
response which institutes exchange as a means of sociofamilial
regulation. Finally, Godelier quite rightly draws attention to the
fact that even if men dominate women in most human societies,
this is not an inherent feature of human kinship, whose role is to
formulate the structure wherein exchange takes place. The basis
of male domination lies elsewhere, in economic, political and cog­
nitive domains, which only make an impression, in the photo-
 206 Legal Anthropology
graphie sense of the term, on kinship ties.
We will now examine the various forms of marriage exchange
through which the prohibition of incest is articulated.
Systems of marriage exchange-, there are three such systems. They
are: elementary systems, from which certain kin are excluded, and
which prescribe preferred marriage partners; semi-complex systems,
which exclude entire classes of kin through marriage prohibitions,
rather than genealogically identified individuals; and complex sys­
tems, which prohibit marriages within a close circle of kin, but
without expressly prescribing the choice of partner. Our own soci­
eties are characterized by complex systems, where law on marriage
prohibits unions which it defines as incestuous, without imposing
a positive preference, leaving what appears on the surface to be
complete freedom of choice. We must avoid the pitfalls of evolu­
tionist interpretations. Our societies transfer the prohibitions and
prescriptions of elementary systems to the socioeconomic sphere,
seemingly giving the individual freedom of choice, but in fact
replacing genealogical constraints with sociological imperatives.33
Conversely, traditional societies also use complex systems each
time they prescribe a marriage outside the clan without specifying a
partner. However, elementary systems are often encountered in tra­
ditional societies, and we will concentrate on these.34 Two kinds
of exchange are practised: restricted and generalized.
116 Elementary systems featuring restricted exchange
Restricted exchange takes place when two groups engage in the
reciprocal exchange of wives, which is in fact an exchange of sis­
ters: a group of men give their sisters to another group of men
who give theirs in exchange. This form of exchange, also called
‘Kariera’ (the name of the Australian society where it was first
clearly described), is generally practised by so-called dualist soci-
&
A
6 K
B
ô Ôa aÀ = Ôb bÀ = Ôc cÀ
Figure II.2.10 Restricted exchange
Law in Traditional Societies 207
eties, which divide their members into two unilineal exogamous
halves. This system favours, in the generation following the
exchange, marriages between cross-cousins because they are the
children of men who have exchanged their sisters. It proscribes
marriages between parallel cousins, children of marriages where
the partners have not given up kin of the opposite sex.35
117 Elementary systems featuring generalized exchange
Unlike direct restricted exchange, generalized exchange need not
involve immediate reciprocity in the transfer of spouses, and, the­
oretically, can include an unlimited number of partners, as the
following diagrams show.36
In this system, the lignée of wife-givers is never the same as that
of wife-takers; each individual is both a giver and a taker of wives.
The donor group never receives directly from the reception
group, but from the group at the furthest extremity of the chain of
exchanges (Figure II.2.11).
This system is less predictable than restricted exchange, but
much more open and permits social, political and economic dif­
ferentiation, as the example of the Kachin (Burma) demonstrates
(Figure II.2.12).37
B
(5 * = (5 = =
Direction of gift of wives
F igure II.2.11 Generalized exchange
 208 Legal Anthropology
In this society, each of the lineages of the three main social
groups tends to marry internally. Yet, within each group, some lin­
eages will form unions with lineages from an inferior group. The
mutual interest is clear: in exchange for wives given to inferior
I
wives
t
wealth
Figure II. 2.12 Generalized exchange amongst the Kachin
(Burma)
lineages, who are keen to have wives from a higher group, the
superior lineages receive a bride-price based on the standing of the
bride. Thus some women move downwards, whereas wealth flows
in the opposite direction towards the lords, who in turn distribute
it to their entourage in the form of feasts or food.
Generalized exchange can thus determine and reinforce social
differentiation in societies which are divided along socioeconomic
and political lines. This is a more frequent occurrence amongst
complex societies, those in which, as in the case of French law,
some partners are ruled out, but none is institutionally prohibited.
Law in Traditional Societies 209
This rapid overview of marriage systems confirms the sophisti­
cated nature of traditional societies: in fact, if we compare them
to our own kinship structures, we can only be struck by the con­
ceptual poverty of our systems.38
Nevertheless, we need not conclude from these descriptions
that these norms are automatically followed in practice. In
Australasian societies, where kinship organization is in practice
very sophisticated, many marriages occur in open violation of the
rules; amongst the Purum (India), only 62 per cent of marriages
conform to the rules; in Arab societies, the preferential marriage
between patrilateral parallel cousins represents only 30 per cent of
marriages. These relatively high figures demonstrate that kinship
is no more the prime mover in society than material factors are.
Kinship must confront other forces (economic, political, religious,
etc.) whose compliance cannot always be counted on. Also, we
should note that powerful though the family group may be, the
married couple plays an important role within it.
The married couple, in varying degrees, is common to all soci­
eties. We will devote the next section to the conjugal couple
before concentrating on its role in the procreation of children,
and describing their status.
118 The universality o f the conjugal couple
The conjugal couple is universal, but its role in various societies is
variable. Amongst the Nayar (India), the men should devote
themselves above all to war; marriage creates no permanent
bonds. Authority and rights to land reside with uterine uncles. In
Nazi Germany, the hyperdivision of labour according to gender
(political and military roles for men, domestic roles for women),
had it lasted for centuries, would have possibly resulted in a
model not unlike the Nayar. More recently, Mao’s China
attempted to do away with the conjugal couple.
Further, we should note that polygamy does not exclude the
conjugal couple. Polygynous families, where a man is married to
several women, often consist of monogamous families living side
by side: in Africa, a man often has several wives, but each lives
with her children in a separate house. Polygyny cannot exceed
certain limits, partly because the demographic imbalance between
the two sexes is only 10 per cent, though this can be increased by

210 Legal Anthropology
the relatively common practice of the infanticide of newborn
babies of a particular sex. Polyandry, the marriage of one woman
with several men, is rarer (the Toda of India, parts of Tibet and
Nepal).
Also, the conjugal couple can consist of partners of the same
sex. Amongst the Nuer (Sudan), a sterile woman may pay a
bride-price to the parents of another woman and marry her,
allowing her to be impregnated by men. She is henceforth treated
as a man, can inherit cattle, and can receive a bride-price when a
girl of her lineage marries. In our own societies, cases exist of
unions between individuals of the same sex; sometimes these are
consecrated, legally and by religious rites.
There are also cases of unions between the dead and the living
which can be added to the foregoing. Amongst the Nuer a widow
can take part in a ghost marriage by marrying a man in the name
of her heirless dead husband. The Kikuyu take the same principle
even further: a widow who is too old to bear a child by her lover
(a child who would inherit from her deceased husband), can pur­
chase a wife with the possessions of the deceased and have her
procreate in her name; this woman is henceforth considered to be
the wife of the deceased and her children can inherit directly from
the deceased, since their mother has been purchased with his
wealth. These practices seem ‘exotic’, but our own societies,
using different means, such as the freezing of sperm or the ‘loan’
of a womb, are beginning to follow the same path.
Whatever form it may take, the conjugal couple is recognized
everywhere. This is partly because all societies distinguish between
marriage and simply living together. In our own societies, the legal
status of a conjugal couple is more secure than that of a couple liv­
ing together; even if the latter practice has become much more
widespread, it is still considered a prelude to marriage or follows a
marriage dissolved by death or divorce. The conjugal couple has
always played a procreative role. In many traditional societies,
marriage is validated only by the birth of the first child. In our own
societies the respective ‘in-laws’ of the two partners are often only
considered to be related on the birth of the first child of their
descendants. In contrast, the status of an unmarried adult is of a
lower value. As a result of a pronounced division of labour, there
are few single adults in traditional societies, where marriage is a
prerequisite of survival. Where encountered, their status and the
Law in Traditional Societies 211
esteem in which they are held are both very low (often the word
for unmarried person is synonymous with ‘infirm’). In our own
societies, from a certain age onwards, celibacy is considered
‘abnormal’ (advertising tends to favour couples).
The multiplicity of forms a conjugal couple may take is a token
of the important role accorded to this institution by society. This
role justifies giving further consideration to marriage arrange­
ments and the obligations of the partners.39
119 M arriage arrangements and the relationships between partners
Marriage is often accompanied by the payment of bride-price.
This is a dowry, a term which does not have the same meaning as
in our own legal parlance since it consists of a payment made by a
prospective husband or his family to the parents of his wife-to-be.
The dowry is not the ‘purchase price’ of the bride: it is compensa­
tion for the loss suffered by the bride’s group. It not only has eco­
nomic significance, but also is a guarantee of harmonious
relations between the two families, since the payment is often
spread out over several years. In many societies, the payment of
the dowry is a presumption of paternity: the husband is father to
all his wife’s children, whether he is the real father or not; a wife,
even if separated from her husband, cannot remarry, and her chil­
dren will be considered her husband’s children, unless the dowry
is repaid.
If the importance attached to the dowry demonstrates that mar­
riage binds groups as much as individuals, even if the latter have
some say in the matter, it is the man in particular who benefits. It
would be unusual for parents to force a marriage on an unwilling
son. Often the union has been prepared over a long period: the
future partners are brought up together and rarely leave each oth­
er’s company; their subsequent marriage seems a ‘natural’ occur­
rence. Even in cases of preferential marriages, it is not uncommon
for there to be several suitable girls, genealogically speaking,
which gives the young man a measure of choice. In extreme cases
the latter may impose a bride on his parents against their will by
simulating an abduction, a state of affairs which family groups
will legitimate through marriage. On the other hand, the con­
straints imposed on women are much stronger; their opinion
counts for much less.
 212 Legal Anthropology
The marriage itself is always accompanied by rites. Generally
these symbolize separation: the wife is separated from her family
by an initiation rite, followed by a ceremony uniting the two part­
ners. In our own societies, it is the other way round. The secret
departure of the newlyweds on their honeymoon follows the fami­
ly celebrations, a sign of the freedom acquired through marriage
over family groups. In traditional societies, however, the aim of
marriage tends to be the union of groups: this is demonstrated by
the fact that in some societies the partners do not live together
immediately after the marriage ceremony (amongst the Ashanti of
Ghana, married couples live apart for several years; in the case of
the Nyaro of the Sudan, the couple live together only once the
wife is pregnant; the Twana wait for the birth of the first child,
whilst the Dogon wait until several children have been bom).
The obligations between couples can vary considerably
I depending on the society and type of filiation. Adultery may be
i deemed a minor fault (the Tonga of Zambia), or can be very seri­
ous (Swasi, Nyakyusa). Often, the wife is more heavily sanctioned
than the husband. Similarly a man may lend his wife to a third
party for a variety of reasons (hospitality, establishing kinship ties,
creating obligations of protection between the lender and the bor­
rower), but lending in the opposite direction is not encountered.
These observations raise the question of the role of women in
relation to men.
In some societies, women and men are equal (Pigmy,
Andaman, Garo and Khasi (Assam), Touareg). Generally, how­
ever, women’s position is inferior. Nevertheless there are degrees
in the inferiority of women, often dependent on economic factors.
Women’s position is weakest in pastoral societies, where they are
excluded from all noble activities (they may only rarely look after
livestock). Amongst hunters, the women’s status improves. In
crop-raising societies, where the fertility of women is more directly
associated with the fertility of the soil than amongst pastoralists,
and where women play an important role in the farming calendar,
their position is midway between that found with pastoralists and
with hunters. In societies which practise forms of agriculture
which do not rely on crops, the status of women is lower. These
are generalizations, and exceptions would not be difficult to find.
Law in Traditional Societies 213
120 The dissolution o f a marriage
Marriages for set periods do not exist, but marriage may be con­
ditional: sterility is a more frequent cause of annulment than
divorce. Death does not always terminate a marriage, as we have
seen in the case of ghost marriages.40 Marriage may also perpetu­
ate itself despite the death of one of the two partners, in the form
of levirate: the widow remains married to her deceased husband,
but cohabits with his younger brother, and the children of this
union will still be considered to be her husband’s (thus the Gusii,
Nuer, Swazi, Tswana, Zulu, etc.).41 A widow may also take a
partner, who will have the legal status of a husband, from the
brothers or sons of her husband (patrilineal societies), or from the
sons of her sisters (matrilineal societies). Finally, the sororate is
the symmetrical opposite of the levirate: on the decease of the
wife, her parents will supply one of her sisters to the widower. All
these arrangements testify to the desire of groups to perpetuate an
alliance interrupted by death.
However, marriage may also end in divorce. In general this is
more common at the beginning of a union and in matrilineal soci­
eties, where the woman maintains closer ties with her own family.
Divorce, no more than death, does not automatically signify the
end of the alliance between groups. To begin with, one of the
partners may remarry amongst the ex-spouse’s group. Also, the
repayment of the dowry may have a variety of implications: if the
payment was a condition of the marriage and divorce follows its
restitution, the union is terminated; in the opposite case it continues.
We may wonder why family groups attempt, in many cases, to
perpetuate a marriage alliance. Doubtless one of the reasons is
that these groups wish to ensure they have descendants.
121 The status o f children
The Bambara say: ‘There is no remedy to death, except children.’
In talking about an adult who leaves children, the Bambara say
that he has disappeared, whereas a single person who dies is ‘fin­
ished’. Amongst the Peul of West Africa, women who cannot con­
ceive adopt imitation babies made from ears of maize, to which
husbands will sometimes give a name, the grains of maize symbol­
izing abundance and proliferation. An obsession with procreation
is not the monopoly of far-off societies. In Germanic Europe trees
 214 Legal Anthropology
were often planted at the birth of a child, celebrating mutual
growth in a totemic kinship. Today, debates over new modes of
conception reflect a crisis in procreation which seems to inhabit
our societies. No doubt such anxieties stem from our inability to
give significance to death.42 The Bambara testify to the fact that
this is a problem in all societies. However, traditional societies
seem better equipped to deal with it, to the extent that they believe
in an invisible world, inextricably linked to the visible world.
These societies are not as well equipped medically as our own,
but this shortcoming is compensated by invoking non-biological
forms of kinship when the problem of sterility arises (or even
when one of the two partners disappears) and adoption is more
prevalent. Here again, these arrangements do not presuppose
some sort of primitiveness: the conception of a woman through
the deposition in her womb of an unknown donor’s sperm, the
extraction from within her of an ovule which will be fertilized in a
test-tube, are these any less ‘savage’ than the ghost marriages of
the Nuer? Nothing entitles us to suggest that this is the case.
The child is no less the object of attention in traditional soci­
eties than in our own. The status of the child varies considerably,
and the relationship with his or her parents depends very much
on the type of filiation practised by the child’s family group. As a
general rule, paternity is a social as much as a biological tie, and
the legitimacy of a child depends rather on the extent of integra­
tion into a family group, than on the identity of the progenitor.
As regards the link between social and biological factors, we
should note that, depending on the form of marriage, the father is
either both the husband of the mother and the procreator of the
child, or only the procreator or only the husband of the mother.
The status of a child of an unknown father and an unmarried
mother also varies from society to society. In many African and
Polynesian societies, the mother is aborted or the child is killed at
birth. Amongst the Baoule, the woman identifies the father and
he is obliged to marry her until such time as the child can walk;
he can escape this obligation only by flight. In other societies the
child is adopted by the family group of the mother, whose brother
takes on the role of father; this occurs not only in matrilineal soci­
eties (Ashanti), but also in patrilineal societies (amongst the
Lowiili, a father can ask a third party to make his daughter conceive
in order to maintain his heritage).
Law in Traditional Societies 215
To conclude, we concur with Claude Lévi-Strauss43 that there
are two possible models of society and the family. The first is
vertical and favours the nuclear family, the sum of whose units
constitute society; filiation is the vital element here, accentuating
the parent-child role; the family is rooted above all in time, over
successive generations. The second model is horizontal and sug­
gests a fluid social body in which families, adhering to prohibitions
on incest, coalesce and dissolve, constantly choosing new partners;
the alliance is the dominant factor; the restricted family has only
an ephemeral existence, and the passing of time restructures
rather than confirms family groupings. We agree with Lévi-Strauss
that the vertical conception must be corrected by a horizontal
interpretation. Procreation, and consequently the thrust of the
vertical axis of descent, can take place only if a man and woman
form a union. The couple could be close kin, but the prohibition
of incest rules this out, otherwise the society would not be able to
perpetuate itself. Thus two families must be able to exchange kin
on a horizontal level, and the resulting union will allow the lineages
to reproduce themselves:
If each small biological unit wishes to avoid leading a precari­
ous existence, haunted by fear, a butt of the hatred and jeal­
ousy of its neighbours, it must abandon all idea of being
inward-looking; it must sacrifice its identity and continuity,
opening itself to the interplay of marriage alliances. In oppos­
ing the separatist tendencies of consanguine alliances, the pro­
hibition of incest succeeds in creating a network of affinity
which provides a social framework, without which all societies
would fail.44
In our societies, the vertical model of the family still predomi­
nates (although emphasis on couples and the increasing rights of
the surviving partner adversely affect the rights of descendance).
How do we explain this apparent contradiction? In our view it
exists because a vertical model harmonizes with our contempo­
rary view of the family. In fact, descent accentuates natural rather
than social factors, since it is based on procreation; it also under­
pins the affective ties which bring together ascendants and
descendants in chains whose links are open towards the friture.
Alliances, and the upheaval they involve, are blurred. This is the
model we favour; we prefer kinship ties through blood rather than
 216 Legal Anthropology
social kinship ties (adoption is often a last resort when medical
science has failed). Finally, in our nuclear families collaterals have
a shadowy role (they have been pushed constantly further back
from the centre stage of inheritance during the course of the
twentieth century). These collaterals forge alliances, breaking up
to reunite in a different manner. We prefer the succession of
generations to this kind of upheaval; it absorbs our anxiety
about death.
II PROPERTY
In our systems of law, land is something tangible and non-mov­
able in character and can be publicly or privately owned.
Traditional societies have a different conception of land.
A: Contrast between modern and traditional legal thinking
122 African attitudes to land
The Dogon believe that the sole god Amma fashioned the earth in
the form of a woman’s body, with an anthill as the sexual organ
and a termites’ nest as the clitoris. Amma wished to have union
with his own creation, but had to destroy the anthill, a male obsta­
cle, in the process, excising the earth. This incident had dire con­
sequences: instead of producing twins, a token of good fortune,
the earth produced a single being, a jackal, symbolizing the god’s
original blunder. Subsequently the jackal committed incest with its
mother. The earth is thus the source of life, directly linked with
creation and its imperfection. This sacred status means that land
cannot be appropriated as if it were movable goods. To use the
land, an alliance must first be made with its invisible guardians.
Ancestors, bom of the earth, return to the earth; cultivation articu­
lates their presence in the land. They transformed the bush, no
more than physical space, into a humanized and socialized envi­
ronment. The founding ancestor of a village community is
believed to have concluded this alliance with the powers guarding
the earth; he passes down this custodianship, through heredity, to
‘land chiefs’, in whom powers are vested in accordance with their
authority over the land. The relationship between the earth, order
and fertility is often demonstrated in the belief that the death of
Law in Traditional Societies 217
the chief is accompanied by drought in the land and sterility in
women.
The land is not only made sacred but also humanized and
socialized. Its fertility is often associated with women. The Dogon
say: ‘A man who gives away a field is the same as a man who gives
away a woman’, underlining the similarity between the granting
of a field by the father and the granting of a wife by the maternal
uncle. Likewise the occupation of new land means forming an
alliance with the land. The arrival of a fresh group of immigrants
on this land, previously occupied by the descendants of those who
made the original alliance, is accompanied by the gift of a woman:
the chief gives his daughter in marriage to the new arrivals, a mat­
rimonial alliance responding to an alliance offered to the land. In
more general terms, possessions only form a legal category in
modem societies sui generis. Elsewhere they are linked to the legal
status of the groups which produce, exchange, or consume them,
thus obeying different rules.
The existence of links between the invisible and visible world
and, in the visible world, between humankind and social groups,
militates against the emergence of the droit réel concept in law
[droit réel: direct link between a person and a possession: TN],
with which we are familiar, stemming from the distinction
between ius in re and ius ad personam: rights cannot be directly
claimed over things, any more than the earth can be reduced to
the status of thing (consequently it is easier to talk about property
relations than property rights). This thinking explains a near total
absence of the notion of ownership. Only the peaceful occupation
of land over a given period can give rights over land. Landholding
and the enjoyment of its fruits are organically linked to the hierar­
chy of social groups and their status. Individuals can only apply
for land rights in line with their own status and competence, and
on condition that the period of use of the preceding incumbent
has terminated.
Although in our own peasant societies land is often considered
apart from other possessions and may even be considered sacred,
Western jurists are ill-equipped to appreciate the essence of
African thinking. This is why landholding in these societies has
invariably been viewed as a double negative of the Western
model, with the invention of a ready-made pre-colonial frame­
work.
218 Legal Anthropology
123 The pre-colonial property framework
The pre-colonial framework, as described by Western jurists, can
be summed up by in the following paradigm, after E. Le Roy:
Whereas in civilian law rights of ownership are individual, cannot be
forfeited or annulled and are absolute, exclusive and perpetual, in cus­
tomary property law, land is non-movable property over which there
are collective rights of ownership rendering it inalienable. Rights of
ownership are temporary rights, limited and relative. Le Roy and
Verdier’s research clearly demonstrates how erroneous these
propositions are.
Collective ownership: generally speaking, this concept goes hand
in hand with an evolutionist perspective which attempts to explain
how, progressively, humanity passed from savagery to civilization
in increasing the extent of private property. Eminent jurists in the
civilian tradition, such as the Mazeauds, do not hesitate to identify
with this outmoded idea:
It would appear that amongst all societies, ownership was orig­
inally collective: all goods belonged to the clan or the tribe.
Ownership in the form of personal possessions, must have first
appeared in relation to movables: clothes, followed by tools
and equipment. Buildings connected with residence were
appropriated relatively early, initially by the family. But land
remained clan property for a long period. It was originally cul­
tivated communally. Subsequently, cultivation and its fruits
were temporarily divided between families; each being allotted
a parcel of land which was worked by subsistence farming.
Since ownership remained communal, allocation would vary
from year to year until gradually the custom spread of leaving
the allotment unmodified for a certain period of time. . . .
Finally possession became permanent. Thus ownership of land
lay with families and subsequently with individuals. Family
ownership was in any case sometimes individual ownership
since the head of the family had sole rights over the possessions
of the group. Collective clan ownership, family ownership,
individual ownership. These were the stages.45
Not only is this ‘historical’ reconstruction completely arbitrary, it
interprets chronologically what were in fact synchronic legal fea­
tures: group rights were not replaced by individual rights; instead,
Law in Traditional Societies 219
from the earliest period we have considered onwards, there was
coexistence between rights.46
To this extent there is no such thing as ‘collective’ ownership in
traditional law. In Africa, land is possessed and controlled by
groups (lineages, villages, etc.), represented by elders or councils.
However, individuals have access to the land and make use of it,
through a variety of different procedures (reminiscent of medieval
seisin), depending on their status within the group or, in some
cases, on the nature of their allegiance towards political authority.
The term ‘communal’ is preferable to ‘collective’, for the former
does not exclude the existence of personal rights; personal rights
exist, but are qualified by the individual’s position within refer­
ence groups.
Inalienable ownership: the sacred nature of the land and the
importance of transferring it intact from the dead to the living, as
well as to future generations, has often been invoked to justify the
idea of the land as inalienable, which would, again, confirm its
‘communal’ dimension. Once more there are serious reservations
attached to this concept of inalienability. These have been clearly
formulated by Verdier. We must determine whether the transfer
or pledging of land occurs internally or externally to the group.
Externally (‘exo-alienation’), the prohibition against extra-lineal
transmission [exo-intransmissibilite\ is applied: land may be lent or
rented to strangers of the lineage, but not permanendy relin­
quished, unless the lineage authorities make specific provisions to
the contrary. However, in this latter eventuality, the transfer gen­
erally includes a reconveyance clause. Internally (‘endo-alien-
ation’), land can be freely transferred.
The restrictive characteristics of property rights: the collective char­
acter of land ownership would entail a restrictive definition of
rights to land, in which they are treated as temporary, limited and
relative. These characteristics do indeed exist but they reflect a
different reality, since collective ownership of the land does not
itself exist. Rights to land were recognized only in connection
with land use and were applicable only as long as this continued.
Consequently, if the right to use land is not exercised over a set
period of time, it lapses. Furthermore, these rights are relative
since the plural structure of the community to which the land
belongs dictates that land is charged with an assortment of rights
held by different people.
 220 Legal Anthropology
Land as a non-movable asset', it would seem logical to class land
as non-movable. However, material criteria (movable/non-mov-
able) are not the only relevant criteria in this typology. In the his­
tory of our own legal systems the opposition of movables and
non-movables goes hand in hand with the emergence of private
rights of ownership: multiple rights over the same land diminish
in importance and the civilian character of ownership appears,
with its exclusive nature. Under feudalism, land was charged with
a palimpsest of rights, whose characteristics depended on the
sociopolitical status of its holders (in this respect there is some
resemblance to land law in traditional societies). In the 1789
Déclaration des Droits de l’Homme et du Citoyen, ownership
becomes a human attribute, independent of status. Property own­
ership is particularly well protected: rescission for injury; posses­
sion does not establish tide, except in establishing ownership over
a very long period. The description of land as non-movable prop­
erty is consequently associated, in our own tradition, with a clear
preference for the individual rather than the group. This is clearly
not the case with the communal model. This is why describing
land as non-movable property in traditional societies is nonsensi­
cal: land is neither movable nor non-movable, it plays an alto­
gether different role.47
Land as a possession48: land enjoys the particular protection of
article 518 of the Civil Code (France) in which it is described as
‘non-movable by nature’. Land is given a significance beyond its
material existence; it is a possession and as such has a pecuniary
value and can be bought or sold. This venal aspect of property
ties in with the individual and exclusive nature of the right of
ownership in the civilian tradition. The differences between these
ideas and traditional land law are clear. The traditional system
takes the economic value of land into account, but this value does
not play the determining role that it has in civilian law, wedded as
is the latter to the mode of production of mercantile capitalism, in
which the value of land is monetarized and becomes an element
in a generalized market dominated by the individualist organiza­
tion of exchange. On the contrary, the traditional system, in
affirming the prohibition against extra-lineal transmission of land,
stresses the non-commercial character of land: rights over land
can circulate only between members of the same group. If the tra­
ditional system tends to obscure the economic value of land
I
Law in Traditional Societies 221
whilst the civilian system proclaims it, the former takes account of
the sociopolitical status of those to whom rights apply whereas the
latter denies it. (More to the point, we may observe that in tradi­
tional societies, property law plays down the economic value and
emphasizes the sociopolitical status of those who have rights of
ownership, where arrangements within the group are concerned,
whereas the opposite applies in the case of arrangements between
communities.) In our own societies, law attempts to differentiate
between social actors by the use of unifying categories such as
legal entities and private owners of property. However, as
Carbonnier has rightly pointed out:
What further distances [contemporary thinking] from reality, is
the kind of Pharisaism whereby we ask no more than ‘What is
ownership?’ without the corollary ‘But who is the owner?’
Blinded by article 544 [of the French Civil Code], we have
been satisfied that the attributes of property were alone worthy
of our attention, and we have neglected the means of appropri­
ation, which flounders in technicalities in another part of the
Civil Code (article 711 et seq.), without realizing the terrible
social reality they depict. . . . Yet for whomever wishes to
understand the institution in all its aspects, the distribution of
property is as important as its organization.49
In other words, we cannot study ownership without studying
those who have rights of ownership.
124 Property and social status in traditional and modern societies
As E. Le Roy has stated, we are concerned less with property law,
as classically defined by Western jurists, than with land as the
context in which, and the stage on which, social interaction is
played out. This is why landholding seems a more appropriate
term. Lévi-Strauss commented that ownership could not auto­
matically be described as a hard and fast relationship existing
between a subject and an object: the object acquires and loses its
value —and is thus submitted to legal procedures through which it
is variously qualified, used, or transferred - essentially as a func­
tion of the relationships that exist between individuals. In other
words, ownership is to a great extent influenced by social interaction
and social structure.50This applies to all societies.
 222 Legal Anthropology
Traditional African law is based on the twin principles of the
status of individuals in the group, and the use of the environment.
Productive labour is dominated by such social values as group
continuity, reciprocity of rights and obligations, the complementary
nature of social categories, etc. These concepts are not exclusive to
exotic societies: we encounter them in the peasant societies of our
European past which took large steps towards modernization in
the late eighteenth century. At this time people’s status became
more uniform, to facilitate their movement, and labour - now
given a monetary value and responding to a market - was separat­
ed from non-monetary functions. The status of the actor in the
environment and the environment itself were uncoupled.
Ownership is now mainly unrelated to land use: in the 1804 civil
code (France), the only restrictions as to use are easements and
expropriation in the public interest. Today, as we will see, accul­
turation produces similar effects in many Third World countries.
Transitional phases do exist between the traditional and modem
systems. The distinction between de jure and de facto appropriation
provides an opportunity for studying this phase.
125 De jure and de facto appropriation
Godelier states that productive relations are represented, in the
legal domain, by forms of ownership and possession which deter­
mine the reciprocal rights and obligations of individuals and
groups in the production and distribution of resources. However,
the existence of de facto appropriation can be at variance with the
legal position, and can modify social interaction and social equi­
librium. In these cases traditional law tends to be a fiction which
conceals the true nature of productive forces. Examples of this
process can be found in a wide variety of societies. In Africa, clan
chiefs, under the pretext of exercising their traditional control
over lineage land, appropriate the land for their own personal use.
Thus in Ghana at the beginning of the century some Ashanti
chiefs took full advantage of the cocoa export drive. They appro­
priated communal land that was lying fallow and used it to grow
cocoa, making use of the labour of dependants or those people
with obligations to them. A similar process affected the traditional
Celtic communities of Ireland.51
Such are the dominant characteristics differentiating traditional
Law in Traditional Societies 223
and modem attitudes towards property, the former merging with
the latter as a result of historical change. So far, however, we have
remained at the level of generalizations. We will now make a
more detailed study of the way the landholding systems of some
sub-Saharan African societies operate.
B: Landholding in operation in sub-Saharan Africa: the
work of E. Le Rov and the I ATP team
126 Social complexity and the multiplicity o f landholding systems
The research carried out since 1969 by E. Le Roy and members
of the LAJP team has led to the identification of three superim­
posed levels of landholding, distributed as a function of the com­
plexity of the society under consideration: the greater the
complexity, the more numerous the levels on which landholding
is organized. This is shown in Table II.2.1.52
This typology highlights a correlation between complexity in
social structure and the progressive influence of specialized political
authority; the appearance of the state, dominated by an individual­
ist mode of thought, characterizing complex societies. Once again
we are presented with the principle of an accumulation of levels,
their number varying from society to society (this does not imply
a chronological order of the unilinear evolutionist variety). The
sources of law also vary in the degree of pluralism they exhibit. The
same principle applies to the land. All societies have a system of
land use, but they do not necessarily all have systems of allotment
or distribution. We will define these three types of landholding
more closely.
127 Systems o f land use
The system of land use is the body of rules which governs rela­
tions with the environment and the use of land within the land-
holding group. From this definition several inferences flow.
Land use is affected by the means by which land is worked and
this is in turn determined by the personal status of the user. If the
user is of very low status, labour is assigned; if land use is by
dependent kin or in company with others who enjoy the same sta­
tus, it is co-operative labour; an individual may also work as a
224 Legal Anthropology Law in Traditional Societies 225

representative of a previous incumbent, or may be allotted land heavy (usually linked to a contractual framework laying down
when a group leader directly makes land over to him. obligations, and sanctions in case of breach of contract);
Land use is determined by the control over production. We production through co-operation, where the work is freely
may discern several different types: engaged in and there are no strong sanctions (often local resi­
production by contribution, if the work is compulsory and dence groups; co-operation within a village, for example).
sanctions are heavy (by political authority);
production through joint responsibility, where the work is Productive activity is protected by fertility pacts, involving
compulsory and sanctions are weak (family mode of produc­ man-God relations. The pact can be long-standing: there is a
tion or residential segment); belief that the founding ancestor entered into a pact with the
production through agreement, where the work is freely powerful spirits of the locality. It can also be repeated by regular
engaged in, but where sanctions for failure to execute tasks are sacrifices. In this system, rights to land are freely exchanged, since
they do not leave the group.
I Some groups, such as hunter-gatherers, articulate all their rela­
0 tionships internally, and have only one form of land-use.

o
1
C/5
t
E
9 g

!! §E o§ ü» -as
However, there are many other societies where groups have more
complex relations: including the distribution of produce, to which
we may add the allotment of land.
s?
128 Systems o f distribution o f produce and allotment o f land
3 The system of distribution of produce determines the communication
'S
I .£
which takes place between groups and individuals in the course of
such distribution. It involves the means whereby produce from
co the land, henceforth treated as part of the group’s wealth, is dis­
tributed within the group or externally to the group. The criteria
co a 3 c0 through which distribution takes place are dependent on the
■g •g
(J ‘E
co •§
bû respective hierarchical positions of the groups, the level of integra­
a •§ *od 32 1
is
p
H c<0 •g & tion of the individual in the group or groups, the role the individ­
o (X
ual plays in the economy and the creation of wealth.
G The system of allotment of land concerns the external relations of
es
groups where these exist, which is usually the case with sedentary
O societies possessing specialized political and legal instruments (in
I ,? ,
S) « « « 2 ”2CO —
o the form of a chiefdom or a kingdom). In essence it consists of
o s e e bi» 4e» g 4g)
<
o se .ss sS •6 various forms of inter-group land allotment and leads to the cre­
.s .s" SOS t> & •§
o,
ation of a hierarchy, or the attribution of specific responsibilities
over land. In this system, in contrast to the system of land-use,
2o
land is inalienable: once allotted, it will no longer leave the land-
g I holding group. However, land may circulate within the group:
oo
either as a result of death, or between the living, following the
■8
H £ needs and status of individuals.
 226 Legal Anthropology
A number of different authorities are involved in the allotment
of land and distribution of produce. Amongst these, the land chief
and the lineage chiefs play vital roles.
C: Land and authority
129 Land chiefs
The role of a land chief has been described by Verdier.53 A land
chief is the representative of the oldest lineage, inheriting the rights
and responsibilities enshrined in the pact which the founding
ancestor made with the earth. His role is not political in nature: a
land chief has authority over men because he has authority over
land, a political chief has authority over land because he has
authority over men; the land chief derives his power directly from
the land, the political chief derives his power from men and it is
vested in him by heredity or election. The power of a land chief is
generally more closely associated with the sacred than that of a
political chief (a Luunda proverb says: ‘The cilool [political chief]
is the ashes the wind carries away; the mwaantaangaand [land
chief] is the charcoal that remains.’ This differentiation of roles is
sometimes followed by a differentiation in identity: either the same
person is both land and political chief; or there are two chiefs, one
representing each role; or there is only a land chief. The existence
of two chiefs is generally the result of immigration, or the merging
of two ethnic groups. In general the new arrivals, rather than con­
fiscating the rights of the original occupants, which could bring
down the wrath of the spirits of the earth, attempt to form an
alliance with them. Thus a political chief, drawn from the immi­
grants, becomes a deputy to the land chief, ensuring the protection
of the new community. In contrast to a political role, the role of
land chief is above all ritualistic, to which authority over land may
accrue. When the individual holding this role carries out ritual
functions, he is called ‘priest of the land’: he controls the celebra­
tory calendar in the unfolding of the farming year and must deter
or offer remedies for any action which threatens the life of the
community. All land chiefs have a ritualistic function: in this sense
the land chief is always priest of the land. However, the land priest
is not necessarily chief of the land, since he has only limited influ­
ence in the domain of landholding.
I
Law in Traditional Societies 227
130 The lineage chief
All lineages have rights over a sociolegal entity which we will term
‘lineage land’. This area is not coterminous with a territory; the
extent of lineage land is not always clearly defined, it is normally a
heterogeneous entity, not even static, to the extent that if one of
its segments or one of the lineage members moves in search of
new land, the lineage boundaries change. The lineage chief
should attempt a division of land to ensure the subsistence of all
lineage members. He is, in particular, the guarantor of the conti­
nuity of the lineage. Consequently the lineage chief should main­
tain the patrimony of the lineage (the prohibition against the
extra-lineal transmission of land outside the lineage, and exclu­
sion of women from inheritance of land (although barred from
inheriting land they may, in a matrilineal system, transmit rights
held by their brothers to their own descendants). The lineage
chief also ensures, in the event of the segmentation of the lineage,
that the land is maintained as an integral whole: either, if the area
of land remains static whilst the population of the lineage grows,
the lineage chief reorganizes land rights and redistributes land; or,
if lineage members clear fresh land, he applies rules which will, in
some cases, incorporate this land into the lineage patrimony
(mainly when those who have cleared the land have not disposed
of this land during their lives, or have transferred it to another
member of the lineage).
Thus it emerges that control over land is determined in accor­
dance with the pluralist nature of power dear to sub-Saharan
African societies: political chief, land priest, land chief (and, with­
in the lineage, individuals ranked according to status), all play
complementary roles in the administration of land, their specific
powers guaranteed by the legitimation processes associated with
each of these authorities: the land chief has a sacred link with the
land; the lineage chief has a tie with the land through filiation; the
political chief plays a protective role.
Ill CONTRACTUAL OBLIGATIONS
The study of contractual obligations in traditional societies has
long been encumbered by the misconceptions of late nineteenth-
century evolutionists. In their view, the obligations of an individ­
ual depended, overwhelmingly, on his status, and not on his will.
 228 Legal Anthropology
Recent developments in theory have confirmed the existence of
contract in these societies, and Le Roy’s research has demonstrat­
ed how contractual obligations are made and sanctioned, and
their execution secured by guarantees.
A: Status and contract: developments in theory
Maine’s theories emphasizing status rather than contract enjoyed
a broad consensus of agreement until the mid-twentieth century.
Subsequent criticism has led to a reconsideration of the role
played by contractual obligations in traditional societies.
131 M aine and the prim acy o f status
According to Henry Sumner Maine, contractual obligationships
are characteristic of modem societies. In traditional societies it is
the status of the individual within society and the groups which
make up society which determine obligations, privileges and
responsibilities —not the will of individuals. In its time this evolu­
tionist thinking was an innovative approach: it countered the
ideas of Locke, Rousseau and Hobbes, for whom society was
formed through an agreement between its members (see all the
‘social contract’ theories). Durkheim further refined the theory.
He made three distinctions: status and contract; mechanical inte­
gration (status) and organic integration (contract); repressive
legal systems (status societies and mechanical integration) and
retributive legal systems (contractual societies and organic inte­
gration). However, the interesting aspect of his approach is that it
relativizes these contrasting notions in expressing them as tenden­
cies: all societies contain both status and contract, traditional
societies laying more emphasis on the former, and modern soci­
eties on the latter. Marcel Mauss and P. Huvelin developed
Durkheim’s ideas. In the twentieth century, Maine’s theories
were confronted with ethnographic data and this ushered in more
deep-seated challenges.
132 Criticism o f M aine’s theory
Criticism of Maine’s theory began in 1950 when it was called into
question by the anthropologist Robert Redfield. Redfield took
Maine to task for his reliance on Greek, Roman and Indian
sources, and for having believed, following evolutionist thinking,
Law in Traditional Societies 229
that this data could be directly extrapolated to traditional societies
which could still be observed. In 1964 Hoebel pursued this analy­
sis. In common with Durkheim, he believed that status and con­
tract were not mutually exclusive, but existed in different degrees.
In 1981 Leopold Pospisil went further in arguing, principally,
that the classic evolutionist model should be stood on its head:
contract could precede status. Pospisil used the Kapauku (New
Guinea) as an example. In the pre-colonial era Kapauku society
was characterized by the high degree of initiative and personal lib­
erty accorded to its members. Colonization witnessed the trans­
formation of this society towards the status model; a central
power was put in place, which restricted individual liberty.
What, in conclusion, do we make of Maine’s ideas and the sub­
sequent criticism of them? In our view, three points emerge. On
the one hand, historical and ethnographic observation demon­
strates that it is impossible to find societies which conform exclu­
sively to either the status or contract model: Durkheim and Hoebel
were right in stressing that the two modes coexisted in all societies.
However, it is also the case that in general each society is charac­
terized by the dominance of one model over the other. This domi­
nance, evolutionist thinking to the contrary, is not chronologically
determined. As Pospisil has stated, status can follow contract. Our
century offers many examples of such developments: on a number
of occasions totalitarian or authoritarian regimes have succeeded
democratic systems, determining the rights and duties of individu­
als principally on the basis of class. Social organization rather than
historical inevitability determines the primacy of contract or status.
The former is emphasized in politically conservative modem soci­
eties [sociétés libérales], where groups tend to be accorded less
prominence than individuals. The latter enjoys a dominant posi­
tion in two types of society: first, communal societies - this applies
to traditional societies, particularly sub-Saharan African societies;
second, collectivist societies - many modern dictatorships.
None the less, even in traditional societies, contractual obliga­
tions always exist in some form. We will now examine these
obligations.
B: C ontractual obligations in traditional societies
We are here indebted to the research of E. Le Roy,Mcentred prin­
cipally on the societies of sub-Saharan Africa. After making some
 230 Legal Anthropology Law in Traditional Societies 231

general statements, we will examine, in turn, the procedures payment falls due will all be stipulated). However, dations are not
through which contracts are drawn up, the character of contractu­ always the object of legal sanctions, there being no competent
al obligations, the application of contracts. authority to enforce them: if one party feels aggrieved, conciliation
will be employed to resolve the conflict.
First come general statements. In semi-complex societies, political authority is clearly differen­
tiated and interaction between groups is regulated not only
through alliances and dations, but in submitting to legal rules
133 The appearance o f contractual obligations external to the groups and sanctioned by judicial instruments
According to Le Roy, contractual obligations appear only at a capable of imposing a settlement - where conflict between groups
certain degree of complexity in social structure (Table II.2.2). follows the failure of conciliation. For Le Roy, the minimum con­
In elementary societies where no sociolegal control mechanism ditions in which contractual obligations can obtain now exist: as
exists within the group, the individual who wishes to establish a in the case of gifts and dations, there are subjects (the parties)
tie with another individual has no other option but to offer a gift and an object (the service or possession), but a legal sanction also
or a service, without any a-priori guarantee that these initiatives exists, which is the distinctive feature of the contract.
will be reciprocated. If there is no reciprocation, the tie will be In complex societies (and our societies in particular), while gifts
1 broken and conflict may even ensue, unless exterior pressure in and generosity have always played their part in social life, legal
the form of conciliation or arbitration is applied. agreements between individuals are mainly subject to contract.
In semi-elementary societies, other relationships exist, over and There is clearly some similarity between Le Roy’s theory and
above the bonds arising from gift-giving within the group. These Maine’s, since it only identifies contractual obligations with a par­
are based on inter-group communication and are guaranteed by ticular level of complexity in sociopolitical structures. Yet it is not
alliances based on dations. Dations are more binding for the par­ an evolutionist theory, because the degrees of increasing complexity
ties involved than gifts: they are clearly specified and their reci­ are not associated with historical development.
procity well defined (for example, when a transfer of wealth For a number of writers (A. N. Allott, A. Epstein, M.
accompanies a marriage, the sum, the place and the dates when Gluckman, M. D. Sahlins), contractual obligations can exist only
between individuals who are not affected by any other ties.
Table II.2.2 Social structure and contractual obligations However, Le Roy notes that individuals can be linked by a num­
ber of ties (blood, alliance, etc.) and still resort to contract in the
Structure Interaction Society Agreement sanctioning of certain activities. This is the case in our own legal
systems: marriage contracts [in France] lay down both the recip­
elementary internal communal gift rocal rights and duties of husband and wife, and also arrange­
ments concerning their estates. We may note that contracts
semi-elementary internal, internal- communal gift, dation between couples have always been viewed with a certain amount
external of suspicion: the ruling against sales between husband and wife is
as recent as 1985. The ethnographic observation of traditional
semi-complex internal, internal- communal gift, dation, societies furnishes us with similar evidence. Thus amongst the
external, external contract Birwa (Botswana), studied by N. Mahoney,55 close kin or
neighbours are simultaneously bound by ties of ‘positive integra­
complex private-public individualist dominance tion’ with regard to a number of goods, and retain services and
of contract contractual obligations for specific transactions. Mahoney
believes that contractual obligations can exist irrespective of the
 232 Legal Anthropology
social distance which separates the parties, whether they are
strangers or close kin. However, they are organized in a different
way. In the first case (contractual obligations between strangers),
the aim is limited to binding two people for a specified period in a
particular transaction. In the second case (contractual obligations
between close kin), creating a bond through contractual obligations
enables the parties to isolate a particularly sensitive and conflict-
prone area of their activities. In recourse to contract parties are
taking preventive action, providing a better long-term guarantee
for their mutual obligations.
In other words, through contractual obligations, parties choose
to bring law into those domains of social life which they consider
as particularly important for the maintenance of social harmony
and economic reproduction.56 In our opinion contract, whilst it
may be universal, remains more frequent between individuals
who have minimal contact with each other - strangers - and when
the object of the transaction has a particular status which varies
with the importance it is accorded by the parties. However, in our
view there remains one very important variable: the implementa­
tion of the contract depends on the relationships of those
involved. In reality contract is neither experienced nor perceived
in the same way, depending on the social or affective proximity
existing between the parties. When these relationships are rela­
tively distant, the purely contractual side of the obligation domi­
nates: this would be the case, for example, in buying a car from a
large dealer. In contrast, the closer the parties are in a shared
community of life, the more the contractual aspect of the obliga­
tion is concealed, although still present. It sees the light of day
only when the obligation is under pressure or is breached. This is
the case with marriage contracts: a couple view their married life
in legal terms only when this arrangement is threatened or is col­
lapsing. Thus it would appear that communal obligations and
contractual obligations are different in nature, though they may
coexist and penetrate each other. Contractual obligations are
important in individualist societies] they may also be found in a
communal context, as many examples from sub-Saharan Africa
confirm.
L aw in Traditional Societies 233
134 Contractual obligations and the communal model
As we have seen,57 the communal social model attempts to bal­
ance the needs of the group and the individual, whereas the indi­
vidualist model gives more emphasis to the latter. It follows that
in traditional societies, the concepts of obligations, individual
freedom and contract are more restricted than in our modem
societies.
The concept of obligation58 is contained within the two main
principles of traditional law we have already described5*: the func­
tional ascription of status, and the reciprocity of rights and duties.
In other words, obligation is based less on personal responsibility
than on the individual as a representative of the group or groups
to which that individual belongs. Similarly, obligations which
might threaten the continuity of the group are excluded: thus the
prohibition against extra-lineal transmission of land prevents a
stranger from acquiring lineage land.60 We may also note that
contracts binding parties to things are more common than con­
tracts binding parties to each other by their will alone (consensual
contracts). This is because the former, in their real or physical
aspects, are more appropriate than the latter to the group’s con­
trol over individuals.
We will adopt Le Roy’s definition of the contract in sub-
Saharan Africa as ‘a convention organized through the remittance
of an object, followed by an exchange of words’. Thus the three
fundamental relationships we have already described reappear61:
person-to-person (the representatives of groups are committed
through their words); person-to-thing (a thing is remitted); per-
son-to-God (the two preceding relationships may be validated by
an oath, an appropriation ritual, or a sacrifice whose purpose is
less to lay down the law than to protect it by giving it a place in
the invisible world).
However, if contract pertains to things, it treats things differ­
ently depending on the value accorded to them by the respective
groups the parties belong to. Some things cannot be subjected to
contractual agreement which would involve their permanent sur­
render: these are kinship possessions, exclusively identified with
the family group (land, altars, rimai artefacts). Other things may
be subject to contract only in certain circumstances and with the
agreement of the group concerned: these are communal posses­
sions (pasture in the case of pastoralists, livestock in the case of
234 Legal Anthropology
farmers). Some things are subject only to the will of their owners,
but do not circulate freely because of their personalized nature:
these are personal possessions (jewellery, clothing, tools). Finally,
some items are the preferred objects of contractual obligations,
since they are subject only to the will of the contracting parties
and circulate readily: currency (money, or money equivalents
such as set quantities of salt or honey, rolls of cotton fabric, etc.).
The process by which things become subject to contract thus
depends on the social role of these possessions. Similarly, not all
individuals possess the required status to automatically enter into
contractual obligations: the principle of representation62 means
that only the representatives of groups can perform this function.
Each society determines the level in the structure of social organi­
zation at which a representative can operate: the restricted or
extended family, the lineage, etc. The larger the reference group,
the fewer the representatives; the more developed the group, the
older those responsible will be. Whatever the criteria of selection,
law resides in the individual: he is not mandated by the group and
can protect his own personal interests. However, his freedom is
not unlimited, because he is also the representative of his group.
Ideally he should satisfy both his personal interests and the inter­
ests of his group. These interests are of a complementary nature
and do not exist in opposition to each other.
Communal organization thus involves reciprocity between the
interests of the individual, which should be restrained, and those
of the group, which should be guaranteed. These imperatives do
not seem to affect the variation encountered in contracts, as their
classification demonstrates.
135 Classification o f contracts
Contracts may be classified according to their object (T. D. Elias)
or their function (E. Le Roy).
In the former category, the main types are: marriage contracts
(several contracts are sometimes necessary to conclude a mar­
riage, binding the husband-to-be and wife-to-be, their family
groups and finally the whole community); contracts relating to
co-operative labour (whether between kin or not they establish an
agreement, temporary or permanent, pooling labour resources
and equipment for certain farming, building, or maintenance
Law in Traditional Societies 235
activities); stock-rearing contracts (in some farming societies, the
owner of livestock may entrust part of his flock or herd to a neigh­
bour who will rear them for commercial gain); various contracts
hiring out services (hiring a midwife for a delivery); sale contracts,
necessary to the operation of fairs and markets.
Classification according to function has the advantage of being
rather more precise. We may distinguish between family contracts
(marriage, wet-nurse, delivery); social contracts (education, ritual);
contracts related to production (loans, exchange); farming contracts
(co-operative labour) or pastoral contracts (stock-raising); contracts
of exchange of possessions or property in a residential context
(mutual exchange) or in a market (sale, pledging); contracts for
commercial expeditions (caravans); religious contracts (for the
employment of magicians or sorcerers); political contracts (con­
cerning the provision of prestige goods of chiefs). Other forms of
classification may also be envisaged. The nature of the wealth
which features in contracts may be taken into account; thus we
may distinguish between real contracts (concerning physical or
material possessions); real and formalist contracts; real, oral and
formalist contracts. Contracts may be classed according to the
resulting obligations: they may be symbolic or onerous. The
formulation of these last-mentioned two typologies centres on
the process which closes a contractual agreement; to which
process we will now turn.
We turn to our second point: procedures used in drawing up a con­
tractual agreement. Two phases can be distinguished in the con­
tractual agreement: formation and ratification.
136 Formation o f the contractual agreement: the thing and the word
The formation of the contractual agreement can centre on the
thing itself [la chose, the ‘thing’ or ‘matter’ is not confined to
moveable possessions: TN], on the word, or on a combination of
the two. As regards a thing, its surrender may be involved (in con­
tracts for the exchange of possessions, protection, marriage, farm­
ing and rimai contracts); it may involve the completion of transfer,
granting possession of the thing, or access to the thing (access to
allotted land can be concretized by handing over a sod of earth,
sometimes mixed with the blood of a sacrificed animal); it may
involve the commencement of work on a thing (co-operation,
11
 236 Legal Anthropology
commercial expedition and training contracts). Because of the
realist nature of contracts in sub-Saharan African societies, the
exchange of words is secondary to activities concerning the thing
itself. The exchange of words is generally associated with the pres­
ence of witnesses and formal procedures. The language used may
be legalistic or vernacular, religious or secular, and may or may
not have recourse to precise formulas.
137 Ratification o f contractual agreements: form al and non-formal
contracts
In oral systems of law, the ratification of a contract can take place
on the level of each of the three fundamental relationships: person
to-thing (surrender of the thing), person-to-person (exchange of
words in front of witnesses), person-to-God (various sacrifices
invoking invisible powers as witnesses). However, each of these
relationships plays a different part in the ratification of the con­
tract. The person-to-thing relationship may be used to ratify a
contract which is non-formal and is based on possession of the
thing. Person-to-person and person-to-God relationships cannot,
on their own, be used in ratification, unless they are associated
with the person-to-person relationship and possession of the
thing: the contract is thus formal, because it consists of several
types of relationship in association. The classification of these
combinations, as we will see, depends on the classification of the
thing subject to contract: the more the nature of the thing
involves the participation of the groups to which parties to the
agreement belong, the greater the number of relationships which
feature in the ratification of the contract, and the more formal it
will be, and vice versa. Such is the organizing principle of the
summa divisio63 of sub-Saharan African societies.
Contracts concerning communal possessions are real, oral and
formal; they involve three relationships: person-to-thing, person-
to-person, and person-to-God. The importance the group attach­
es to these possessions requires that their destination and use be
clearly defined in the contract. If these possessions are to be
attributed to another group, the links which tied them to their
group of origin must be cleanly severed, hence the recourse to
formalism, consisting in the intoning of ritual formulas (a feature
of early Roman law) or ceremonial procedures in the handing
over of the thing in question.
Law in Traditional Societies 237
Contracts concerning personal possessions are real, oral and non-
formal; they involve the two relationships, person-to-thing and
person-to-person. Control over destination is not necessary: if
formal procedures do nevertheless exist, they are accessory and
are not essential to the ratification of the contract. On the other
hand, the way personal possessions are used is always controlled;
an exchange of words occurs on the surrender of the thing or
when work begins on the thing.
Contracts involving currency are real, non-formal, and need not
be oral; the person-to-thing relationship is sufficient to ratify
them. The non-formal aspects are accounted for, as in the preceding
category, by control over destination. The absence of emphasis on
an oral dimension does not necessarily mean no words are spoken
(though the practice of ‘silent commerce’ does not rule this out),
but that there is no requirement to pronounce the quantity and
quality of the thing, its means of payment, etc. This flexibility
stems from the fact that currency constitutes only accessory
wealth, and is little regulated. The ratification of the contract lies
in the possession of the thing. In conclusion, we may observe that
whilst the classification of things correlates with a classification of
contracts, the common denominator of all contracts (in sub-
Saharan Africa) is their real dimension. However, contractual
obligations may also involve providing services.
We will first examine the nature of the services provided under con­
tractual obligations and then consider their legal character.
138 Socially determined services, symbolic and onerous
In line with communal thinking, the social outcome of the service
receives more emphasis than the economic value. This has two
consequences. The nature of the service depends on the social
proximity of the parties involved. Socioeconomic change, in
negating the communal model, can modify the nature of contrac­
tual services; and the elasticity of social needs can also intervene.
We will expand on these three variables.
Social proximity means the degree of proximity or distance
which unites or separates individuals or groups in a range of
social situations (family, religion, politics, etc.). As a general rule,
the greater the social distance, the greater the tendency for con­
tracts to stipulate onerous and anonymous services; the closer the
 238 Legal Anthropology
proximity, the more personalized and symbolic the services will
be. In other words, the closer the degree of communal organiza­
tion, the closer the social, as opposed to the economic, dimen­
sion; and vice versa.
Socioeconomic change can increase social distance and contribute
to the primacy of onerous services over symbolic services: this is a
particularly sensitive area in the process of acculturation ushered
in by European colonization. Thus dotal marriage has tended to
be transformed into marriage through bride-purchase, where the
sum involved is of more importance than the alliance between the
respective family groups of the couple.
The elasticity of social needs is the third variable and can be con­
sidered in conjunction with the preceding two, since it can influ­
ence social proximity and can vary with historical circumstances.
The general rule is that the more elastic a social need becomes,
the closer the social distance and the more symbolic contractual
services will be. This is the case where social needs, in different
domains, can be satisfied without the appearance of marked social
inequality, thanks to the abundance of social collateral capable of
satisfying these needs. This applies to marriage alliances, where
certain practices (such as the infanticide of girls, or polygamy) do
not threaten the relative equilibrium of the sexes; or land transac­
tions where land is abundant and productive (in contrast, the eco­
nomic value of these transactions will achieve primacy where
there is a growing shortage of land, because of a rapid rise in pop­
ulation, for example). Generally speaking, the more economic
value is emphasized to the detriment of social value, the more
onerous provisions and services will dominate symbolic provisions
and services.
139 The legal character of contractual obligations
The general characteristics have been well rehearsed and consist of
the nature of things subject to contract, the identity of the con­
tracting parties and their status, the procedures in contract forma­
tion. Specific legal characteristics are a function of the nature of
the provision of service (it can consist in performing an action or
refraining from performing an action; labout duties or payment in
kind); rates of payment and collateral, which are particularly rele­
vant in onerous contracts; the timing of the execution of the con­
tract; the enforcement of its execution: if the contract contains
Law in Traditional Societies 239
enforceable clauses, these will specify when recourse may be made
to them, or will determine penalties; if there are no enforceable
clauses we are confronted once again with the role of sanctions in
traditional societies. The question of enforceable clauses intro­
duces a question of a more general nature.
Various sanctions may be applied in the event of failure to comply
with contractual obligations; these can be guaranteed by securi­
ties. Before examining these sanctions, however, we must define
the significance of the concept of legal responsibility in traditional law.
140 Legal responsibility in traditional law
In the legal systems of our modem states, legal responsibility is
divided into two categories. Civil responsibility concerns the
reparation of damages caused to others, through an objective
appraisal of the extent of the damage. Penal responsibility con­
cerns the sanction occasioned by an injury, where that injury is
directed not against an individual but against the whole of soci­
ety; the intentions of the perpetrator of the injury are taken into
account. The two forms of responsibility can in some cases
merge. Civil responsibility can be further divided into contractu­
al responsibility, resulting from the failure to execute an obliga­
tion stipulated in a contract, and criminal or quasi-criminal
responsibility, which concerns the intentional actions (criminal)
or unintentional actions (quasi-criminal) of an individual (a civil
wrong [délit] of a tortious nature is not synonymous with a crimi­
nal infringement [infraction]). Much ink has flowed in deciding
whether these categories are applicable in traditional law. E. Le
Roy states that misleading evolutionary premises have been
applied to the problem. Clearly, traditional law does not distin­
guish, as does modern law, between natural, civil, penal, con­
tractual, criminal or quasi-criminal responsibility. However, it
would be wrong to deduce that this stems from the incapacity of
traditional legal thought. If responsibilities are not subdivided,
this is because of the communal character of these societies, and
not because of an inability to make fine legal distinctions. In our
legal systems, these distinctions are for the most part based on
the necessity of separating the fields of action of the individual
and society, the latter represented by the state. No such distinc­
tion exists in the communal social model, where there is to all
 240 Legal Anthropology
intents and purposes only one kind of obligation: communal
obligation. Depending on the situation, the group may be direct­
ly implicated and the individual indirectly, or vice versa.
However, in all cases the interests of the groups and the individ­
uals who represent them are closely identified: the interests of
the groups are always at stake, in varying degrees, which makes it
difficult in traditional law to find the distinction made by mod­
em law between civil and criminal responsibility. Any failure to
fulfil an obligation constitutes, in varying degrees, a social injury,
requiring legal sanction. This sanction can take a number of
forms.
141 Classification o f legal sanctions
In traditional societies, unlike modem individualist societies,
sanctions for the failure to execute contracts have a social rather
than an economic character. The social character of the sanction
is all the more accentuated in that the group considers itself con­
cerned by the injury. This is expressed mainly in corporal or
moral punishment. On the other hand, when personal interests
are involved, punishment will tend to consist of material restitu­
tion.
Corporal punishment is diverse in character (from public beating
and mutilation to enslavement or death) and is used in two areas.
It occurs most frequently in contracts with a political dimension,
where failure to fulfil obligations threatens the dignity of the chief,
and through him the social order. Corporal punishment may also
be used in the case of absenteeism or obvious lack of goodwill in
repairing material damages.
Moral punishment takes the form of public opprobrium and is
frequently encountered in the context of failure to fulfil obliga­
tions in contracts concerning goods or services —this applies to
co-operative work contracts and marriage contracts, in particular.
The opprobrium can extend to placing the individual in quaran­
tine, a sanction which is psychologically difficult to bear in a
small-scale society where the interaction of individuals is vital.
Material restitution may be applied in a number of circum­
stances. First it may involve forced labour in the initial execution
of service contracts where time is of the essence. Second, the con­
tract may be pronounced null and void (if provisions or services
Law in Traditional Societies 241
in a land rental contract are not honoured, the right to farm the
land lapses and returns to the original holder; the medicine man
who does not achieve the desired effect for his clients must
reimburse them). Finally, compensation for injury suffered and
payment of damages is used particularly in contracts concerning
livestock-herding; also brokerage contracts in the case of fraudulent
description of goods, and caravan contracts where the caravan
leader has disregarded the instructions of those who have com­
missioned him.
Between the voluntary or compulsory fulfilment of contractual
obligations by the contracting parties, there exists a middle way:
the use of guarantees.
142 Security
A security is a guarantee given to a creditor by a debtor; it may
involve a third party, a secondary debtor to the main debtor who
will guarantee the payment (personal security), or the designation
of one or more possessions which may be used to repay the debt
(material security).
We have established that contractual obligations are most often
related to the ties binding individuals belonging to different
groups.64 This is also the case with securities, as Verdier’s classifi­
cation demonstrates. He makes a clear distinction between mutu­
al aid between members of the same community (through kinship
and/or residence), and legalistic forms of co-operation or
integration. Mutual aid is based on kin or neighbours. Legalistic
forms of co-operation stem from a guarantee specifically associat­
ed with the fulfilment of a contractual obligation. Furthermore,
whilst the security may particularly concern the relationships
between members of different groups,65 the groups themselves are
not automatically involved: the nature of the debt will not always
be such as to justify their participation. A decision is taken by
group representatives during the formation of the contract deter­
mining whether the group’s guarantee will be given or not. If the
group does not guarantee the contract, the creditor will have to
obtain the required security from the debtor.
Securities can also be distinguished by the nature of the guar­
antee provided, whether it is material or personal. The thesis dear
to classical jurists (based entirely on the study of Roman law)
242 Legal Anthropology
once again views the distinction through an evolutionist view­
point: ‘primitive societies have often had recourse to personal
securities, ignoring the guarantee which material securities could
provide . . . material securities only appeared after personal secu­
rities. They involve, in fact, a well-developed system of law which
can distinguish between a thing and the law pertaining to things
(droit réel [as opposed to droit personnel]), and between different
manifestations of this law.66 Here too, ethnological data tends to
contradict such a statement: if traditional law provides personal
securities, it does not exclude the use of material securities.
Personal securities are identifiable in a number of contexts,
normally associated with loans where the lender wishes to secure
against the possibility of the borrower’s insolvency. Thus the
Chagga (Tanzania) have recourse to three kinds of personal secu­
rity. First, a third party undertakes to use his influence with a
debtor to make him fulfil his obligations; the debtor will break a
stick in two, one half will be given to the creditor, the other half
to the third party. Second, a third party engages himself as guar­
antor: should the debtor take flight or die without heirs he will
pay the debt. Third, more generally, the third party makes himself
liable for payment in all cases where the debtor finds it impossible
to pay: he spits into the palm of his hands and holds them out to
the creditor who takes them in his own.
Whilst identifying material securities is more difficult, their
existence would seem difficult to deny. Dotal gifts given by the
family of the husband-to-be to his future wife can be interpreted
as a security guaranteeing the marriage. Furthermore, in a num­
ber of cases, often concerning subsistence debts (in the case of
famine or want the debtor borrows the most basic requirements
to sustain life), or debts incurred to carry out ritual sacrifices to
the earth and the ancestors, or to pay for a dowry, the debtor
pledges, until such time as the debt has been cleared, either him­
self, or one of his dependants, following procedures which have
an actual or a material basis. Amongst the Ashanti, when a debtor
pledged a girl dependant and found it impossible, after a certain
length of time, to repay his debt, the girl often married the creditor,
some confusion existing over the debt and the dowry the creditor
would in normal circumstances have to provide; likewise marriage
could serve to camouflage the existence of a pledge; in all cases,
Law in Traditional Societies 243
the existence of sexual relations between the pledged dependant
and the creditor extinguished the debt.
143 General conclusion: convergences and divergences between
traditional and modern law
Our rapid overview of kinship, landholding and contractual rela­
tions enables us to make an observation of some importance for
our discipline. In spite of evolutionist prejudices, there is no radi­
cal distinction, in nature, between law in modem societies and
traditional societies. In each of the three areas we have described,
we have noted the presence of similar elements in modem societies
and primitive societies. The married couple is present in all
societies; the prohibition on incest is almost universal; complex
systems of marriage exchange exist in modem societies, but also
in traditional societies. As regards property, we have seen that
land is not always inalienable and can feature in a number of con­
ventions. The study of contractual obligations demonstrates that
they are neither a privilege, nor an invention, of modem societies.
Similarly traditional law is not ‘primitive’, as Lévi-Strauss has
commented: ‘It was my intention to show [in La Pensée sauvage]
that there is in fact no gulf separating the thought of so-called
primitive societies and our own . . . these forms of thought are
ever present in our midst. We often allow them free rein. They
coexist with forms of thought which purport to be scientific; they
are also contemporaneous.’67
Yet it would be to fly in the face of the evidence to say that
modem and traditional law are identical: whilst the same ele­
ments are to be found in all systems, they combine to form differ­
ent systems, through the relative importance they are accorded.
The real criterion is not diachronic, but resides in the momentum
of each society. Depending on whether the model chosen is com­
munal, individualist, or collectivist - and historical change plays
its part in this choice - the corresponding body of law will present
the characteristics of traditional law or of modem law. We must
now examine the settlement of conflict in traditional societies to
see whether this justifies a similar conclusion.
 244 Legal Anthropology
NOTES
I Genesis 34.9-10. However, this exchange is not ‘natural’. In
Mistral’s Provence, there was a saying: ‘Marry in your village,
if possible in your street, if possible in your house.’ If society
had not imposed the prohibition of incest, it might not have
appeared (cf. below, nos 114-15).
2 St Luke 20.34-7.
3 Bay of Bengal.
4 After F. Zonabend, ‘De la famille. Regard ethnologique sur la
parenté et la famille’, in Histoire de la famüle, ed. A. Burguière
et al., Vol. I (Paris, A. Colin, 1986), p. 22.
5 See G. P. Murdock, Social Structure (New York, Macmillan,
1949).
6 After A. Cuvillier, Manuel de Sociologie, Vol. II (Paris, Payot,
1972, 357 pp.).
7 See C. Lévi-Strauss, in The Elementary Structures of Kinship,
trans. J. H. Bell, J. R. von Sturmer and R Needham (London,
Eyre & Spottiswoode, 1969); he clearly explains this mecha­
nism.
8 From Zonabend, ‘De la famille’, op. cit., p. 26.
9 ibid., p. 56.
10 ibid., pp. 53-4, and Cuvillier, Manuel, op. cit., pp. 560-1.
II See Lévi-Strauss, Elementary Structures of Kinship, op. cit.
12 Amongst the 250 societies studied in Social Structure,
Murdock states that 105 were patrilineal, 52 matrilineal, 18
bilineal, 75 cognatic; 38 had a rule of matrilocal residence, 8
avunculocal, 146 patrilocal, 19 successive, 17 neolocal, 19
bilocal (choice of residence is determined by factors other
than filiation). Thus patrilocal residence is dominant.
13 Lévi-Strauss, Elementary Structures of Kinship, op. cit.
14 Extract from Zonabend, ‘De la famille’, op. cit., p. 53.
15 See above, no. 110.
16 Domat, Traité des Lois, chapter 7, 1.
17 For a definition of the communal model, see above, nos
103-4.
18 This practice, in attenuated form, exists in our societies in the
form of the help given to young married couples by their parents.
19 See above, no. 110.
20 See above, no. 111.
21 See D. F. Aberle, ‘Matrilineal descent in cross-cultural per­
Law in Traditional Societies 245
spective’, in Matrilineal Kinship, ed. D. M. Schneider and K.
Gouth (Berkeley and Los Angeles, CA, University of
California Press, 1961), pp. 655-727. See also H. E. Driver,
‘Cross-cultural studies’, in Handbook of Social and Cultural
Anthropology (op. cit. above, no. 8), pp. 349-56.
22 See R. Cresswell, ‘La parenté’, in Eléments d’Eihnologie, ed. R.
Cresswell, Vol. II (Paris, A. Colin, 1975), pp. 170-2.
23 M. Godelier, ‘Inceste: interdit originel, propos recueillis par
G. Plessis-Pasternak’, Le Monde, 26 August 1987: 12.
24 Even here we must distinguish between subgroups within
modem societies: peasants have long practised marriages
where the consent of the family groups is essential; in the
nineteenth century, the social group made up of the leading
industrial families was based not only on financial and indus­
trial exchange, but also on the exchange of marriage partners;
the family trees of these great families testify to this.
25 See C. Bonjean, ‘La sexualité des Français’, Le Point, 26
January 1987: 81-2.
26 Plutarch, Quaestiones Romanae, 108, Mor. 289 d.e.
27 R. Fox, Kinship and Marnage: an Anthropological Perspective
(Harmondsworth, Penguin, 1967).
28 See Lévi-Strauss, Elementary Structures of Kinship, op. cit., pp.
62-87; in the French edn, Les Structures élémentaires de la par­
enté (Paris, Mouton, 1967), pp. 5-29.
29 See above, no. 113.
30 Until recently, in our societies, a young man asked for his
intended’s hand in marriage from his prospective father-in-
law, who gave away his daughter in marriage: the terminology
employed is significant.
31 Lévi-Strauss, Elementary Structures of Kinship, op. cit., p. 24.
32 See above, no. 23.
33 This freedom is highly restricted: statistically and socially we
choose marriage partners only within specific social categories.
34 We will enter into more detail on semi-complex systems when
we examine African kinship.
35 See above, no. 109.
36 Extracts from Zonabend, ‘De la famille’, op. cit., pp. 39-40.
37 ibid., p. 40.
38 Our Western societies may have been more inventive in the
past. Thus a text of St Augustine’s on the matrimonial prac-
 246
Legal Anthropology
tices of the Romans in the archaic period implies that prefer­
ential marriage between cross-cousins was practised (The City
of God, 478, 66-75). For an ethnological commentary on this
text see P. Moreau, ‘Plutarche, Augustin, Lévi-Strauss: the
incest taboo and preferential marriage in ancient Rome’,
Revue belge de philologie et d'histoire, 56, 1 (1978): 41-54.
39 See below, nos 119-21.
40 See above, no. 118.
41 This African form of levirate differs from the Hebrew variety,
where the brother-in-law should marry his sister-in-law when
she is widowed and has no children.
42 See the results of the poll on the French and their religion,
published by Le Monde, 1 October 1986: 12-13.
43 See Lévi-Strauss, Introduction, Histoire de la famille, op. cit.,
above, Vol. 1, pp. 9-13.
44 ibid., p. 11.
45 H., L. and J. Mazeaud, Leçons de droit civil, Vol. 2 (Paris,
Monchrestien, 1966), p. 1060. Contra see particularly E. J.
Lampe’s very good overview, ‘Das Grundrecht des Eigentums
in ethnologischer Sicht’, in Persônlichkeit, Familie, Eigentum,
ed. E. J. Lampe (Opladen, 1987), pp. 291-305.
46 Concerning Greece in antiquity, we know that private owner­
ship of movables coincided with the appearance of social life
in structured communities (see L.-R. Ménager, ‘Les plus
anciens témoignages d’appropriation foncière en Grèce’, DC,
14 (1987): 105-28).
47 See below, nos 127-8.
48 See N. Rouland, ‘Pour une lecture anthropologique et inter­
culturelle des systèmes fonciers’, Droits, 1 (1985): 73-90.
49 J. Carbonnier, Flexible Droit (Paris, LGDJ, 1971), p. 177.
50 ‘The desire to possess is not an instinct, and is never based (or
very rarely) on an objective relationship between the subject
and the object. What gives the object its value is the “relation­
ship to the other person”. Only food has any intrinsic value for
someone who is starving. But few objects afford a constant
interest at all times and in all circumstances. “What is so des­
perately desired may be wanted only because someone else
has it.” An unimportant object assumes “great value . . . if
another person begins to take an interest in it”. The desire to
possess “is essentially a social response.”' Lévi-Strauss,
Law in Traditional Societies 247
Elementary Structures of Kinship, op. cit., above, p. 86.
51 See M. Godelier, ‘Economie’, in Eléments d'ethnologie, Vol. 2,
op. cit., pp. 98-9.
52 After E. Le Roy, ‘Démarche systémique et analyse matricielle
des rapports de l’homme à la terre en Afrique noire’, lecture
épistémologique d’une pratique de l’anthropologie du droit,
BLAJP, 3 (1981): 84.
53 See R. Verdier, ‘Chef de Terre’ and ‘Terre du lignage’, in
Etudes de droit africain et de droit malgache, ed. J. Poirier (Paris,
Cujas, 1965), pp. 333-59.
54 See E. Le Roy, ‘Cours d’Anthropologie historique et juridique
des contrats’ (unpublished, Paris-Brazzaville, 1972-3), p. 90
et seq.
55 See N. Mahoney, ‘Contract and neighbourly exchange among
the Birwa of Botswana’, Journal of African Law, 21, 1 (1977):
40-65. Shapera has made observations leading to similar con­
clusions amongst the Tswana; Pospisil describes contracts
between kin amongst the Kapauku of New Guinea (between
father, sons, half-brothers) and between co-residents.
56 More exactly, in the case of the Birwa the representatives of
two restricted families give a legal character to communal
labour, through contract, as a precaution against possessions
being confused with gifts or dations and treated in the wider
framework of the extended family or community through
alliance.
57 See above, nos 103-4.
58 We should note that an obligation is a legal tie through which
one party is constrained to give something to a second party,
or to perform a service. When the obligation stems from the
common agreement of the parties to the contract (which is not
always the case; there may be criminal obligations), the obliga­
tion is contractual.
59 See above, no. 104.
60 See above, no. 123.
61 See above, no. 96.
62 See above, no. 104.
63 The reference to the summa divisio in Roman law is not due to
stylistic impulse. Each society, to differing degrees, gives to
goods a particular emphasis which varies in proportion to the
value they have in the legal processes governing their transfer.
 248 Legal Anthropology
In Roman law res mancipi and nec mancipi are not transferred
in the same way.
64 See above, no. 133.
65 We do not, however, rule out the possibility of this taking
place between members of the same group, if, following
Mahoney (see above, .no. 133), we accept that contractual
obligations can exist within a large group, in the same way as
they exist between two smaller groups.
66 H., L. and J. Mazeaud, Leçons de droit civil, Vol. 3 (Paris,
Montchrestien, 1968), p. 9.
67 C. Lévi-Strauss, De près et de loin (Paris, O. Jacob, 1988), p.
154; translated into English as Conversations with C. Lévi-
Strauss, trans. Paula Wissing (Chicago and London, Chicago
University Press, 1991).
FURTHER READING
144 Bibliography o f the fam ily
Apart from the study of myth, kinship ties are the most complex
area in social anthropology, or, at least, the area where theory and
abstraction are the most developed. As a result, there are few
overviews of the subject. Further, readers should approach the lit­
erature stage by stage or risk being quickly out of their depth. The
clearest introduction to the subject is found in Les Domaines de la
parenté, ed. M. Augé (Paris, Maspéro, 1975, 133 pp.). This work
contains the basic definitions, and a good bibliography, ending,
however, in 1972. The following works should not present major
difficulties: C. Lévi-Strauss, The View from Afar, trans. J.
Neugroschel and P. Moss (Oxford, Blackwell, 1985); F.
Zonabend, ‘De la famille. Regard ethnologique sur la parenté et
la famille’, in Histoire de la famille (two volumes which contain a
number of outstanding contributions, with very good bibliogra­
phies), ed. A. Burgière et al., Vol. 1 (Paris, A. Colin, 1986), pp.
15-75 (this work is particularly recommended); R. Verdier,
‘Customary family law’, in International Encyclopedia of
Comparative Law, Vol. 4 (The Hague, Martinus Nijhoff, 1983),
pp. 98-128. The following are, in contrast, more difficult: E. Le
Roy, ‘Cours d’histoire des institutions’ (unpublished, Paris,
LAJP, 1971-2), pp. 130-65; ‘Ethnologie juridique de la parenté,
Law in Traditional Societies 249
du mariage et de la terre’ (unpublished, Paris, LAJP, Synthèses,
June 1971, 20 pp.); R. Cresswell, ‘La Parenté’, in Eléments d’eth­
nologie, ed. R. Cresswell, Vol. II (Paris, A. Colin, 1975), pp.
132-74; R. Fox, Kinship and Marriage: An Anthropological
Perspective (Harmondsworth, Penguin, 1967). Finally there is C.
Lévi-Strauss’s great work, Les Structures élémentaires de la parenté
(Paris, Mouton, 1967), available in English as The Elementary
Transstructures of Kinship, trans. J. H. Bell and I. R. Sturmer
(London, Eyre & Spottiswoode, 1969), technical but enthralling,
and F. Héritier’s very complex synthesis, L ’Exercice de la parenté
(Paris, Gallimard and Le Seuil, 1986). On information technology
used in the anthropology of kinship, see Héritier, ‘L’ordinateur et
l’étude du fonctionnement matrimonial d’un système Omaha’, in
Les Domaines de la parenté, op. cit., pp. 95-117.
For the history of the family in the West see: G. Franciosi, Clan
gentilizio e strutture monogamiche, Contributio alia storia della
famiglia romana, Vol. 1 (Naples, 1975); J. Gaudemet, Les
Communautés familiales (Paris, M. Rivière, 1963) and Le Mariage
en Occident (Paris, Cerf, 1987); G. Duby, The Knight, The Lady
and the Priest (London, Allen Lane, 1984); A History of Private
Life, 5 vols, ed. G. Duby and P. Aries (Cambridge, MA, Harvard
University Press, 1988), which contains several relevant chapters;
J. Goody, The Development of the Family and Marriage in Europe
(Cambridge, Cambridge University Press, 1983); Femmes et patri­
moine dans les sociétés rurales de l’Europe méditerranéenne, ed. G.
Ravis-Giordani (Paris, CNRS, 1987). G. Duby has also con­
tributed La société chevaleresque (Paris, Flammarion, 1988), pp.
151-65, translated into English as The Chivalrons Society, trans.
Cynthia Postan (London, Edward Arnold, 1977), and Mâle
Moyen Age (Paris, Flammarion, 1988), pp. 129-46. Duby
describes kinship structures in northern France in the tenth and
eleventh centuries, showing their development, an approach
which is of considerable interest to the anthropologist. Before the
tenth century, royal authority was still effective. The lineage
memory was very short: close relations counted for more than the
ancestors, the family consists mainly of collateral kin. Royal
authority was subsequently usurped by the nobility. The various
strata of knightly society reformulated their conception of family
ties: the individual considered himself as a member of a patrilin­
eal agnatic lineage of male progéniture, based on the memory of a
 250 Legal Anthropology
founding ancestor. The work of Legendre, which is much more
theoretical and complex, combining the history of law with psy­
choanalysis, is of considerable importance; see P. Legendre,
L 'in estim a b le objet de la transm ission. E tu d e su r le p rin cip e
généalogique en O cc id en t (Paris, Fayard, 1985, 408 pp.) and L e
D o ssier o ccid en ta l d e la pa re n té (Paris, Fayard, 1988, 230 pp.).
On the prehistoric family see: C. Masset, ‘Préhistoire de la
famille’, in H isto ire de la fa m ille (op. cit., above), Vol. 1, pp.
78-97, very interesting and objective. On incest, a selection
includes: P. Moreau, ‘Plutarque, Augustin, Lévi-Strauss: prohibi­
tion de l’inceste et mariage préférentiel dans la Rome primitive’,
R e v u e belge d e ph ilologie e t d ’histoire, 56, 1 (1978): 41—54, which
considers hitherto unidentified problems; Fox, K in sh ip a n d
M a rria g e , op. cit., above; and, very recendy, M. Godelier,
‘Inceste: l’interdit originel, propos recueillis par G. Plessis-
Pasternak’, L e M o n d e , 26 August 1987: 11-12. On the status of
women see the comparative studies of the société Jean Bodin
( Recueils d e la société J . B o d in , Vol. II, L a fe m m e (Brussels,
Editions de la Librairie encyclopédique, 1959, 347 pp.). See also
E. Evans-Pritchard, L a F em m e d a n s les sociétés p rim itiv e s (Paris,
PUF, 1971). On inheritance see M. Alliot, ‘Le droit des succes­
sions dans les Etats africains francophones’, R e v u e ju rid iq u e e t p o li­
tique, In d ép en d a n ce e t C oopération , 4 (1972): 846-85, essential
reading; also useful are: R. Verdier, ‘Essai de socio-économie
juridique de la terre dans les sociétés paysannes négro-afficaines
traditionelles’, C ah iers de l ’In stitu t de Science économ ique appliqu ée,
1 (1959): 139-54; J. Binet, ‘Le droit successorial chez les Ewe’, in
E tu des d u d ro it africain et m algache, ed. J. Poirier (Paris, Cujas,
1965), pp. 307-15 and, more recendy, an overview on inheri­
tance in Muslim countries: H é rite r en p a y s m u su lm an , ed. M. Gast
(Paris, CNRS, 1987, 302 pp.). Finally the société J. Bodin orga­
nized a congress (Budapest, 1990): L ’A c te à C au se de M o rt.
145 Bibliography on landholding
As with kinship, the reader should approach the literature in a
step-wise manner. First see: M. Godelier, ‘Economie’, in E lém ents
d ’ethnologie , ed. R. Cresswell, Vol. 2 (Paris, A. Colin, 1975),
where landholding is directly treated; M. Bachelet, ‘Les titulaires
des droits fonciers coutumiers’, E n cyclopédie ju rid iq u e de l ’A friq u e,
Law in Traditional Societies 251
Vol. 5 (Dakar, 1982), pp. 59-70. G. A. Kouassigan, ‘La nature
juridique des droits fonciers coutumiers’, in ibid., p. 49 e t seqr, R.
Verdier, ‘Civilisations paysannes et traditions juridiques’, in
S y stè m e s fo n ciers à la vü le e t a u village, ed. R. Verdier and A.
Rochegude (Paris, Harmattan, 1986), pp. 5-27. There are a
number of more readable, but also very usefid, works: R. Verdier,
‘Essai de socio-économie juridique de la terre dans les sociétés
paysannes négro-afficaines traditionelles’, C ah iers d e l ’In stitu t de
S cien ce économ ique appliqu ée, 1 (1955): 139-54; ‘Les problèmes de
la propriété privée et collective chez les peuples primitifs’, E tu des
d e d ro it co n tem porain (Paris, Cujas, 1963), pp. 105— 10; E. Le Roy,
‘Caractères des droits fonciers coutumiers’, E ncyclopédie ju rid iq u e
d e l ’A friq u e , Vol. 5 (Dakar, 1982), pp 39-47; ‘Les modes d’acqui­
sition et les preuves des droits fonciers coutumiers’, in ibid., pp.
71-81-, L e d ro it d e la terre en A friq u e (collective work, preface by J.
N. Hazard) (Paris, Maisonneuve & Larose, 1971, 175 pp.). G. A.
Kouassigan, L ’H o m m e e t la Terre (Paris, Berger-Levrault, 1978);
D. Biebuyck, In trodu ction — A fric a n A g r a ria n S yste m s
(Oxford/London, IAI and Oxford University Press, 1963), pp.
1-64; E. J. Lampe, ‘Das Grundrecht des Eigentums in ethnolo-
gischer Sicht’, in P ersônlichkeit, F am ilie, E ig en tu m , ed. E. J. Lampe
(Opladen, 1987), pp. 291-305. On the land chief, the basic text
is: R. Verdier, “‘Chef de Terre” et “Terre du lignage”.
Contribution à l’étude des systèmes de droit foncier négro-
afficain’, in E tu d es d e d ro it africain e t d e d ro it m algache, ed. J.
Poirier (Paris, Cujas, 1965), pp. 333-59. More difficult, yet indis­
pensable, is the large corpus of work by Le Roy, one of the main
contributors to the LAJP project. This research, begining in 1969,
has a very strict methodology, mainly concerned with using
matrixes to study African landholding systems in depth. First
there is an overview: ‘Démarche systémique et analyse matricielle
des rapports de l’homme à la terre en Afrique noire. Lecture
épistémologique d’une pratique de l’anthropologie du droit’,
B L A J P , 3 (1981): 77-94. More detailed is: ‘Théorie, applications
et exploitations d’une analyse matricielle des systèmes fonciers
négro-africains’ (unpublished, Paris, LAJP, 1970, 115 pp.); ‘Le
Système de répartition des terres - Modèle particulier d’une
analyse matricielle des rapports de l’homme à la terre en Afrique
noire’ (unpublished, Paris, LAJP, 1973, 144 pp.); ‘Histoire des
institutions d’Afrique noire’ (unpublished, Brazzaville, 1973), pp.
 252 Legal Anthropology
167-85. ‘Les Etudes sur le droit de la terre en Afrique noire’, 2
vols (unpublished, Paris, LAJP, 1974 and 1975), contains a num­
ber of contributions from Le Roy and other members of the LAJP
team with particular reference to landholding (see, in particular,
‘La Terre et le Sacré - Enquête sur la dimension religieuse “tradi-
tionelle” du système normatif des rapports de l’homme à la terre
en Afrique noire’). See also E. Le Roy, ‘Matrices et espaces -
contributions à une théorie des rapports entre l’homme et la terre
en Afrique noire’, B u lletin P rodu ction p a sto ra le e t S ociété, 13
(1983): 89-97; E. Le Roy and E. Le Bris, ‘La question foncière
en Afrique noire. Esquisse d’une nouvelle problématique de la
question foncière en Afrique noire’, J L P , 20 (1982): 155-77.
There are also the following monographs: F Snyder, L 'é vo lu tio n
d u d ro it fo n c ie r D io la de B a sse-C a sa m a n c e (thesis, University of
Paris I, 1973), which follows E. Le Roy’s analysis; A. N. Allott,
‘Family property in West Africa: its juristic basis, control and
enjoyment’, in F a m ily L a w in A s ia a n d A fric a , ed. J. N. D.
Anderson (London, 1968), pp. 121-42; D. Ahouangun Fagla,
‘Contribution à une approche du droit de la terre chez les Fon au
Dahomey’, E tu d es su r le d ro it de la terre, op. cit. (1975), which also
uses matrixes; D. Pokomy, ‘Le système foncier Haya’, ibid.; J.
Bureau, ‘Note sur les droits fonciers éthiopiens’, E th n o g ra p h ie, 1
(1982): 7-17; J.-P. Raison, ‘De la prééminance de l’usage du sol
à l’emergence d’une question foncière’, dans S ystèm es fon ciers à la
ville e t a u villa g e , ed. R. Verdier and A. Rochegude (Paris,
Harmattan, 1986), pp. 27-51; N. Rouland, ‘Pour une lecture
anthropologique et interculturelle des systèmes fonciers’, D ro its, 1
(1985): 73-90, where Inuit and African attitudes to land are
compared.
1 4 6 B ib lio g r a p h y o n c o n tr a c tu a l o b lig a tio n s
Contractual obligation still constitutes a litde-known area in legal
anthropology. One can only look forward to developments in this
area, one which is of particular interest to jurists. At present Le
Roy is the main authority, unfortunately as yet unpublished,
though his work may be consulted at the LAJP: E. Le Roy,
‘Anthropologie historique et juridique des contrats en Afrique
noire, en Grèce et à Rome’, D o c u m e n t pédagogiqu e no. 4 (unpub­
lished, LAJP, Paris-Brazzaville, 1972-3, 90 pp.). There is also:
Law in Traditional Societies 253
N. Mahoney, ‘Contract and neighbourly exchange among the
Birwa of Botswana’, J o u rn a l o f A fric a n L a w , 21, 1 (1977): 40-65.
Some earlier works are relevant to contract, but are often dated:
M. Mauss, The G ift, F orm s a n d F u nction s o f E xchan ge in A rch a ic
S ocieties, trans. I. Connison (London, Roudedge & Kegan Paul,
1970). M a n u e l d'ethn ograph ie (Paris, Payot, 1947), pp. 149-54;
T. Olawale Elias, L a N a tu re d u d ro it coutum ier africain (Paris,
Présence africaine, 1961), pp. 166-82, translated into English as
The N a tu re o f A fric a n C u sto m a ry L a w (Manchester, Manchester
University Press, 1956). From Maine’s A n c ie n t L a w onwards a
number of works contain developments in thinking regarding
contract: R. Redfield, ‘Maine’s A n c ie n t L a w in the light of primi­
tive societies’, The W estern P o litica l Q u a rterly, 3 (1950): 576 e t
seq .; E. A. Hoebel, ‘Status and contract in primitive law’, in C ross-
cu ltu ra l U nderstan din g: E pistem ology in A n th ropology, ed. F. S. C.
Northom and H. H. Livingston (New York, Harper & Row,
1964); L. Pospisil, K a p a u k u P a p u a n s a n d th eir L a w (New Haven,
CT, Yale University Press, Yale Publications in Anthropology,
1958, 1963). A good overview of these developments is contained
in R. Motta, ‘Statut et contrat: les catégories de Maine dans la lit­
térature d’anthropologie juridique’ (unpublished, 1987, 25 pp.),
forthcoming (1988) in D ro its e t C ultures periodical.
There are also monographs: J. Richardson, ‘Law and status
among the Kiowa Indians’, M on ograph s o f the A m eric a n
E th n o lo g ica l S o cie ty, Vol. 1 (Augustin, New York, 1940); I. M.
Lewis, ‘Clanship and contract in northern Somaliland’, A fric a , 29
(1959): 274-93; P. J. Bohannan and G. Dalton (eds),
‘Introduction’, in M a r k e ts in A fric a (Northwestern University
Press, 1962); Y. P. Ghai, ‘Customary contracts and transactions
in Kenya’, in M. Gluckman (ed.), Ideas a n d Procedures in A fric a n
C u sto m a ry L a w (Oxford, Oxford University Press, 1969): I.
Shapera, ‘Contract in Tswana law’, ibid.; E. Le Roy, ‘Le système
contractuel du droit traditionnel W olof, L a w in R u ra l A fric a , 22
(1973): 45-56; Le Roy in A n th ropologie ju rid iq u e e t historique des
co n tra ts, op cit., also examines contractual obligations in tradi­
tional Tswana and Hausa law.
The literature on guarantees is very sparse. There are two main
texts: A. Dorsinfang-Smets, ‘Les sûretés personelles dans les
sociétés dites archaïques’, R ecueils de la société J . B o d in p o u r l'h is­
toire co m p a ra tiv e des in stitu tion s, 28, L es sûretés personelles , 1st part
 254 Legal Anthropology

(Brussels, Editions de la Librairie encyclopédique, 1974), pp.

129-46; R. Verdier, ‘Les sûretés personnelles dans les droits 3
africains traditionnels’, ibid., pp. 147-53. Finally, on the general
question of legal responsibility in African society: Y. Agboyibor,
‘Généralités sur le droit de la responsabilité civile’, in E ncyclopédie
The Settlement of Disputes
ju rid iq u e de l ’A friq u e , Vol. 9 (Dakar, 1982), pp. 279-82.

B lo o d does n ot grow old.

( A b k h a z e proverb, C au casu s)

The emphasis given to processual analysis and English-language

works in the literature of legal anthropology1explains why the set­
tlement of disputesI2 is the best covered area in the discipline.
Disputes may take many forms. An initial classification may be
made between those disputes which take place between different
societies - war - and those which involve members of the same
society - internal conflict; acknowledging that the one kind can
provoke the other: We are concerned here with internal conflict.
Whilst this form of conflict exists in all societies, it assumes a
more important role in some, and it should be possible to draw
up a typology of dispute settlement which correlates with socio­
economic and political organization. Die-hard evolutionary preju­
dices to the contrary, these correlations do not justify the classic
opposition of traditional societies (dominated by vengeance) and
modem societies (with the forms of punishment that characterize
them).
These problems will be examined in three sections: the propen­
sity for violence in the setdement of conflicts; the processes
involved in dispute settlement; the concurrent use of vindicatory
and penal systems.

I THE PROPENSITY FOR VIOLENCE IN CONFLICTS

Violence is so often used to resolve the internal conflicts of a soci­
ety that we are entitled to inquire whether it is not inherent in
social life. Two questions may be asked: is violence inbuilt, and
how do we account for its variation from society to society?
 256 Legal Anthropology The Settlement o f Disputes 257

A: Is violence inbuilt? B: T h e propensity for violence: a cross-cultural approach

Even if we concede that violence is part of human nature, the Ethnographic evidence demonstrates that whilst all societies use
argument that one of the main purposes of culture is to eliminate both violent and non-violent means in setding disputes, the rela­
violence may still be put. Between 1946 and 1950, some tionship between the two varies considerably. Furthermore, when
American writers (Taft, Alinski, Gaining) suggested models of vengeance is the chosen mode of settlement, it is carried out with
society where violence would be absent. In general the suggested an intensity which will vary from society to society. We will now
remedies involved the homogenization of cultural values and a examine the joint questions of the recourse to violence, and the
drastic reduction, if not an elimination, of socioeconomic and size of vegeance groups.
political inequality. D. Szabo’s theory is more descriptive/ it
being his belief that violence is associated with physiological and
147 T h e re co u rse to v io le n c e
sociological factors (it is imprinted in genes and the evolution of
Some societies place a positive value on peace: amongst the Zuni
the human brain). The sociological factors concern the degree of
Indians (North America) or the Mbuti (hunter-gatherers from the
cohesion present in the various subgroups of any given society:
Congo), the real man is the person who can avoid disputes. In
the stronger the cohesion, the lower the level of violence. This
contrast, in other societies (the Ndembu of Zambia), conflict
observation is not incorrect: we may indeed observe that hunter-
plays an important role in political and social life, and the
gatherer societies, generally more community-oriented than
recourse to violence is very common. No significant correlation
sedentary societies, favour peaceful modes of setding disputes.
has been established between these contrasting attitudes to vio­
However, we must take the analysis one step further: the degree
lence and any biological factors.5 (Whilst some societies are
of cohesion present in a society depends on a combination of sev­
eral factors which we must identify. indeed more warlike than others, their physiological characteris­
tics are much less important than their history and their value sys­
Further, all societies, even well-integrated societies, would
tems.) We should thus examine cultural factors.
appear to contain some violence. We believe, in company with F.
The existence of institutional mechanisms would appear to
Boulan,4 that a society in which violence is absent is difficult to
favour the peaceful settlement of disputes, their absence resulting,
envisage, but on the other hand that it is quite possible to limit its
on the contrary, in a more pronounced use of violence. The pres­
manifestations. More to the point, we believe that whilst aggres­
ence of a third party capable of steering the protagonists towards
sion may be inbuilt, violence itself can be curbed. Aggressivity is
a peaceful solution (conciliator, arbitrator) or of imposing a set­
inescapable because, as we have seen, it has not yet been possible
tlement (judge, political authority), acts in this direction.
to demonstrate that we can govern by reason alone. When subli­
The intervention of a third party, and, a fortiori, state institu­
mated, violence can play a beneficial and creative role in society.
tions, is believed to limit violence: here we can recognize the clas­
Aggression is thus Janus-like: we can neither ignore its advantages
nor avoid all its disadvantages. sic evolutionist position, often taken up by legal historians. This is
certainly an incomplete view, and may even be incorrect.
Not all societies, however, are aggressive or violent to the same
On the one hand ethnographic evidence shows that many soci­
degree. In this respect, anthropology does not confirm the theory
eties which put a premium on peace are unaware, or have a very
that social pluralism is the determining factor in levels of violence.
limited understanding, of the settlement of conflict through the
First, it is the way in which dominant groups in society view
aggression, rather than the degree of pluralism, which affects vio­ agency of a third party.
On the other hand K. F. and C. S. Otterbein, in an important
lence. If aggression is considered to be beneficial, it will not gen­
article,6 have shown that there is no correlation between the cen­
erate violence, and vice versa. Second, ethnographic observation
tralization of power and the weakening of vengeance, as Table
has brought into play other factors, which we will examine below.
n .3 .1 demonstrates.7
 258 Legal Anthropology
Table II.3.1 Societies valuing peace or violence
Degree of political Number of societies Number of societies
centralization valuing peace valuing violence
high 7 11
low 13 20
Total 51 societies
A further hypothesis currently enjoying favour is that since war
is supposed to reinforce the internal cohesion of a society, the
most warlike societies should also display a low level of vengeance
internally, amongst their constituent groups. Here again a study
of the same sample of societies reveals only a slight correlation
between these characteristics: the correlation applies only in the
case of a warrior society which displays a high degree of central­
ization in internal political organization. Societies displaying weak
political authority show a high propensity for both vengeance and
war.
There are also convincing arguments linking ecological factors
with violence. Thus Rappaport argues that if population
increases, whilst available territory remains static, this usually
generates conflicts ending in the violent dispossession of one
group by the other. First, we need to explain why violence should
be the preferred means of settling disputes of this kind; second,
there are many acephelous societies in which, as it happens,
disputes concerning land-use are peacefully settled.
These various theories are hardly satisfactory. Other theories
with wider explanatory potential exist.
We agree with S. Roberts’s view8 that levels of violence depend
on the cultural values of a society: when these values accentuate
individualism, competition and aggressivity, there is considerable
personal violence (as American society demonstrates).
Furthermore, if there are high levels of personal violence within
groups, this will also apply to the relations between the subgroups
of a society (as a number of societies in New Guinea demon­
strate). However, these are no more than observations. Are there
factors militating for or against the cultural choice a society
The Settlement o f Disputes 259
makes, regarding violence? At present we can advance two such
factors.
The first factor is family structure. K. F. and C. S. Otterbein
have demonstrated a clear correlation between the frequency of
vengeance and societies where residence is male-orientated,
whether it be patrilocal, avunculocal, or virilocal. The correlation
is accentuated if we include polygyny. Conversely, the likelihood
of vengeance will be diminished in a monogamous society or a
society practising uxorilocal, matrilocal, or neo-local residence.
T able II.3.2 Societies and vengeance
Existence of Absence of
vengeance vengeance
patrilocal and polygynous societies 11 4
polygynous or patrilocal societies 6 10
neither polygynous nor patrilocal 5 14
. 9
Total 50 societies
Most human societies are organized on the principle of male
domination and warlike activities are usually a male province.
When males of the same generation are brought together through
residence, communities bound by fraternal mutual interest are
clearly more coherent and quick to react through collective
revenge when one of their members is threatened. When brothers
marry, they remain close and share the same living community.
This residence-based unity is even stronger if these men are the
offspring of polygynous marriages. In fact, in polygynous soci­
eties, the marriage of sons is generally later than in monogamous
societies: half-brothers are thus educated together for longer,
which may increase cohesion.10 We should add that cross-cultural
comparisons demonstrate that if patrilocal residence is associated
with internal conflict, matrilocal residence is associated with
external conflict.
The second factor is determined by socioeconomic organiza­
tion. Generally speaking, nomadic or semi-nomadic hunter-gath­
erers favour the peaceful settlement of disputes, in contrast to
sedentary farming societies.
Nomadic hunter-gatherers in fact display several traits encour­
 260 Legal Anthropology
aging the peaceful settlement of disputes. First, disputes can arise
only from family problems or access to perishable resources,
whereas in sedentary farming societies there is a stronger identifi­
cation of individuals or groups with territory and a tendency
towards the individual ownership of land, providing more oppor­
tunities for conflict and favouring the development of aggressive
tendencies. Furthermore a nomadic existence allows parties
involved in disputes to solve the problem by putting distance
between themselves rather than by confrontation. Ethnographic
observation shows that dispersion is the preferred solution if the
environment is not too hostile (a Bedouin proverb says: ‘To bring
our hearts closer, our tents should be further apart’). Avoidance is
practised by the Hazda of Tanzania, whilst the Kung bushmen of
the Kalahari desert are primarily interested in avoiding the frag­
mentation of the group and favour the rapid settlement of dis­
putes to prevent numbers declining to a critical threshold. Either
way, peaceful settlement is the norm: if the environment permits
it there is dispersion; if not, the dispute is still settled peacefully to
avoid the fragmentation of the group. Disputes tend to be settled
by the parties themselves, without the intervention of a third
party. In contrast, intervention, displaying varying degrees of
coercion, is much more frequent amongst sedentary farming soci­
eties; ostracism and dispersion are more rarely encountered, since
they involve more serious consequences than in hunter-gatherer
societies.
Hunter-gatherer societies depend to a greater extent on com­
munal organization: finding game, agreeing on the timing of
migration and itineraries, these all stem from collective decisions,
whereas agricultural labour, whilst it may also have a collective
component, is less dependent on this factor. This imperative
explains why hunter-gatherer societies mainly engage in collective
hunting and food-sharing, effectively limiting conflict: sharing a
resource makes more sense than appropriating it. The vital
importance of integration within the group also explains why
sociopsychological sanctions based on shame or ridicule are
numerous and very efficient - blame, reprimand, mockery, tem­
porary exclusion. (The thief may also be given the name of a
stolen object, as amongst the Inuit, or people may refrain from
using the relevant kinship terms in address, resembling our own
‘disowning’.) Amongst the Mbuti mime is used, exaggerating the
The Settlement o f Disputes 261
behaviour of the culprit to the point of caricature. The Inuit have
singing contests to settle some disputes: the winner is not neces­
sarily the one who is in the right, but is the protagonist who can
make his adversary lose face. These singing contests took place
mainly in Arctic zones where the natural environment is more rig­
orous and groups were smaller," underlining the importance of
ecological factors in the choice of methods of settling disputes. In
contrast, sedentary agricultural societies are more likely to use
sanctions directed against the individual’s person or possessions.
We must be wary, here again, of oversimplifying the contrast
between nomadic and sedentary societies: violence also exists
amongst nomads (murder is frequently encountered amongst the
Bedouin and the Inuit), whilst agriculturalists do not by any
means resolve all conflict through the use of force. However, the
propensity for violence is greater with the latter type of society
than with the former.
The use of violence varies in another way: the size of vengeance
groups.
148 The size o f vengeance groups
In some cases - admittedly very rare - vengeance does not exist.
This has to do with the nature of groups rather than individuals.
Sometimes groups are not competent in this area and then the
‘vengeance-seeking group’ does not exist (there is a family group
but it cannot avenge one of its members). Thus the Gamo
(Ethiopia) are a ‘society without vengeance’; in situations which
might have involved vengeance, sanctions are applied by the
whole community.
However, in most cases vengeance groups are encountered and
their composition is also coterminous with the confines within
which vengeance operates. There is a rule which applies to all soci­
eties in which vengeance is encountered, whatever their propensity
for violence: vengeance can be practised only between groups, and
not within the same group.12 The risks of the splintering of the
group are too great. Thus the Massa (Cameroon-Chad) authorize
only stick fights, only light injuries are sustained and this is unlike­
ly to unleash vengeance within the clan. The assegai may be used
between clans, vengeance resulting from the flow of blood. There
are further, specific limitations. Some of these relate to the behav­
iour of the parties in dispute. The group may decide that one of its
 262 Legal Anthropology
members is overly bellicose and disown him, irrespective of
whether he is the offender or the offended party. Amongst the
Inuit, the habitual offender or the perpetrator of serious offences
(such as witchcraft) is considered to be a menace, and his group
and the whole community will decide to rid themselves of him.
Either he is ostracized (qivituk, a word designating abandonment,
synonymous with suicide . . .) or his community designates those
who will execute him, generally close kin of the offender - a judi­
cious move guarding against subsequent vengeance.13 The size of
the group involved in vengeance varies from society to society. In
some cases the reference group is always the same, whether it be
an entire clan, a subclan, a lineage, or a lineage segment. In other
cases, the dimensions will vary as a function of the social distance
between offender and offended: amongst the Bedouin, when the
murderer belongs to an enemy or foreign tribe, the whole of the
victim’s group is concerned; in the case of a tributary or ally, only
the blood relatives of the parties are involved.
II SETTLING DISPUTES
Any dispute, if it is to be resolved, passes through two stages14:
first the protagonists select a settlement procedure and present
evidence in support of their case; then a ruling is made, or a sanc­
tion applied. We must now enumerate the various procedures and
forms of evidence, and examine the way disputes are settled.
A: Typologies of procedures for the settling of disputes
There are a number of possible typologies, some which may cut
across each other. The simplest classification consists in distin­
guishing between those situations where there is recourse to vio­
lence controlled by rules (vindicatory system), those where
violence is absent, and those where violence is ritualized. The
singing contests of the Inuit (east coast of Greenland) and those
of the Tiv (north-east Nigeria) belong to this third category, as do
boxing contests or thumping sessions (tagba boz of New Guinea)
and the buritila’ulo of the Trobriand islanders. In the latter cases,
two groups are involved in a dispute and reach the point where
vengeance will ensue. Directed by a leader, one of the groups
offers some food to the other; this act is reciprocated. If the two
gifts balance each other, the conflict is settled; if one of the
The Settlement o f Disputes 263
groups eschews this peaceful means of settlement, it need only
offer more than it has received, which is considered humiliating,
and vengeance will ensue.
We may also differentiate between non-judicable and judicable
procedures. The spoken word has primacy in both, but each pos­
sesses different structures. We will examine each of these modes
in turn.
149 N o n - ju d ic a b l e p r o c e d u r e s
Non-judicable procedures involve debate between two or more
parties, where the conflict is settled without a judge. They may be
subdivided into two categories.
The first category describes situations in which the parties
resolve the conflict themselves: bilateral negotiation. This is often
encountered in very well-integrated communities, where interac­
tion between individuals is highly developed. In varying degrees,
negotiation exists in all societies, either in the society as a whole
or at the level of one or more subgroups.
The second category describes situations where the interven­
tion of a third party in the debate is necessary if the dispute is to
be settled. This kind of intervention is most common in larger
societies or where the parties have little contact with each other,
or are already at too advanced a stage of conflict for bilateral
negotiation to produce results. The intervention of a third party
may take several forms depending on whether this will play a
leading role or not. The minimal form is mediation: the mediator
does not impose a solution, he helps the parties to find one. With
arbitration, by contrast, it is the arbitrator who arrives at a solu­
tion, which he will propose to the parties involved, attempting to
convince them of its soundness, since the parties cannot be oblig­
ed to follow these recommendations.
150 J u d ic a b le p ro c e d u r e s
In judicable procedures a third party intervenes as a judge in liti­
gation: his decision —the judgment - binds the parties; all the
more forcefully in traditional societies, since appeal is rarely per­
mitted. The existence of norms is a fundamental question. It
would be an error to associate their presence with judicable pro­
cedures, and their absence with non-judicable procedures: law is
264 Legal Anthropology The Settlement o f Disputes 265

not confined to judgement; negotiation, mediation and arbitra­ 151 Elementary societies
tion are also legal entities. The real difference revolves around the In elementary societies, authority is entirely concentrated in kin­
way these norms are used by parties in dispute: they are more ship structure. The Nuer (Sudan) are a case in point; they possess
likely to be imposed on parties in judicable procedures than in no legislative or legal authority. When two people from different
non-judicable procedures, where they may be applied, ignored, or social groups are in dispute, the settlement procedure will depend
modified. largely on their respective positions within kinship structures and
Judicable procedures prevail particularly in modem societies, age-classes, and the social distance separating their reference
but they are also encountered in traditional societies where differ­ groups. There are a number of alternatives: either the parties
accept the fixed tariffs agreed for injuries of this kind, tariffs
entiated political power is met with.
which are wholly reliant on bilateral negotiation, since no external
Differentiated political authority thus makes its presence felt, in
authority can impose such payments; or the aggrieved party, sup­
justice, through judicable procedures. ported by kin, seizes the livestock of the other party. The latter
may remain passive, but if there is resistance, vengeance will
In investigating sociopolitical structures and dispute settlement
ensue. When the dispute concerns two people who are close kin
procedures, we may once again discern the operation of the
and live in the same village, mediation is more common.17
familiar principle of accumulation, already encountered in other
areas.,s The sociopolitical structure of a society determines the
mode of dispute settlement chosen, or the preference given to 152 Semi-elementary societies
some modes above others. On the basis of this principle, E. Le In semi-elementary societies, there is still no central authority, but
Roy has produced a classification which can be summarized in the duality of sources of law (myth and custom) is complemented
Table II.3.3.16 by a superior level in the mode of settlement of conflict: arbitra­
tion is added to bilateral negotiation and mediation. The
Table II.3.3 The Le Roy classification Karivondo (Tanzania) furnish an example. Arbitration is prac­
tised in conflict between clans, between subclans and between
members of subclans, when bilateral negotiations have failed.
Social structure Sources of law Mode of conflict
When successfully concluded, arbitration is followed by the pay­
settlement ing of compensation in kind. In the case of damages, the injured
party’s clan negotiates with the clan of the person liable for dam­
elementary myth vengeance; bilateral ages. In the event of failure to reach agreement, and in the
societies negotiation; mediation absence of any central authority, those elders in each clan who
have no direct interest in the conflict intervene as arbitrators and
semi-elementary myth; custom vengeance; bilateral attempt to find a solution acceptable to all parties. The solution
societies negotiation; mediation; cannot be imposed on the parties.
arbitration Mediation is practised in disputes between members of the
same extended family, a more restricted living community than
semi-complex myth; custom; laws vengeance; bilateral the clan or subclan, in which the payment of compensation could
societies negotiation; mediation; create profound rifts. The head of the family carries out various
arbitration; judgement sacrifices and rituals to wash the culprit clean. The habitual
offender is ostracized.
 266 Legal Anthropology
153 Semi-complex societies
In semi-complex societies, political power can be distinguished
from kinship, the former having primacy over the latter, or vice
versa. The threefold sources of law (myth, custom and laws) are
accompanied by a new level in the settlement of disputes: judge­
ment now appears alongside bilateral negotiation, mediation and
arbitration.
Bilateral negotiation and mediation are used to settle disputes
in the extended family. Arbitration is used to settle conflicts
between individuals belonging to different extended families but
living in the same village (Dogon), and disputes involving inhabi­
tants of different villages (Nkomi).
Judgement is associated with political authority: when acts
deemed to threaten the society as a whole are committed, those
who wield political power take decisions which they can impose
on the parties. The role of the evidence presented by the two par­
ties is particularly important in passing judgement.
B: Typology of evidence
As H. Lévy-Bruhl has commented, if evidence is ‘a mechanism
through which we can establish the truth of an allegation or an
event, or the validity of a right,18legal evidence does not necessar­
ily accord with this definition. In adducing evidence, each party is
concerned more with influencing the third party settling the dis­
pute than with establishing absolute truth; this applies to both tra­
ditional and modern societies. However, this trait is particularly
marked in elementary and semi-elementary societies: in the
absence of central authority, the strength of public opinion can be
the determining factor, and each party will endeavour to enlist
public support. Further, traditional societies attach to transcen­
dent evidence an importance which is unknown in modem soci­
eties. We will adopt, with slight modifications, Jean Poirier’s
classification.19 Poirier distinguishes between transcendent evi­
dence and material evidence. The former calls upon the forces of
the invisible world, the latter involves a practical demonstration.
We will suggest an intermediate or a combined form of evidence,
which can involve, depending on the circumstances, either tran­
scendent or material procedures.
The Settlement o f Disputes 267
154 Transcendent evidence
Transcendent evidence consists mainly of an appeal to the forces
of the invisible world, ordeals, divination and oaths. Ordeals and
divinatory procedures are based on similar principles, namely
reliance on invisible forces, and are expressed through certain vis­
ible signs or forms of behaviour. In the ordeal the subject to some
extent retains the initiative. Some ordeals are bilateral and involve
combat. These were frequently encountered in the medieval peri­
od and appealed to God’s judgement. They are less frequently
encountered in sub-Saharan Africa. Other ordeals are of an
experimental nature; there is no combat, but an individual is sub­
mitted by an expert (sorcerer, priest, sometimes a leader, or even
the accused) to a test (the application of red-hot metal to a nos­
tril) or the taking of poison, the subsequent reaction establishing
innocence or guilt (generally the dose administered is not fatal: if
the poison is immediately vomited up, all accusations are dis­
missed). These techniques are based on a psychological rationale:
the innocent party will normally volunteer to undergo an ordeal
since he is convinced he is in the right; should he fail the ordeal;
he will often become convinced that he is, in fact, guilty.
Divination involves complete passivity on the part of the sus­
pect or the accused: the procedures do not directly touch them.
The interrogation of a corpse is often practised. The behaviour of
the pall-bearers on the way to the burial is closely observed: the
cause of death - natural or murder - may be inferred from the
route chosen; so may the involvement of a kinsman or stranger.
Sometimes a creature is used. Strings are hung in front of a spi­
der’s nest, each representing one of the deceased’s brothers. The
guilty party is the person whose string is moved by the spider; he
should then find a man or woman to take the place of the
deceased. Sorcerers are often involved in these cases, either in
helping to settle the dispute or because they have some responsi­
bility in the case. They may intervene even more directly. They
are reputed to be able to transform themselves into various ani­
mals (man-panthers, man-leopards, the equivalent of our own
werewolves) and can even attack and kill their victims.20
Oaths, oral statements, may also feature in non-legal contexts:
oaths of fraternity or fealty, political oaths, oaths swearing love,
oaths binding a god to his people, etc.
When oaths play a role in a legal process, they are always of a
 268 Legal Anthropology
sacred nature: the facts adducedj the pledges made by the oath-
swearer, these are all derived from the invisible powers which will
ensure that truth will out and the false witness and his guarantors
be punished. Connotations of the sacred are a dominant charac­
teristic of legal oaths in traditional societies, but these societies do
not hold a monopoly of them. In our own societies, not so long
ago, the witnesses in a criminal case swore before God and an
object symbolizing God (a crucifix). In antique Roman law, the
sa cra m en tu m in rent2' - the most important acts of the ‘Law of the
XII Tables’ - employs the same idea: the procedure does not
directly concern the matter around which the litigation turns, but
is centred on resolving two contradictory oaths (each sworn by
one party). The restitution of a thing to its rightful owner rests
only on the results of an investigation, in which one of the two
parties has perjured himself, calling down the wrath of God on to
the community, a wrath which can be avoided only by the sen­
tencing of the guilty party. Once again the role of the invisible
world is primordial. Material evidence follows a different logic,
more closely resembling our own.
155 M aterial evidence
Material evidence includes that in fla g ra n te delicto and that of
investigations. Evidence in fla g ra n te delicto often results in the vic­
tim taking the law into his own hands. However, if the conflict is
settled through a procedure involving a third party and the testi­
mony of a witness, the testimony will be accepted only if the wit­
ness has declared himself to the guilty party at the time the wrong
was done.
If fla g ra n te delicto does not apply and the testimony and ques­
tioning do not establish the truth, there will be an investigation, in
which material evidence will be sought.
156 Combined form s o f evidence
Combined forms of evidence are based on material proof, but
also incorporate symbolic or sacred elements and include testi­
monies, confessions, instrumental proof and written evidence.
The credence given to the evidence of witnesses is directly related
to their social position: the higher this is, the more the testimony
is deemed to constitute proof. There are several relevant criteria:
The Settlement o f Disputes 269
age (children can give testimony; but it is accorded limited cre­
dence; the child reaches adulthood through physiological changes
or initiation ceremonies, which may or may not be concurrent);
gender (generally speaking, the testimony of a woman is consid­
ered inferior to that of a man); social standing and legal capacity
(the word of griots, smiths, captives, or freed slaves has less force
than that of free men). Testimony concerns facts and events, but
it is not strictly speaking material proof, since it is often rein­
forced by an oath.
A confession is a statement of guilt, either of the facts or behav­
iour imputed to the offender, or of those for which a culprit is
being sought. Here again the invisible world is often invoked,
since confessions are often the result of ordeals or divinatory pro­
cedures. In fact confessions are even less ‘the queen of proofs’ in
traditional societies than in our own, in so far as an innocent
party may plead guilty if he believes invisible forces will select
him, or if he thinks he may have committed the acts of which he
stands accused, without being conscious of the fact (whilst sleep­
ing or possessed).
Instrumental proof consists of the restitution of an object, but
this bears no more than the appearance of material proof. To
begin with, the object is less a concrete reality than an extension
of the giver. Second, the object is less important than the relation­
ship between the donor and the recipient it symbolizes. The
dowries of traditional societies reflect this thinking: the dowry
authenticates the marriage, not only serving as compensation
given to the bride’s family, but symbolizing the alliance between
the respective partners’ family groups.
Finally, written proof sometimes plays a sacred role. Most tra­
ditional societies use only oral evidence. However, writing has
gradually appeared with Muslim and European colonizers.
Africans have often ascribed magical qualities to writing where
encountered. Many talismans are koranic inscriptions, kept in a
leather pouch worn around the neck. (It would be imprudent to
describe this behaviour as infantile or ‘primitive’; we have only to
reflect on the importance of the written word in our relations with
bureaucracy.)
Whatever the evidence or proof brought to bear, it is geared to
establishing what will be considered as truth. This must be sanc­
tioned by a ruling, one of the ways of ending a dispute.
270 Legal Anthropology
C: T h e conclusion of disputes
By the conclusion of disputes we mean all behaviour and deci­
sions likely to achieve this objective, on a permanent or temporary
basis. Broadly speaking there are two ways in which disputes may
be brought to a close, depending on the freedom of action of the
parties involved.
The parties may settle the dispute themselves; this can be
achieved in a number of ways. Confrontation may be sidestepped
through avoidance followed by reconciliation, or through bilateral
negotiation. On the other hand the parties may opt for, or accept,
vengeance.
A third party may intervene and take control; the litigation
process is then met with a sanction, whose form and nature may
vary widely.
We have already considered bilateral negotiation22 and
vengeance will be studied below.25 We will now deal with sanc­
tions which may follow litigation, and the avoidance of conflict.
157 Sanctions and conflict
There are three categories of sanction: purification, compensa­
tion, punishment.
Purification in conjunction with sacrifice is normally associated
with the settlement of conflict involving two individuals from the
same group. It may also be used in conjunction with the imposi­
tion of other sanctions.
Reparation and compensation, which may take a number of
forms,24 should be made to the beneficiaries, under threat of an
injunction which would accentuate the gravity of the offence.
Punishments or sentences are graded according to the gravity
of the offence: they may be psychological, corporal (mutilations),
corporal with restriction placed on freedom of movement, restric­
tions of freedom of movement, and, in extreme cases, permanent
ostracism or capital punishment. Traditional societies make con­
siderable use of psychological sanctions and ostracism, which we
must now briefly discuss.
Psychological sanctions tend to make the culprit ashamed of his
actions, through blame or ridicule. The culprit may be subjected
to public haranguing' (New Guinea) or indirect pressure.
Amongst the Inuit Nunamiut (Alaska) the community gathered
The Settlement o f Disputes 271
together in the communal house may decide that for a set period
no one will talk to the trouble-maker. At Ammassalik (east coast
of Greenland), someone who refuses to share the kill in a hunt is
called ‘the greedy one’, which soon becomes an intolerable strain;
lesser offences are sanctioned by satirical songs. In some Inuit
societies (Caribou; Iglulik; western Greenland Inuit) public con­
fessions are often resorted to: prompted by the shaman and the
community gathered before him, the guilty party progressively
admits to his faults, and recognizes the taboos he has trans­
gressed.25
Ostracism is a much more severe sanction, but may be graded
and take a number of forms. Entire groups may disperse, or par­
ticular individuals be sometimes only temporarily excluded; the
parties concerned may continue to live in the same community,
but take no part in any co-operative venture; they may be exclud­
ed from some group activities, and continue to participate in oth­
ers. Finally, permanent ostracism may be tantamount to physical,
as well as social, death; in some environments an individual aban­
doned by his group cannot survive (Inuit).
158 Avoidance and reconciliation
Vengeance, negotiation or the intervention of a third party are all
procedures which involve some degree of confrontation between
the parties.
However, other means may be used: avoidance and reconcilia­
tion. Rather than entering into conflict and then becoming
involved in a dispute, the parties choose to terminate their rela­
tionship; if, subsequently, their common interests suffer too much
from such a break, and if there is no other alternative open to
them, they may renew their relationship through ritualized recon­
ciliation. An inquiry carried out amongst very different popula­
tions (the horticulturist Jalé of New Guinea; Christianized
farmers of Fiji, in the South Pacific; Muslim women from Jeddah
in Saudi Arabia) has revealed in all three areas the practice of
avoidance and reconciliation, which is thus encountered in a wide
variety of settings.26
In the three cases, the relationships between the parties are too
important in their own right, and for the community as a whole,
to be terminated. The group thus puts pressure on the parties to
272 Legal Anthropology
achieve reconciliation. The reconciliation ritual takes various
forms. However, in each case, the ritual symbolizes the impor­
tance of renewing the relationship: Arab women from Jeddah,
whose interaction consists of visits and the exchange of gifts, are
reconciled in a meeting where presents are exchanged; amongst
the Jalé, when a dispute is amongst agnates within the patrilin-
eage, there is an exchange of pigs accompanied by food, as is the
normal practice between kin; the Fijians, a very inegalitarian soci­
ety, organize an i soro ceremony, in the course of which the
offender demonstrates extreme humility towards the person he
has offended. With his head lowered, and silent, he remains seat­
ed in a corner of the victim’s house, whilst an intermediary offers
on his behalf a whale’s tooth as a request for forgiveness. The
acceptance of this present symbolizes reconciliation. However,
not all conflicts end in such a peaceful manner.
Ill VINDICATORY SYSTEMS AND PENAL SYSTEMS
Historically, most writers have condemned vengeance. In the sev­
enteenth century, Grotius distinguished between nature and nat­
ural law; that is, jurisprudence founded on natural laws dictated
by reason. To nature he consigned animals, the non-reasonable
aspects of man and vengeance, ‘that natural principle which man
has in common with animals, from which anger is bom’. The
state, in ending vengeance, expresses the victory of reason over
animal instincts. In the same period, Spinoza wrote that
vengeance was a very blunt instrument with which to setde dis­
putes: by placing matters in the hands of the state, disputes could
be settled with much less expense, the most reasonable way to
proceed. Both these cases represent an evolutionist approach,
condemning vengeance and enhancing the role of the state. Jurists
also subscribe to this view.27 The philosopher R. Girard has
recently adopted the same standpoint. Girard writes that in primi­
tive societies, bloody vengeance represents the unleashing of vio­
lence, which can be transmitted from generation to generation
and progressively invades ways of life.28 It is only with the appear­
ance of truly legal institutions, dependent on the state and acting
as third parties for the litigants, that, through sacrifice, a proce­
dure which diverts and extinguishes vengeance, violence is finally
contained. In fact we may wonder, as does R. Verdier, whether,
The Settlement o f Disputes 273
far from characterizing thç first human societies or ‘primitive soci­
eties’ (the two are deemed synonymous), this condition of perpet­
ual violence is, rather, a fiction invented subsequent to the birth
of the state, to legitimate the monopoly of justice and the use of
force which it deems essential. Sonne’s study of the Greenland
Inuit29 would tend to confirm this view. Sonne makes a clear dis­
tinction between the vengeance practised before colonization and
Christianization, and its portrayal by missionaries and representa­
tives of the Danish state. In its traditional form, vengeance could
take place only between individuals from different groups, and
usually ended with the first death in revenge. Ethnographic evi­
dence reveals that it was not often resorted to and that these soci­
eties severely limited the use of violence. Nevertheless, vengeance
conflicted too much with the ideology of missionaries and repre­
sentatives of the Danish state for it to escape condemnation.
These authorities inculcated in the Inuit an idea of vengeance
very different from historical reality, one which bears a resem­
blance to Girard’s theory: before colonization, the Inuit were held
to live in perpetual fear of acts of vengeance passing from genera­
tion to generation, and even involving members of the same fami­
ly. Somewhat naturally, the Inuit expressed pleasure that they
were no longer savages when confronted with this misrepresenta­
tion of their history.
This example is symptomatic of a more generalized misrepre­
sentation. Recent work in legal anthropology, notably that
inspired by Verdier, exposes the erroneous assumptions of evolu­
tionary theories. To begin with, vengeance is not a savage
instinct; its operation is, on the contrary, subject to very elaborate
mechanisms: the vindicatory system. Secondly, punishment is not
the end-product of a continuum whose terminus a quo begins with
vengeance: punishment and vengeance coexist in all societies, tra­
ditional or modem.
We will now develop these two points.
a : t h e v in d ic a t o r y s y s t e m
Ethnographic evidence allows us to attribute a number of general
characteristics to the vindicatory system, observable in many soci­
eties. The intensity with which vengeance is practised, however,
will vary from society to society. Furthermore, since it is based on
274 Legal Anthropology
exchange, vengeance must ultimately be brought to a close, usu­
ally taking the form of the reconciliation of antagonistic groups.
159 Verdier’s theory o f exchange
Exchange is central to much anthropological analysis.
Verdier applies the same analytical framework to vengeance30:
far from being synonymous with anarchic aggressivity, it consti­
tutes
a bilateral exchange relationship, resulting from the reversion
of the offence and a permutation of the roles of offender and
victim. Since the offence provokes a counter-offence, the initial
situation is inverted, the victim becomes offender and vice
versa. . . . In the same way as incest prohibitions are based on a
law of exogamy which governs marriage-exchange, so
vengeance is based on a system of exchange which governs the
vindicatory system; vengeance is no longer, therefore, an
instinct suppressed or controlled by law, but becomes a norm
sanctified by society.31
As we have seen,32 vengeance is not practised within the same
group: offender and victim have recourse to it only if they belong
to separate social units. Verdier believes that vengeance is both an
ethic and a code.
The ethics o f ven g ea n ce : the operation of the vindicatory system
rests on a number of values shared by the participatory groups.
These can be summed up in two notions: the offence places the
vindicatory groups in each other’s debt: the debt for an offence is
measured by a human life.
An offence directed against an individual extends to the rest of
the group, placing it in a relationship of exchange with the offend­
er and his group: the latter have contracted a debt to the victim
and his group; a corollary of this debt is the obligation of
vengeance weighing on the victim and his group.
Exchange is thus established through debt. The vocabulary of
vengeance confirms this. Amongst the Beti, those offended
should ‘return the injury’ (v u d a n ), the offenders should ‘compen­
sate’ them (k u n ). The Kabyle use the word ertal for murder,
meaning ‘lending a body’: homicide creates a blood-debt, which
vengeance repays in returning a corpse. Two consequences flow
The Settlement o f Disputes 275
from this equivalence. On the one hand, the injury is viewed
objectively: the responsibility of the perpetrator of the damage,
motive, premeditation, extenuating circumstances, all these are
less important than the imperative of restitution for the offence.
On the other hand, however, the social status of the protagonists
is taken into account, based on a number of criteria including the
social distance which separates the offender and the victim, and
the age, sex and rank of the victim. Furthermore, vengeance is
aimed less at destroying life than ensuring it is respected:
vengeance is considered imperative, it is a response to an action
which has threatened the very existence of the victim’s group.
Vengeance is as essential to the reproduction of the group as is
marriage-exchange. The beliefs which it underpins demonstrate
this: blood and honour are often associated (in Calabria and
Constantine, honour is said to reside in blood). Blood expresses
the continuity of generations, honour confers identity on a group
in distinguishing it from other groups. The link between life and
vengeance even carries over into the invisible world: in many soci­
eties, the soul of the unavenged dead is condemned to wander; it
cannot achieve the status of ancestor, which prevents it playing a
propitiatory role for the living (amongst the Bedouin, transformed
into an owl, it perpetually demands to drink the blood of the
offender).
C o d e s a n d ritu als o f vengeance'. Verdier believes that vengeance
lies between identity and hostility; it is inappropriate when the
social distance is too small,33 but when the distance is too great,
war is the outcome. The tie created by vengeance is bom of
adverse circumstances. In the temporary absence of peace,
vengeance should not provoke total war, given that its purpose is
to preserve groups and not to destroy them: it follows a code,
expressed by prescriptions and rites. On the one hand, not all
offences necessarily call down vengeance. On the other hand, the
timing and extent of vengeance can be limited, allowing the
offender to escape and terminate the vengeance process (amongst
the Moundang of Chad a murder victim’s clan has only two days
to kill the murderer or one of his brothers; once this period has
expired, divination is resorted to, identifying who should atone
for the crime; two days later, conciliation and compensation are
used and bring vengeance to a close). Whilst vengeance is never a
free agent, its dimensions vary from society to society.
 276 Legal Anthropology
160 The propensity for vengeance: examples
Some societies do not use vengeance. However, ethnographic evi­
dence reveals that vengeance is very often encountered, and usu­
ally subjected to some form of control. Vengeance may
sometimes be taken to excess. We will explore three possibilities -
absence of vengeance, controlled vengeance, excessive vengeance
- and illustrate them with a few examples.
Absence of vengeance', the Gamo (Ethiopia) consider vengeance
too great a threat for society to run the risk of giving it its head. If
two individuals are involved in a dispute, they will appear, in
turn, before referees and district assemblies, who may ostracize
the offender. In the case of a murder involving two lineages, their
members should avoid each other until the murderer, who may
now be executed by any person, takes flight (this is reminiscent of
the homo sacer of ancient Roman law). He may return at some
future date, if his victim’s kin agree - Gamo assemblies attempt to
achieve reconciliations of this kind. An animal is sacrificed and
then dismembered. The murderer and the victim’s next of kin
pass through a hole made in the skin of the animal, symbolizing
the new ordering of their lives.
Controlled vengeance: this is the most ffequendy encountered
form. Thus amongst the Jordanian Bedouin, vengeance occurs
only in the case of rape and serious and intentional bodily harm.
Even in cases such as this, the parties can always ask for a Qâdi (a
referee). However, in cases where this may not be requested or
may not produce a result, compensation may be resorted to,
either in the short or long term. Quite often, in addition to paying
a blood-price, the offender’s group will present a young girl,
closely related to the murderer, to the victim’s group. She will
marry the son, the brother, or the father of the deceased, to pro­
duce a male child and hence make good the loss. She may only
consider herself free when this child has reached the age where he
may carry arms. In cases where vengeance cannot be avoided by
arbitration or compensation, it occurs, but follows precise rules.
First there must be parity between the person to be avenged and
the person on whom vengeance will be wrought: the blood of a
free man cannot be avenged by killing the slave who has assassi­
nated him, but only by killing his master. Second, the closer the
kinship between the two adversaries, the less important the part
played by collective responsibility, and vice versa: the blood rep­
The Settlement o f Disputes 277
resentative cannot kill close agnatic kin guilty of the murder of
another agnate (a pre-Islamic poem says: ‘My own kin will kill my
brother ’Omayna; if I let my arrow fly, it is me it will strike’).
Third, the intensity of the vengeance will be tempered depending
on the degree of proximity of the murderer’s kin.34
Excessive vengeance', for the Abkhaze (Caucasus), ‘blood does
not age’: vengeance is transmitted from generation to generation.
This is an extremely violent society, to the point where vengeance
becomes a vendetta, and the vindicatory system degenerates into
interminable conflicts.35 Even minor offences can lead to murder,
and a chain of homicides follows in reprisal. Compensation is
rare, and is considered to be an undignified end to a conflict; the
Abkhaze say: ‘We will not bargain with the blood of our brothers.’
Other societies give equal prominence to violence. The tombs
of the Moussey (Cameroon) take the form of a tumulus sur­
rounded with tree-trunks representing the number of men and
animals killed by the deceased; a man who dies without having
performed such exploits is given the same type of tomb as a
woman or a child. Amongst the Ossetians (Caucasus), murder
may be a prerequisite of marriage. A father-in-law always asks his
prospective son-in-law the ritual question: ‘Whom have you killed
to deserve the hand of my daughter?’
This last set of examples demonstrates that vengeance is not
without its attendant risks: if too much importance is attached to
it, excesses may ensue which will threaten the whole society. Yet,
normally, it produces a peaceful settlement.
161 The consequences o f vengeance
The notion of exchange, on which vengeance is based, may break
down. In such cases vengeance has a perverse effect, leading to an
unleashing of violence which threatens rather than maintains the
groups involved. This may be caused by a number of different
factors. There may be a disagreement between the parties about
the acts of vengeance exchanged: these acts may appear excessive
to those on whom they are visited, prompting an even stronger
reaction; the original offender may not accept that the violence he
has suffered is a consequence of his actions. In other cases, very
frequent in Mediterranean societies (Corsica), competition is
stronger than exchange and leads to the exacerbation of a sense of
278 Legal Anthropology
honour: vengeance becomes a vendetta, transmitted from genera­
tion to generation, until even the protagonists forget the original
cause of the dispute. This is difficult to distinguish from a state of
war. Other factors may throw the system out of equilibrium. The
first concerns the parity which, ideally, exists between the vindica­
tory groups. Exchange is based on the premise that a community
of interest exists. When one group is much bigger than the other,
vengeance quickly involves the suppression of one group: reci­
procity breaks down, often accentuating the division of society
into dominant and dominated. The second factor concerns accul­
turation. When a social structure is weakened, either through the
pace of change or through territorial modifications imposed by
state authority, the unleashing of violence may follow, accelerat­
ing social decomposition (as in the case of the Kaingang Indians
of Brazil, and the Ik of Central Africa recently studied by
Turnbull).
These various examples, however, are pathological cases of the
vindicatory system and are atypical as regards its normal func­
tioning. In principle, vengeance should not engender excesses of
violence, still less lead to its indefinite perpetuation. Several
methods may be used to bring violence to an end.
The redress of a wrongful injury consists, for the offender’s
group, of restitution for this injury to the victim’s group. The
offender may carry this out himself. Amongst the Ossetians
(Caucasus), the murderer may be taken as an adopted child into
the family of the person he has killed. He may also visit the tomb
of the deceased and offer himself to his victim: he is then forgiven
by the victim’s son who symbolically restores him to life.
Amongst the Tchouktche (Siberia), the murderer’s family may
deliver the murderer to the victim’s family: he will be treated as a
slave and become the husband of the widow and the father of her
children.
Vengeance can also be brought to an end through the interven­
tion of mediators: often these are women (amongst the Maengue
of New Guinea the fight following a homicide should cease if a
universally respected woman intervenes and tips water over a
blazing torch, whilst intoning sacred formulas of reconciliation).
In monarchies the king may intervene (amongst the Nyamwezi,
vindicatory groups may ask the king to end the conflict; our own
medieval asseurement was similar).
The Settlement o f Disputes 279
Compensation is often used to bring vengeance to a conclu­
sion. It is, according to Verdier’s definition, a ‘procedure proper
to vindicatory exchange whereby a counter-gift equivalent to the
offence takes the place of the counter-offence’. Jurists labouring
beneath evolutionist preconceptions often describe compensation
as a ‘stage’ between private vengeance and state punishment,
developments associated with private property and money or
money equivalents. In fact, as we will see,36 vengeance does not
precede punishment; the two coexist. Furthermore, comparing
compensation with the purchase of a life tends to discredit this
practice. A life is not bought: goods are given, symbolizing life, in
exchange for another life. As Verdier has rightly observed, this is a
similar mechanism to the dowry: here again, the dowry does not
represent the cost of a wife. The similarity between the price of
blood and the dowry of a wife can be clearly demonstrated: the
same term may be used both for compensation and for a dowry,
the same goods may feature in both (amongst the Maenge, the
term kuru is used to describe both a ‘head’, the life which must be
avenged, and the collection of precious goods handed over to the
fiancée’s family before marriage). Compensation may consist of
the gift of a woman. Finally, compensation entails not merely the
end of hostilities, but the beginning of an alliance. This alliance is
accompanied by rituals which are centred on sacrifices. The latter
have a symbolic value.37 Compensation, concretized by a gift of
life, expresses the desire for life to triumph over death in bringing
an end to vengeance. Animal sacrifice, offered by the debtor
group involved in compensation, is a symbolic translation of the
idea that life springs from death. Thus amongst the Moundang,
the murderer’s family, prior to compensation, brings the ‘ox of
the wound’ to the riverside. The ox is sacrificed and the lineage
chiefs plunge their hands into its blood as a gesture of reconcilia­
tion. Excepting those cases where the vindicatory system breaks
down, vengeance bears little resemblance to the unleashing of
mayhem by which it is often characterized. Neither is it, as we
will see, an ‘archaic’ precursor of punishment.
B: Punishment and vengeance: a synchronic approach
Systems involving vengeance and punishment differ in several
respects, but they do not appear in chronological succession.
280 Legal Anthropology
162 T h e d is t in c tiv e tr a its o f v e n g e a n c e a n d p u n is h m e n t
Since the eighteenth century the retributive nature of punishment
has been called into question. The notion that the punishment
inflicted on the guilty party must be commensurate with the
injury suffered by the victim has come to be viewed as increasing­
ly absurd (the abolition of the death penalty is an a-posteriori
consequence of this evolution in thought). Henceforth punish­
ment had to consider not only the injury suffered by the victim,
but also the relationship between the criminal and the crime, the
extent of the criminal’s responsibility and the attendant reaction
of society. The victim thus surrendered to society, as represented
by the agents of the state, whether it was a monarchy (absolutism
prohibited duelling) or a democracy. In the French system of
criminal justice, the plaintiff and the state join ranks against the
criminal, but the state enjoys a dominant role. The magistrates
representing the plaintiff are said to be du p a rq u e t (from the floor)
because, theoretically, they should be on the same level as plain­
tiff and plaintiff’s counsel. However, in reality, the procureur [pub­
lic prosecutor, district attorney] dominates them and sits on the
dais with the judges (the accused is of course also in a higher
position than plaintiff and plaintiffs counsel, but in this case only
to be better seen by the public). Development of the notion of
punishment proves we are concerned less with retribution than
with reparation; after the extent of the criminal’s responsibility
has been established, the representatives of the state cut the crim­
inal off from society, either by elimination (the death penalty is
applied) or through incarceration, for a shorter or longer period,
or in threatening a deprivation of liberty (suspended sentence). In
all these cases, the idea of punishment differs from vengeance,
which is based on exchange and reciprocity. This thinking, reveal­
ing a low level of integration between the group and its individual
members, is not confined to modern societies. Ethnographic evi­
dence reveals that traditional societies may also consider that an
individual has transgressed an important norm and is behaving in
a dangerous manner (this is particularly the case with reoffend­
ers). The preferred solution is not the application of physical
strength (vengeance), but isolation or elimination (penal system),
whether the sanction emanates from humankind or the gods.
Punishment and vengeance can thus in essence be differentiat­
ed; the former separates the individual from society, whereas the
The Settlement o f Disputes 281
latter demonstrates the integration of vindicatory groups. Despite
their differences, both these systems may nevertheless coexist in
the same society.
163 C o e x is te n c e o f v e n g e a n c e a n d p u n is h m e n t
It would be difficult to deny that the history of modem societies
traces the progress of state-directed punishment to the detriment
of vengeance. However, historical and ethnographic evidence
clearly demonstrate that there is no necessary chronological link
between vengeance, compensation and punishment. In the demo­
cratic Athenian city, murder, depending on the circumstances in
which it was committed, might involve the process of vengeance,
payment of compensation, or public prosecution. In Rome, until
the end of the second century BC, crim en designated only threats to
the sovereignty of the city. Adultery, rape, incest and murder were
no more than private offences met with sanctions in which punish­
ment and vengeance were combined: the aggrieved party had
recourse to a tribunal which, in the most serious cases, pro­
nounced an a d d ictio through which the guilty party was handed
over to the petitioner. Throughout the republic, the appeal to tri­
bunals and vengeance could operate concurrently: the parties were
assignees of their groups, who attempted to avenge each other
through legal proceedings. Only under the empire, with the con­
solidation and centralization of the state, did the system of crimi­
nal justice achieve dominance: Seneca, in common with the
nineteenth- and twentieth-century evolutionists, reduced vengeance
to quasi-savage status. He placed it between civic humanity and
animal nature, suitable only for barbarians, women and young
children.38 Under very different skies we may observe a similar
coexistence between different systems. Thus amongst the Prairie
Indians (North America), some murders lead to vengeance, others
to compensation. Tribal leaders consider that some crimes involve
society as a whole (mainly rebellion).
We may thus both state that a penal system exists in tradidonal
societies and that punishment is not necessarily to be idendfied
with the existence of the state, and also that vengeance may be
encountered in modem states where a penal system is the prevalent
form of justice.
The existence of punishment is considered necessary in so far
as an individual or a group may commit acts which are not only
282 Legal Anthropology
considered to cause injury to other individuals or groups, but
which, through their gravity or repeated occurrence, threaten
society as a whole. Myth often refers to transgressions of this
kind: a hero attempts to reverse the order of the creator and is
brought down to subhuman level. In the visible world, order is re­
established by purification sacrifices, the reintegration of the cul­
prit, or his expulsion. Modem penal systems employ analogous
procedures. The penal process employs a judicial dramaturgy
reminiscent of both sacrifice and purification; the aim of punish­
ment is to chastise offenders, cut them off from society, and even­
tually readmit them. Likewise the disappearance of vengeance is
not necessarily the corollary of centralization and specialization of
political power, whether it takes the form of chiefdom, kingdom,
or empire. For the Moundang, the institution of divine monarchy
did not abolish clan justice. In the early days of the Roman
republic, the creation of the civitas and its own system of justice
did not occasion the demise of the internal justice of the gentes
and the vengeance associated with it.
But what are we to make of the concentration of power as
revealed in the modern state? Whilst it would appear that the
modem state does not completely abolish vengeance, the process
of consolidation does lead to the weakening of vengeance, and, in
like manner, the waning of the state resuscitates vengeance (the
declining power of the Carolingian royal house was one of the
causes of the spread of private wars in the feudal era). Vengeance
no longer pits groups against each other, as in the classic vindica­
tory system, but individuals: in other words, vengeance no longer
appears as a process which is an integral part of social structure. It
can achieve expression both outside and within law. Outside: self-
defence, save in specific cases where this is considered legitimate,
is in principle prohibited; in practice juries are found to be very
indulgent on this matter. Inside: as M. Delmas-Marty has com­
mented,39 the influence of vengeance is apparent in the handling
of assault and battery in the French penal code. Punishment for
this offence in fact varies considerably (from one month in prison
to ten years’ hard labour), and these variations can be accounted
for less in the crime committed (to what extent has the offender
premeditated and sought the consequences of the act?) than the
result (the nature and gravity of the injuries inflicted): here we
may discern an objective appraisal of the injury, one of the char­
acteristics of vengeance.40
The Settlement o f Disputes 283
We find ourselves repeating, in the settling of disputes, the
statement made relating to other important areas of law. The dif­
ference between traditional societies and modem societies does
not lie in the constituent elements of these systems: vengeance
and punishment can coexist. Vengeance is not the sole province
of traditional societies, neither do modem societies have a
monopoly over punishment. However, in their more developed
forms, societies emphasize one model more than the other.
Traditional societies, fully conscious and committed as they are
to their sociological pluralism, settle disputes by articulating rela­
tionships between groups, through vengeance. By way of contrast,
modern societies negate the group and isolate the individual,
directly confronting him or her with the state: they settle disputes
through punishment, both a measure of the ties and a diminishing
of the ties binding the individual to a wider society, where the
state is the sole arbiter.
NOTES
1 See above, nos 25-7, 49-50, 56-7.
2 For a definition of the concepts of dispute, see ‘Conflit’,
Dictionnaire encyclopédique de théorie et de sociologie du droit, ed.
A. J. Arnaud (Paris, LGDJ, 1988), p. 57.
3 See D. Szabo, ‘Agression, violence et systèmes socio-culturels:
essai de typologie’, Revue de sciences criminelles (1976): 383 et
seq.
4 See F. Boulan, ‘Violence et société’, RRJ, 3 (1981): 342-52.
5 See S. Roberts, Order and Dispute. An Introduction to Legal
Anthropology (Harmondsworth, Penguin, 1979), p. 54.
6 See K. F. Otterbein and C. S. Otterbein, ‘An eye for an eye, a
tooth for a tooth: a cross-cultural study of feuding’, American
Anthropologist, 67 (1965): 1470-82. See also K. F. Otterbein,
‘Internal war: a cross-cultural study’, American Anthropologist,
70-2 (1968): 277-89.
7 See Otterbein and Otterbein, ‘Eye for an eye’, op. cit., p.
1476.
8 See Roberts, Order and Dispute, op. cit., p. 157.
9 After Otterbein and Otterbein, ‘Eye for an eye’, op. cit., p.
1475.
10 As Roberts has noted (Order and Dispute, op. cit., p. 159), this
theory leaves unanswered questions. These societies with male
284 Legal Anthropology
residence also contain a high degree of violence between indi­
viduals from the same group, whereas, in as much as the
propensity for intergroup vengeance can be accounted for by
the high degree of internal solidarity of each of these groups,
one would anticipate that individual groups would setde their
internal conflicts peacefully. . . . We may add that cross-cultur­
al comparisons indicate that if patrilocal residence is associated
with internal conflict, matrilocal residence is associated with
external conflict. Further, E. A. Hoebel (‘Vengeance’, D C ,
15-16 (1988): 160-70) disagrees with the way the Otterbeins
handled their data and casts doubts on their conclusions.
11 See N. Rouland, ‘Les modes juridiques de solutions des con­
flits chez les Inuit’, E tu d es In u it , 3 (1979): 96-101.
12 See R. Verdier, ‘Le système vindicatoire: esquisse théorique’,
in L a V engeance, ed. R. Verdier, 4 vols (Paris, Cujas, 1980-4),
Vol. 1, pp. 20-2. In our own societies, does the horror of civil
war, often considered as worse than war against a foreign
country, not stem from the same idea?
13 See Rouland, ‘Les modes juridiques’, op. cit., pp. 70-5.
14 The settlement of disputes is not always synonymous with
their conclusion, despite ideas to the contrary: the dispute
may continue or change form even after a decision has been
taken which was intended to end it (see above, no. 50).
15 See above, nos 99, 126, 133.
16 See E. Le Roy, ‘Introduction aux institutions politiques
africaines’ (unpublished), document pédagogique no. 2 (Paris,
LAJP, 1975-6), pp. 148-67.
17 For a description of this mediation process, see E. E. Evans-
Pritchard, ‘The Nuer of southern Sudan’, in A fric a n P o litica l
S yste m s, ed. M. Fortes and E. E. Evans-Pritchard (London,
1940).
18 H. Lévy-Bruhl, ‘La preuve judiciaire chez les “primitifs”’, in
R ecueils de la société J . B o d in p o u r l ’histoire c o m p a ra tiv e des in sti­
tu tio n s, 18, ‘La Preuve’, Part 3 (Brussels, Editions de la
Librairie encyclopédique, 1963), p. 5.
19 See J. Poirier, ‘La preuve judiciaire dans les droits coutumiers
de l’Afrique noire’, in ibid., pp. 37-57.
20 See E. Rau, ‘Le juge et le sorcier’, E tu d es africaines (1957):
304-19; (1958): 181-206; which cites a number of decisions
concerning sorcery.
The Settlement o f Disputes 285
21 See the developments described by J. Gaudemet, In stitu tion s
d e l ’A n tiq u ité (Paris, Sirey, 1967), pp. 407—12.
22 See above, no. 149.
23 See below, nos 159-61.
24 See above, no. 141.
25 On psychological sanctions amongst the Inuit, cf. Rouland,
‘Les modes juridiques’, op. cit., pp. 37-47.
26 See K. F. Koch, S. Altorfd, A. Amo and L. Hickson, ‘Ritual
reconciliation and the obviation of grievances: a comparative
study in the ethnography of law’, E th n ology, 16, 3 (1977):
269-83.
27 The following two descriptions, similar in content, if not in
chronology, may be usefully compared. The first, by A.
Esmein, a renowned legal historian, was written in 1892; the
second in 1979 by two civilians, A. Weill and F. Terré.
Penal law (in the later Roman Empire) . . . was deficient in a
number of respects. First, amidst a very advanced civilization,
it had conserved, amongst other features, primitive ideas con­
cerning the control of human behaviour. It is a well-known fact
that in human societies the repression of crime is, in the first
instance, left to private vengeance, but that in most cases
reprisals are avoided, by means of financial compensation.
Subsequendy, through custom or law, compensation becomes
obligatory. The victim of the crime has only one resort, that of
demanding payment, and obtains, to this effect, recourse to a
court of law. (A. Esmein, C ours élém entaire d ’H istoire d u d ro it
fra n ç a is , 2nd edn (Paris, Sirey, 1912), p. 36)
One of the main purposes of the state is the maintenance of
order in society: the state should intervene in disputes between
individuals, hence the existence of public justice. This state
function was not immediately recognized. Amongst primitive
civilizations, the injured party exercised a right of vengeance,
abetted by the clan. Private justice followed on from vengeance,
the parties agreeing to submit the dispute to a referee. . . . The
replacement of the private referee by state tribunals involved the
reinforcement of state power. (A. Weill and F. Terré, D ro it civil:
In trodu ction générale (Paris, Dalloz, 1979), pp. 205-6)
286 Legal Anthropology
28 See R. Girard, D es choses cachées depu is la fo n d a tio n du m onde
(Paris, Grasset, 1978), p. 20.
29 See B. Sonne, ‘The ideology and practice of blood feuds in
East and West Greenland’, E tu des In u it , 6, 2 (1982): 21-50.
30 The work of R. Verdier and his team is essential reading. See
in particular: L a Vengeance, ed. Verdier, op. cit., above;
Verdier, ‘Le système vindicatoire’ in ibid., Vol. 1, pp. 13-42;
R. Verdier, ‘Le désir, le devoir et l’interdit: masques et visages
de la vengeance’, D é v ia n c e e t Société, 8, 2 (1984): 181-93; R.
Verdier, ‘Ordres, autorités, sanctions’, D C , 11 (1986):
181-90.
31 Verdier, ‘Le système vindicatoire’, op. cit., above, pp. 14-16.
32 See above, no. 148.
33 ibid.
34 See J. Chelhod’s description in ‘Equilibre et parité dans la
vengeance du sang chez les Bédouins de Jordanie’, dans L a
V engeance, op. cit., above, pp. 130-1. The Georgians of
Mounts Elbrouz and Kazbeg also carefully control vengeance:
a first murder is always considered accidental; the murderer’s
clan, in performing a number of rituals, attempts to pacify the
victim’s clan; a period of conciliation automatically follows a
year later (see G. Charachidze, ‘Types de vendetta au
Caucase’, in ibid., pp. 83-105).
35 ibid., pp. 84-8.
36 See below, no. 163. A number of textbooks unfortunately
contain outworn evolutionist ideas (see, amongst many others,
J. Pradel, D r o it P é n a l gén éral (Paris, Cujas, 1980), pp. 74-5.
37 We may venture to compare this symbolic compensation with
G. Duby’s transfer and counter-transfer in warfare and mar­
riage, in early medieval society. Here, too, economic worth is
not the sole yardstick in the exchange of valuables. These also
symbolize alliances, the victory of peace over conflict (cf. G.
Duby, G uerriers e t p a y s a n s (Paris, Gallimard, 1973), pp.
60-4).
38 Seneca, D e C lem en tia , 1.5.5; 1.25.1; D e Ira , 1.11.1 e t seqr,
1.2.15; 2.21.
39 See M. Delmas-Marty, L es C h em in s de la répression (Paris,
PUF, 1980), p. 74.
40 See above, no. 159.
The Settlement o f Disputes 287
FURTHER READING
164 Bibliography on the settlement o f disputes
Given the importance accorded over several decades to English-
speaking literature on the settlement of disputes, many works
have been written concerning this subject, too numerous for all of
them to be cited here.
Currendy the best synthesis would appear to be S. Roberts,
O rd e r and D isp u te: An In trodu ction to L eg a l A n th ro p o lo g y
(Harmondsworth, Penguin, 1979, 216 pp.) (reviewed in D C , 1
(1981): 118-19). On the more specific question of vengeance, the
important work edited by R. Verdier is vital reading: L a
V engeance, textes réunis et présentés par R Verdier, G. Courtois
and J.-P. Poly, 4 vols (Paris, Cujas, 1980-4). Particularly valuable
are Verdier’s overviews: ‘Le système vindicatoire’, ibid., Vol. 1
pp. 13-42; ‘Le désir, le devoir et l’interdit: masques et visages de
la vengeance’, D é v ia n c e e t Société, 8, 2 (1984): 181—93: ‘Ordres,
autorités, sanctions’, D C , 11 (1986): 181-90. We may now turn
to works of more general interest: E. Le Roy, ‘Introduction aux
institutions politiques africaines’ (unpublished, Paris, LAJP,
1975-6), pp. 143-67; M. Alliot, ‘Hâtives Réflections sur l’avant-
projet de symposium “Le Droit de punir’” (unpublished, Paris,
LAJP, 1980). Some works provide an overview, but make use of
ethnographie evidence of a very varied character: A. R. Radcliffe-
Brown, ‘Primitive law’, in E n cyclopedia o f S o cia l Sciences, Vol. 9
(New York, 1933), pp. 202-6, and A. L. Epstein, ‘Sanctions’,
In te rn a tio n a l E n cyclopedia o f S o c ia l Sciences, Vols 13-14 (New
York, 1972), pp. 1-5, also treat the question of sanctions. Other
authors take a wider view of the legal process: M. Gluckman,
‘Judicial process: comparative aspects’, In tern a tio n a l E ncyclopedia
o f S o c ia l Sciences, Vols 7-8 (New York, 1972), pp. 291-7, cites
the main works up to 1972 on justice in traditional societies and
takes the view that comparisons can be made between the legal
systems of traditional and modem societies, between which he
believes there are close ties. J. Griffiths, ‘The general theory of lit­
igation: a first step’, Z eitsch rift f u r R echtssoziologie, 4, 1 (1983):
145-201, cites the main works between 1963 and 1983 on the
settlement of conflict (pp. 198-201). See also, for sub-Saharan
Africa, Y. Brillon, E thnocrim inologie de l ’A friqu e noire (Paris, Vrin,
1980).
 288 Legal Anthropology
Amongst the many general works on the settlement of disputes
in a variety of societies (modem and traditional), see: L a w a n d
W arfare: S tu d ie s in th e A n th ro p o lo g y o f C on flict , ed. P. Bohannan
(Austin, TX and London, University of Texas Press, 1967, 441
pp.); M. Gluckman, Politics, L a w a n d R itu a l in T rib a l S o cie ty
(Oxford, Blackwell, 1971, 339 pp.); The D isp u tin g Process: L a w in
T en Societies, ed. L. Nadder and H. F. Todd Jr (New York,
Columbia University Press, 1978, 372 pp.).
We will now turn to problems more closely related to this chap­
ter. On warfare: M. R. Davie’s now outdated work, The E v o lu tio n
o f W a r: a S tu d y erf its R ole in P rim itiv e S ocieties (New Haven, CT,
1929), linked warfare with scarce resources. P. Clastres, on the
other hand, concentrates on political factors in Recherches
d ’A n th ro p o lo g ie p o litiq u e (Paris, Le Seuil, 1980), pp. 171-207,
209-48; A. Adler, ‘La Guerre et l’état primitif, in L ’E sp rit des lois
sa u va g es, ed. M. Abensour (Paris, Le Seuil, 1987), pp. 95-114.
There is also an overview, already dated: A. Dorsinfang-Smet,
‘La sauvegarde de la paix dans le monde dit archaïque’, R ecueils
de la société J . B o d in p o u r l ’histoire co m p a ra tiv e des in stitu tion s, Vol.
14, L a P a ix (Brussels, 1962), pp. 99-121. On warfare in Africa,
there is G uerres de lign age et guerres d ’états en A friq u e, ed. V. Bazin
and E. Terray (Paris, Editions des Archives contemporaines,
1982).
The vital question of identifying the factors which influence the
use of violence through cross-cultural comparison, has been treat­
ed by: T. Van Velzen and W. Van Wetering, ‘Residence, power
groups and intra-societal aggression: an enquiry into the condi­
tions leading to peacefulness in non-stratified societies’, In t. A rch .
E th n o g ., 49 (1960): 169-220; K. F. Otterbein and C. S.
Otterbein, ‘An eye for an eye, a tooth for a tooth: a cross-cultural
study of feuding’, A A , 67 (1965): 1470-82; K. F. Otterbein,
‘Internal war: a cross-cultural study’, A A , 70 (1968): 277-89; W.
T. Divale, F. Chamberis and D. Gangloff, ‘War, peace and mari­
tal residence in pre-industrial societies’, J o u rn a l o f C on flict
R esolu tio n , 33, 4 (1977): 388-99. For an overview there is: D.
Szabo, ‘Agression, violence et société: essai de typologie’, R e v u e
d e Sciences crim inelles (1976): 383; F. Boulan, ‘Violence et
société’, R R J , 3 (1981): 342-52. The periodical E tu d es rurales has
also devoted a special issue, 95-6 (1984), to violence, examining
Western and non-Westem societies.
The Settlement o f Disputes 289
Interesting examples of vengeance may be found in the collec­
tion L a Vengeance, op. cit., above; G. Charachidze, T ypes de
v e n d e tta a u C a u ca u se, Vol. 2 (Paris, Cujas, 1980), pp. 83-105,
furnishes three examples of societies in the same geographical
area, but very different in the importance they attach to
vengeance; see also: J. Chelhod, E quilibre e t p a rité dan s la
ven g ea n ce d u sa n g ch ez les B édou in s de J o rd a n ie, Vol. I (Paris,
Cujas, 1980), pp. 124—43; J. Bureau, U ne société sans vengeance: le
ca s des G a m o d ’E th io p ie, Vol. 1 (Paris, Cujas, 1980), pp. 213-14;
N. Rouland, ‘Les modes juridiques de solutions des conflits chez
les Inuit’, E tu des In u it, 3 (1979): 1-171; P. F. Moreau, ‘La
vengeance dans le droit naturel et dans le droit de la nature’, in
L a V engeance, op. cit., Vol. 4, pp. 153-7, shows how vengeance
has been consistently presented negatively in our own era (see B.
Sonne’s article, ‘The ideology and practice of blood feuds in East
and West Greenland’, E tu des In u it, 6, 2 (1982): 21-50). Seneca is
also dismissive of vengeance: cf. Y. Thomas, ‘Se venger au
Forum. Solidarité familiale et procès criminel à Rome’, in L a
V engeance, op. cit., Vol. 3, pp. 65-100. Yet vengeance can degen­
erate: G. Courtois, ‘La Vengeance, du désir aux institutions’, in
L a V engeance, op. cit., Vol 4, pp. 74— 5, attempts to account for
this. Courtois also cites a number of examples where violence and
punishment coexist. M. Delmas-Marty, L es C h em ins de la répres­
sion (Paris, PUF, 1980), pp. 74— 5, and M. Cusson, P ourquoi p u n ir
(Paris, Dalloz, 1987), pp. 40-1, 66, discuss the criteria which
allow punishment and violence to be compared. On the peaceful
settlement of disputes and reconciliation, there is: P. H. Gulliver,
‘Negotiations as a mode of dispute settlement: towards a general
model’, L a w a n d S o cie ty R e v ie w , 1 (1973): 667—91; K. F. Koch,
S. Altorki, A. Arno and L. Hickson, ‘Ritual reconciliation and the
obviation of grievances: a comparative study in the ethnography
of law’, E th n ology, 16, 3 (1977): 269-83. The Société Jean Bodin
devoted its 1987 congress to ‘Punishment’.
On evidence from traditional societies see: H. Lévy-Bruhl, ‘La
preuve chez les “primitifs”’, R ecueils de la société J . B o d in p o u r
l ’h istoire co m p a ra tiv e des in stitutions, Vol. 18, L a p re u v e (Brussels,
1963), pp. 5-13, is rather dated. More relevant is J. Poirier, ‘La
preuve judiciaire dans les droits coutumiers de l’Afrique noire’, in
ibid., pp. 37-57. See also: A. Dorsinfang-Smet, ‘Réflexions sur
290 Legal Anthropology

les modes de preuve dans l’action judiciaire des sociétés dites

primitives’, in ibid., pp. 15-35; A. Allott, ‘Evidence in African
customary law’, in ibid., pp. 59-80.
Oath-taking is currendy the subject of collective study under
the direction of R. Verdier (there will be a congress on this theme
in 1989 at the Université de Paris X). See also: R. Verdier, ‘Note
introductive. Le Serment: une parole-action, une parole-sanc­
tion’, DC, 14 (1987): 5-7, followed by these monographs: H.
Maspero, ‘Le serment dans la procédure judiciaire de la Chine
antique’, Mélanges chinois et bouddhiques, 3 (1934—5): 256-317;
Tonye-Mbua, ‘Le Serment chez les Basa du Cameroun’ (unpub­
lished, thèse 3e cycle Droit, Université de Paris I, 1973); M.-C.
Dupré, ‘Place du serment dans une structure politique duale’,
DC, 14 (1987): 17-28; A. Rouhette, ‘Le serment et le pouvoir
dans la société traditionnelle de Madagascar’, DC, 14 (1987):
57-79; M. Bekombo, ‘La pratique du serment chez les Dwala’,
DC, 14 (1987): 9-15; R. Schott, ‘Serment et voeux chez des eth­
nies voltaïques’, DC, 14 (1987): 29-55; J.-C. Bonnan, ‘Eléments
pour l’étude du serment et de l’engagement dans l’Inde anci­
enne’, DC, 14 (1987): 81-103.
Finally P. J. Wilkinson’s bibliography is relevent to a number of
the above themes: The Social Organisation of Disputes and Dispute
Processing and Methods for the Investigation of their Social, Legal and
Interactive Properties: A Bibliography in Three Parts (working paper
of the Oxford Centre for Socio-legal Studies, Wolfson College,
Oxford, s.d.).
4
Legal Acculturation
What is in essence right becomes in its concrete existence
constituted, that is, made definite for consciousness through
thought. It, having right and validity, is so recognized and
becomes law. Very recendy the vocation of making law has
been abolished. This is not only an affiant, but also implies
the absurdity that to no individual has been given the
capacity to systematize the infinite multitude of existing
laws, and expose the universal contained in diem, when the
task is the most pressing need of the day.
(Hegel, Philosophy of Right, trans. S. W. Dyde (London,
1896), 211)
There are certain ideas of uniformity, which sometimes
strike great geniuses . . . but infallibly make an impression
on little souls. They discover therein a kind of perfection,
because it is impossible for them not to discover it; the same
weight in the police, the same measures in commerce, the
same laws in the state, the same religion in all its parts. But
is this always right and without exception? Is the evil of
changing always less than suffering? And does not greatness
of genius consist rather in distinguishing between those cases
where uniformity is requisite, and those in which there is a
necessity for differences? . . . I f the people observe the laws,
what signifies it whether these laws are the same?
(Montesquieu, The Spirit of the Laws, trans. D. W.
Carrithers (University of California Press, 1977), xxix, 18)

The destiny of legal systems is shaped, in part, by factors which

include intermingling, additions, suppressions, shedding. These
influences are not limited to our own era and can be traced far
into the past: Hammurabi’s code of law was applied beyond
Babylon and, along the way, Greek and Roman law encountered
292 Legal Anthropology
many native legal systems which they duly abridged. However,
the modem period, which has witnessed the more rapid and
extensive use of Western legal systems - even in the post-colonial
period - has seen a proliferation of occasions where legal systems
have been transferred. One would be forgiven for assuming that
the resulting legal acculturation would lead to the existence of a
uniform system of law, in accordance with the desires of colonial
and post-colonial states. In sub-Saharan Africa at least, traditional
systems of law often resist modem influence. We will devote two
sections to these problems, dealing in succession with the general
theory of the transfer of law, and then the workings of legal colo­
nialism and the forms of resistance encountered by legal accul­
turation.
I GENERAL THEORY OF THE TRANSFER OF LAW
The transfer of law is the operation by which, through constraint,
or its absence, law is transmitted from one society to another.
The acceptance of a foreign system by an indigenous system can
lead to coexistence between the two systems: often the indigenous
communities continue to follow their own law, the received law
only being applied by the state institutions of that society.
However, a more thoroughgoing process of legal acculturation
may result. Either it is unilateral (only one of the legal systems is
modified, or even eliminated) or it is reciprocal (each of the sys­
tems is modified through contact).
The process whereby legal systems have been acquired has long
retained the attention of jurists. An examination of the effective­
ness of such transfers in traditional systems has been more
cursory. Whilst the transfer of law must always rest on the fulfil­
ment of certain conditions, we must ask, along with M. Alliot,1
whether the specificity of traditional cultures does not render
such transfer illusory. This specificity operates on two levels: the
role of law in social regulation, and legal values.
165 The restricted role o f law in traditional societies
Alliot states:
it is the case that the rule of law is only considered an impor­
tant objective in the Western world. A large number of soci­
Legal Acculturation 293
eties view law with indifference and many, particularly those
we term primitive, consider the birth and development of law
as a misadventure. In these societies, which set themselves
against law, law appears with difficulty, evolves but little, and if
one attempts to transfer law bom and nourished elsewhere, the
result is usually failure.2
We may qualify this statement: not all traditional societies, as we
have seen, possess the same structure, and law generally intensi­
fies with the degree of complexity. However, it remains true that
the importance given to law is not as great in these societies as in
our own. We have come to justify the expansion of the realm of
law in stressing its protective character. Yet, we believe that in
certain cases (relations between friends or within families, com­
mon law marriages [concubinage], incest, euthanasia, protection
against AIDS, proxy mothers, etc), the role of law should be min­
imal, or even non-existent, and non-legal means of social regula­
tion should be allowed to operate; J. Carbonnier has also argued
that there are times and places where law has no relevance. Here
again, law and non-law are common to all societies: however, tra­
ditional societies define law by its absence (the terms ‘law’ and
‘judicial’ do not feature in most of the languages spoken in these
societies); in modem societies the reverse is the case. Alliot
believes that traditional societies operate different forms of con­
trol over law, preventing it from invading all realms of social
activity, and, according to Clastres and Sahlins, guarding against
its becoming subject to coercive political power. Law operates
primarily in a discontinuous field, mediated by the constituent
groups of a society (the authority of the chief is not directly exer­
cised over individuals, but only over households, lineages and
fractions of lineages, all represented by their own leaders).
Further, law is clothed in secrecy: people ignore - and make sure
they continue to ignore - the customs of their neighbours; this
process is only reinforced by the oral character of law.
Conversely, the history of our own societies reveals that public
disclosure of law is evidence of an important social upheaval (as
in the case of the publishing of the ‘Law of the XII Tables’ and
the patrician-plebian struggle in the city of Rome). Furthermore,
each group tends to constitute a legal unit: the study of vengeance
and property has clearly demonstrated this. Finally, law is fre-
 294 Legal Anthropology Legal Acculturation 295
quently indefinite and non-imperative (two identical matters will and we demonstrate this loyalty through the repetition of ritual.
not necessarily be dealt with in the same way, and custom may be However, we attach more value to change: innovation seems
ignored if the parties so desire); it is intertwined with mystical and preferable to imitation. As Alliot writes: ‘man is a servant of the
religious beliefs, and can be apprehended only with difficulty. past in traditional societies, and forges the future in Western soci­
These traits have not gone unnoticed by Western commenta­ eties.’ Once negated, time is now accepted. The traditional
tors. However, theirs was an ethnocentric interpretation; the traits arrangement, where societies characterized by sociolegal diversity
were no more than so many ‘imperfections’ of ‘primitive’ law. In were rooted in temporal unity, finds its opposite in modem soci­
fact, we are not confronted with atrophy, but with procedures eties: groups are denied their existence, law tends to make society
attempting to bring to the fore, institutionalize and perpetuate a uniform, and time paints the past, the present and the future in
plural social structure. Law must express sociological pluralism, different shades. The individual plays a part in this institutional­
hence all the precautions taken to avoid uniformity. Yet pluralism ization of change.
does not exclude unity: in traditional thought unity is based on The status of the individual: traditional societies do not deny the
the complementarity of groups, which vary as to role and size. individual’s existence, but view a person in relation to the groups
Bearing this in mind, we may more readily comprehend that to which that individual belongs. In modem societies the opposite
the process which we have described as the transfer of law has is the case. The group no longer defines the individual; rather the
very litde meaning in these societies: why and how can law be individual, through membership, brings the group into being.
transferred? It must remain as secret as possible, and in its specif­ Thus in the tenets of natural law only the individual plays a role
ic characteristics expresses the essence of the group from which it in nature, society being an artificial construct. We have seen that
sprang. The absence of satisfactory answers to this question runs the decline of traditional groups which benefit the individual is to
counter to the very principle of transference. Furthermore, trans­ the state’s advantage.3 Yet this does not mean that all modem
fer between traditional and modem societies, which have very dif­ societies are individualist. The state may often deal with people in
ferent legal cultural values, can be achieved only with difficulty. groups, sometimes going to the extent of bringing groups into
existence and insisting that individuals belong to them (co-opera­
tives, unions). These modem groups differ considerably from
166 The differences between traditional and modern legal values
those of traditional societies: in general they are based on princi­
The differences between traditional and modern legal values con­
ples which are egalitarian (the voice of one individual counts as
sist of four basic elements: the role of time, the status of the indi­
much as that of any other) and democratic (decisions are taken
vidual, man’s control over law, and legal absolutes.
t on a majority baisis, either absolute or relative). Traditional
The role of time: Whilst customs have often revealed a capacity
| groups, in contrast, are hierarchical and based on unanimity.
for change, traditional societies have values which are neverthe­
M an’s control over lauu: whereas traditional societies tend to con-
less rooted in the past and they avoid making changes to the law,
■ tain law, modem societies believe they can use law to control
fearful that these modifications might be appropriated by a group
‘ time. To this end they make use of a number of instruments, such
to the detriment of society (all authoritarian regimes tend to
| as codification and planning. However, the enactment of laws
monopolize law: Jean Bodin, the theorist of absolutism, stated
• remains the most simple instrument in legal planning.
that it was in legislation that royal authority was most clearly
Legal absolutes: in traditional societies, the ordering of the world
demonstrated). Time alone does not produce law (acquisitive
I is interpreted through myth and ritual repetition. Modem soci-
prescription does not prevail); the permanence of groups is valued
i eties have decided on other absolutes, to which law must defer.
more highly than the ephemeral existence of individuals. We are
' The first absolutes are laws themselves: the Egyptians and
in fact no strangers to this loyalty to the past: birthdays and
, Mesopotamians believed that all were subject to astrological and
anniversaries are family liturgies to which we are very attached
i royal laws as an eternal principle. From the Greeks onwards,

1
 296 Legal Anthropology
absolutes are associated with nature: laws are not self-justifying,
but must conform with the natural order of things. The Western
experience followed two avenues in attempting to discover this
ordering of the world. First, reason: the writers who from the
middle ages onwards participated in the rebirth of Roman law,
celebrated its harmonization with both reason and nature (the
jurist Ferrière wrote in the late seventeenth century that ‘Roman
laws were enacted through natural reason and were based on the
principles of equity . . . this is a ray of the divine light which God
communicates to man’. Second, tradition: royal judges in
England, from the thirteenth century onwards, referred to prece­
dent, bringing the common law into being. However, in the mod­
ern era (the nineteenth and twentieth centuries) it became more
and more difficult to reconcile the diversity of legal systems with
natural order. Thus legal absolutes underwent a further shift: leg­
islation was no longer used to achieve natural or rational order,
but rather a particular form of order defined as an objective by
that society, as made explicit in ideologies, programmes and pro­
jects. As Alliot has stated, these various legal absolutes are also
myths in their own right. However, the values which they embody
are profoundly different from those of traditional societies. Yet,
when we come to examine the various processes of legal accultur­
ation in the context of legal absolutes, it becomes clear that, in
some cases, traditional societies have been able to shift from their
particular system of myth to legal myth.
167 Forms o f legal acculturation
Alliot’s theory identifies three degrees of legal acculturation with
the three legal absolutes, each defined through a principle and
linked with a change in political structure. Six cases of accultura­
tion can be discussed in relation to these three degrees.
Degrees of legal acculturation: where laws themselves become
absolutes, acculturation takes place in the context of societies
passing from myth to law; for example, when a foreign law is
adopted, divine in character and beyond question (extension of
Islamic law), acculturation is achieved through submission. Where
the legal absolute resides in nature, acculturation takes place in
the context of societies where law is modified in favour of laws
which seems more natural or reasonable (the spread of Roman
Legal Acculturation 297
law in the West from the twelfth century onwards; the introduc­
tion of the French Civil Code in many European legislative bod­
ies); here acculturation is achieved through assimilation. Where
the legal absolute resides in an ideological stance, acculturation
takes place in the context of societies which modify their legal sys­
tems in accordance with an exterior model (this has been the case
with the independent Third World states that have adopted con­
servative or socialist systems); here acculturation is achieved
i through reinterpretation.
Degrees of political structure: degrees of legal acculturation and
changes in political structure develop in parallel. When a society
moves from traditional myth to the myth of law, it also undergoes
a change towards more concentrated forms of political power (for
example, traditional societies swept up by the great religious
empires). When a society adopts a legal system deemed to corre­
spond with natural order and reason, it also often shifts towards a
state-based power structure (this was the case for traditional soci­
eties in the colonial period, where the rationality of state law
existed in contrast with the archaic nature of custom). When a
society propounds an ideology through its legal system, the state
dominates this process with varying degrees of success (thus
i
Third World leaders who, on gaining independence, looked to the
state to determine their future).
Cases of legal acculturation: six cases can be identified with the
three degrees of legal acculturation discussed here. First, the three
cases of a traditional society adopting one of the three degrees,
followed by the two cases of a society moving from a first to a sec­
ond degree (the use of Greek law in ancient Egypt), or from the
first to the third (Islamic states adopting modem legal systems).
Finally, the case of a society passing from the second to the third
degree (socialist transformation of the legal systems of Eastern
European countries, after the Second World War).
Acculturation thus includes a very wide range of cases, and
extends beyond the transfer of law between traditional and mod­
ern societies, which is our main concern. The very fact that, as we
have seen, this transfer can take place, may appear paradoxical: if
the legal values of traditional and modem societies are so differ­
ent, how can such a transfer occur at all? Only at a considerable
price, as we shall see.
1
 298 Legal Anthropology
168 The price o f transfers o f law in traditional societies
Generally speaking, legal transfers are only satisfactory - that is to
say, they do not disturb the society that acquires new law —if the
society is committed to a deep-seated change requiring the adop­
tion of a new legal system, and the legal system in question comes
from a society whose principal characteristics are similar to those
of the society to which it is transferred (as in the case of the bor­
rowings of legislation between Greek city-states), or if the legal
system is considered to be independent from the society in which
it resides and can be adopted by any other society (for example,
the use of Islamic law in many Muslim countries, or European
systems of law in many Third World states). Colonization may
indeed have caused a profound upheaval of traditional societies,
but the remaining two conditions have never been fulfilled. In fact
Alliot believes that either the transfer of law is illusory, or a very
high cost is paid for it, namely a weakening of the structure of the
host society or the distortion of the law transferred. We will
examine both these scenarios.
In some cases the transfer of law may well prove impossible, or
can be only partially accomplished. This has been the commonest
scenario in sub-Saharan Africa and is exemplified in the attempt
France made to extend its legal system to Africa in the nineteenth
century. The resistance offered by the indigenous population
forced the courts into maintaining the people’s traditional person­
al status, and this was ultimately officially recognized by the law.
This led to a dualism: traditional law continued to prevail as
regards family and property, especially in rural areas; modem law
controlled state institutions, administration and economic devel­
opment. On the granting of independence the offensive against
traditional laws proceeded apace, the legal system often abrogat­
ing customs in the name of development. However, in practice, as
we shall see,4 local communities continued to resist state law.
Sometimes the host society does not have this capacity for resis­
tance. In this case, indigenous law gradually disappears in the face
of imported law: this is no longer acculturation, but legal décul­
turation. In our view this has been the unhappy lot of Inuit soci­
eties since the end of the Second World War.
Appearances can also be deceptive: sometimes the transfer is
accomplished at the price of the distortion of the system of law
transferred. Thus was the adoption in Rome in the second centu­
Legal Acculturation 299
ry BC of a ius gentium, which was not so much the borrowing of
legal institutions of other cities but the use, by magistrates, of a
number of common principles (equity, good faith) they believed
they had found in these legal systems, which were in fact the prin­
ciples of stoicism. Similarly medieval jurists, whilst proclaiming
the superiority of Roman law, modified it in many ways to adapt
it to the needs of the period. Though we do not yet have suffi­
cient hindsight to understand current developments in sub-
Saharan Africa, it may be the case that resistance to European
and state law is expressed not only in outright rejection, but also
in distortion: some countries use European legal instruments to
protect what are essentially communal institutions such as the
dowry, as well as systems of landholding which are also commu­
nal in nature.
Thus the transfers of law from modem to traditional societies
are unlikely to be fully accomplished without serious repercus­
sions. When they take place willy-nilly, imposed by colonialism
and taken up by newly independent states, it is at the price of an
acculturation in which the state may ultimately be the loser. We
will tackle these problems in more detail in the next two sections.
II COLONIAL LAW IN SUB-SAHARAN AFRICA
We define ‘legal colonialism’ as phenomena of legal acculturation
caused by European colonial expansion. We will concentrate on
its impact in French-speaking sub-Saharan Africa.5 The process
began with colonization, but has progressed beyond this stage: on
gaining independence, the majority of African states favoured and
indeed reinforced the statist model. Despite the important role of
European colonialism, Africa has known colonization from other
quarters: Islam also spread through a strategy of domination and
Africa still bears the traces of its influence. Further, the colonial
model is only one of a number of forms which legal acculturation
can take. Acculturation in its specifically legal manifestations may
be described as ‘the body of phenomena arising from contact
between groups of individuals from different cultures and the
changes wrought in the original cultural traits of one or both
groups’.6
The cases we will examine represent only limited and localized
examples of legal acculturation. The importance assigned to them
 300 Legal Anthropology Legal Acculturation 301

is justifiedj however, given the amount of research of a legal char­ and an oral tradition. Further, Muslim legal thinking takes more
acter centred on these societies. account of facts and acts than Romano-Germanic thinking.
In the colonial era, the introduction of European law ushered Finally, Islamic norms and native African law share common fea­
in a period of coexistence between modem and traditional legal tures. This explains why formulations of customary law influ­
systems. Yet the main attributes of acculturation can also be dis­ enced by Islam have in some instances produced an equilibrium
cerned at this time. Acculturation developed apace following between the two normative systems.8
independence, the leaders of the nascent states generally being Islam in Africa, as in other parts of the world, is currently
dismissive, in the name of development, of traditional systems of enjoying a new lease of life. This can only accentuate the opposi­
law: three subsections will be devoted to the study of these prob­ tion between two approaches to law, a sensitive area since inde­
lems. pendence. Those who follow the Western model wish to see both
Muslim and local legal traditions replaced by state-based Western
law. The view of militant sympathizers of Islam is that it is time to
A: T he coexistence of different legal systems in the colonial era
end the distortion of Islamic law in its accommodation to tradi­
The diversity of legal systems in sub-Saharan Africa generally pre­
tional law: the purity and integrity of Islamic law should be re­
cedes the colonial period. First, each society has its own myth and
established, replacing both traditional law influenced by Islam,
customs; second, Islamic law quickly adapted itself to local cus­
and Western law. If this latter current achieves dominance,
tom in a number of countries. European law attached itself to this
Islamic law will become the law of the state; if the former holds
body of law only in the nineteenth century. However, as we will
sway, it will become ‘folk-law’, a kind of semi-official law. In
see, legal acculturation brought about by Islam bears little resem­
either eventuality it will mark the end of a successful period of
blance to the legal acculturation which followed European colo­
legal acculturation which has stood the test of time over many
nization.
centuries. The same cannot unfortunately be said for the
European colonial experience.
169 Legal acculturation and Islam
The influence of Islam in sub-Saharan Africa began in the sev­
170 Legal acculturation and European colonialism: a general
enth century and today a number of states have Muslim majori­
problem
ties (Mauritania, Niger, Senegal, Guinea, Mali, etc.). Other states
Bradford W. Morse, a Canadian author, recently suggested a gen­
have a minority Muslim population (Gabon, Zaire, the Popular
eral model describing the various permutations involving tradi­
Republic of the Congo, etc.). The final category is that of states
tional law and the legal system of the colonizing country.9
where Muslims and those of other beliefs are evenly balanced
S ep a ra tio n may be quasi-total: contact taking place only through
(Cameroon, Chad). Muslim law can thus either enjoy predomi­
emigration or conflicting laws (this was the attitude of a few
nance, hold minority status, or exist in conjunction with tradi­
British colonies in the eighteenth century concerning some of the
tional law. However, we must note that, in most cases, transfers
Indian nations with which they had made treaties). C o-operation
of Islamic law have taken place at the cost of the accommodation
may exist. A number of criteria (territorial, or ratione personae or
of this law to local legal systems: Islamicized customary law has
m a te ria e ) determine the competence of the various jurisdictions.
been the result.7 There are a number of reasons for this. To begin
Thus both the courts and colonial law could be the appropriate
with, the Malekite school —which has the most influence in West
authority for both colonial and indigenous populations in colo­
Africa — is, of all the Islamic traditions, the one which has
nized areas, handling all matters, whereas traditional law could be
remained closest to traditional pre-Islamic law, as practised
applied only in those areas inhabited exclusively by indigenous
amongst the Bedouin of central Arabia: these peoples, in com­
populations, also handling all matters. Incorporation reveals tradi­
mon with African societies, possessed a communal social system
 302 Legal Anthropology Legal Acculturation 303

tional law subjected to a greater degree: traditional law is incorpo­ niai state has been successfully resisted in some countries, the rea­
rated into the legal system of the colonial power in all those areas son does not lie in the flexibility of these various arrangements
where there are no blatant contradictions (family law normally which, we must repeat, were all geared to achieving the domi­
escapes incorporation); such integration can result in a corruption nance of state law, but rather in the will of the indigenous com­
of traditional law because, in certain cases (British colonies in munities to preserve their law and way of life. As we will discover,
Asia and Africa), the colonial authorities determine the judicial it is mainly in Africa that such resistance has met with the greatest
system in which traditional law is to be applied. A rather more success.
brutal alternative is the rejection of traditional law, judged as too
‘primitive’ by the colonial authorities or those which succeed
171 Legal acculturation and European colonization: the case o f
them: thus the Australian courts rejected Aboriginal law and
sub-Saharan Africa
many post-independence African states refused to recognize tra­
In sub-Saharan Africa, nearly all the colonial states have respect­
ditional law as a legal entity.
ed the customs and practices of colonized peoples, whilst never­
Co-operation and incorporation are clearly the most subtle
theless imposing European law in a number of areas. This
approaches. They are sometimes employed in conjunction with a
attitude is based on the co-operation model.10 However, as we
number of refinements whose role is to disguise the reality of legal
have stressed, this co-operation is, in practice, detrimental to tra­
déculturation, carried out at the expense of traditional law.
ditional law. Various procedures were employed, all intended to
Traditional law may be recognized by treaty, by legislation, or by
shift the border between traditional law and modern law, towards
precedent, and becomes part of the state system (as in the case of
the latter. Local legal systems were considered contrary to civi­
the James Bay Convention applied to the Inuit and Cree Indians
lized values or an impediment to colonial rule. Legislators and
in Arctic Quebec). The control and policing of jurisdictions will
judges acted in unison in the allocation of legal ‘territories’
often be left in the hands of indigenous populations or half-castes
inspired by these principles."
(as in the case of Indian and half-caste magistrates in North
Legislators assigned areas of competence to modem law. Some
America). The creation of an independent system of justice is
advantages were lost thereby: land was registered, a process which
subtler, side-tracking the issue more comprehensively: national or
appeared the better to guarantee its status, but which, in practice,
regional governments authorize the creation of ‘native courts’ (see
amounted to a partial or total suppression of traditional property
some tribal courts in the USA) which in fact operate in the same
law. The criteria used were, notably, ratione personae and ratione
way as common law courts. In some cases the exercise is carried a
m a te ria e . In the case of ratione personae , modem law is applied to
step further in granting tribal authorities full freedom in deciding
certain people, either comprehensively or in instances where they
how litigation be handled (as on some Indian reservations in the
have availed themselves of legislation in a particular area of law.
USA). We would be mistaken in thinking that such autonomy
These procedures should not be confused with the broader char­
results in the systematic application of traditional law. In any
acteristics of law: Africans, and not only Europeans, found them­
case, these ethnic minorities are influenced by the life-styles of the
selves bound by modem law. It is also apparent that these
global society (it must be acknowledged that, in the Arctic in par­
distinctions are to the advantage of modem law: whereas the par­
ticular, no compulsion is required in the adoption of Western
ties concerned can opt for modem law for a particular legal pur­
ideas, so frequent is the tendency to imitate the colonizer). In
pose, permanently changing their personal status, the procedure
North America many tribal courts imitate the Western legal
in reverse, towards traditional law, is prohibited. In the case of
model.
ra tio n e m a teria e , modem law supersedes traditional law in particu­
In whatever guises these various policies are applied, the end-
lar areas. Moral principles may be involved, institutionalized in
result is usually to the detriment of the traditional legal model. If,
the form of colonial public order: thus mutilation and corporal
however, the dominance of the colonizing power or the post-colo-
 304 Legal Anthropology
punishment were prohibited as a sanction for criminal behaviour.
In fact, colonial public order was concerned more with picking
out elements of traditional law which corresponded to the imper­
atives of colonial development, than with the application of moral
principles. Generally speaking, family law has hardly been affect­
ed by modem law. Yet it presents characteristics (levirate, soro-
rate, polygamy, ghost marriage, ease of divorce, etc.) which might
have been considered, at the time, contrary to public morality.
These practices were allowed to continue. One would like to
believe that this was out of respect for the local population. In
fact, such disclaiming of competence was largely inspired by a
fear of interfering with these customs and provoking open civil
disobedience to no particular purpose. Modern law may also
apply ratione materiae in areas where traditional law is considered
insufficient or inadequate (administrative law, labour law, com­
mercial law, bonds and stock, etc.). In any case, European colo­
nial legislation treated modern law as common law, to which
recourse was always made in cases where traditional law remained
silent. We should also note that in all these cases modern law, in
its form encountered in the colonies, was not necessarily the same
as that applied in the home country. Yet it was no less imported
law for all this.
The rulings of judges were similarly inspired. Throughout most
of the African continent a two-track legal system was applied: so-
called ‘traditional’ justice and state justice, a dualism which
appeared to guarantee a respect for traditional law. Yet this dual­
ism was so fashioned as to become one of the main avenues for
acculturation. Whilst the traditional courts applied only tradition­
al law, state courts pronounced decisions on the basis of both
modem law and traditional law (where one of the parties had
modem status and the other traditional, or when two parties both
enjoying traditional status chose to exercise their right to plead
before a state court). State judges were often influenced by their
Western legal training and distorted traditional law, subjecting it
to the influence of modern law and incorporating such features as
a respect for written forms, an emphasis on the individual, pre­
scription, the right to terminate joint possession, etc. Modem law
had a further advantage: judges, whether traditional or state,
could ensure it prevailed over traditional law if the latter ran
counter to colonial public order, or did not offer a reasonable or
Legal Acculturation 305
sufficient outcome. These phenomena were encountered in all
colonies, but with varying intensity. British colonies, influenced
by the common law tradition, limited the influence of state courts
and allowed traditional justice to junction. The reverse was true
in French-speaking Africa: the rulings of traditional jurisdictions
were recognized only where they could be incorporated into arbi­
tration procedures. Traditional law cases were settled by state
courts. Furthermore, we must note that these traditional jurisdic­
tions were legal forms which had already undergone accultura­
tion. These were not, in effect, modes of dispute settlement
existing prior to colonial rule, but state-organized jurisdictions
covering those populations subject to traditional law. State law,
clearly influenced by the European legal experience, thus flour­
ished during and after colonization through a number of develop­
ments which we will now examine.
B: T he implantation of European law
As we have just seen, European law underwent a partial transfor­
mation under foreign skies: the inauguration of a colonial system
of public order does not lead to the comprehensive transfer of law
as applied in the home country. Traditional law has but little
influence on colonial law. On the contrary, the way custom is
reinterpreted is evidence of the progressive corruption of tradi­
tional law, subject to the input of exogenous legal principles.
172 T h e r e in te r p r e ta tio n o f c u sto m s
The reinterpretation of customs is less spectacular than legislative
reforms, but has a more deep-seated effect: the customs appear to
survive unchanged, since reinterpretation is in the first instance
concerned with giving new legal meanings to former traditions.
Soon, however, given that the explanatory principles have under­
gone a shift in meaning, the content of the customs is also altered,
and responds to new values, emanating from other cultures.
Reinterpretation is in any case tantamount to a subde adjustment
to the contrasting conceptual frameworks of modem law and tra­
ditional law. Differing modes of thought can in fact occupy the
same mental (and legal) territory. Either they confront each
other, in which case conflict ensues. Or, just as frequently, they
coexist. Such coexistence may be achieved through reinterpreta­
306 Legal Anthropology
tion, but ultimately leads to the disappearance of traditional val­
ues. Coexistence may also take the form of a division of areas of
competence: different norms are applied in private and public life
(we know that in Japan the material world has been largely
Westernized, yet family relations have remained traditional).
The common thread in the above is that the accommodation of
traditional law to new law takes place in a relatively spontaneous
manner. In other cases, legal acculturation flows from more for­
mal and deep-seated processes: the transcription, classification
and codification of customs.
173 The classification o f customs
Transcription and classification of customs is a practice with a
long ancestry, frequently associated with the appearance of a new
power structure. When power is centralized, it tends to bring in a
legal system which aspires to impose uniformity on society; it also
becomes public and increasingly abstract. These characteristics
are obtained through a transition to written forms (as in the case
of the classification of Romano-barbarian laws, following the col­
lapse of the Western Roman Empire, carried out in barbarian
kingdoms which had already undergone acculturation as a result
of contact with Greek and Roman values). France went through a
similar process at the end of the middle ages. The king ordered
the classification of customs on the pretext that it had become
increasingly difficult to establish their content, given the conflict­
ing interpretations of the parties involved in litigation. This pre­
text provided an opportunity for royal judges to incorporate the
concept of reason, as developed by canon law: the task of judges
was to demarcate custom and use it as a basis for the elaboration
of rules and their subsequent reasonable application.12 J.
Vanderlinden does not believe that customary law was in decline
when classification led to its absorption by royal law.13The people
were well informed about their customs, which was, progressively,
less often the case with judges, schooled as they were in Roman
law and drawn from other areas. In fact custom became one of
the weapons of the people against a judge imposed from else­
where by a central power. Henceforth it was imperative that the
monarchy bring custom under its control. This was the purpose
of official classification, often resulting in a corruption of custom­
Legal Acculturation 307
ary law, since it was modified to facilitate its ‘modernization’ in
written form. Subsequently, learned writers compared customs in
their written forms and attempted to detect similarities in the
process of formulating customary common law.
The parallels between these developments and those which
were initiated in the French colonies from the beginning of the
twentieth century onwards are striking. This is exemplified in the
Roume doctrine, which served as a basic for official policies. In
1905 Roume, a governor, requested that judges compile informa­
tion to produce a collection of customs. The judges should take
advantage of the opportunity to ‘give them [the customs] a clarity
in which they are all too often deficient’, making a synthesis of the
different practices with which they were confronted. Roume also
stated:
Our firm intention of respecting customs cannot diminish our
duty to reconcile them with progress, regulating and improving
them. By seeking the assistance of the native courts, it should
be possible to obtain a rational classification and an elabora­
tion of customs and practices, compatible with the social con­
dition of the people. These customs and practices should not
attempt to conform with our own metropolitan legal doctrines,
with which they may well clash, but with the fundamental prin­
ciples of natural law, the fount of all law-giving.
R. Delavignette, another governor, denounced the Roume doc­
trine in 1931, in his critique of the classification of Ivory Coast
customs:
What remains of the meaning of an African custom where pun­
ishment has been Europeanized? . . . Custom has lost its spiri­
tual quality. In abolishing ordeals in furnishing proof, in
curtailing oaths on fetishes or on the Koran, in failing to take
into account the supernatural aspect of judges, in stripping
chiefs of their legal power and in calling men before the courts
as assessors who are no longer the elect, the representatives of
the old Africa, have we not emptied custom of all content? . . .
When we say we judge according to custom, what we mean is
that we are judging the custom itself, using the Code Napoleon
as a yardstick. . . . If you open custom to the influence of the
Code, if you classify it according to categories, you are playing
 308 Legal Anthropology
an active part in the social death of the natives. You will arrive
at nice abstractions in which the tributories of your justice will
be depersonalized. You will be providing an incentive to root-
lessness.14
Admirable lucidity! These arguments do not, unfortunately,
account for the lack of interest in the Roume doctrine at its incep­
tion: priority was given to the economic development which
accompanied the ‘profitable’ use of land, itself a result of ‘mod­
em ’ methods. In 1931, at the very time when Delavignette was
condemning Roume’s ideas, Brévié’s doctrine was reinforcing
them: an official classification of custom was required, which
would take the form of an approved Afrique Occidentale
Française (AOF) collection. In fact the Brévié doctrine ended in
1937 with the publication of customs whose influence fell far
short of expectations: the highly ethnocentric nature of the ques­
tionnaires used and the poor grounding in ethnology of those
conducting the inquiry contributed to this failure. Further
attempts, conducted with greater scientific rigour, took place
between 1940 and 1960 in Afrique Equatoriale Française (AEF)
in territories under French mandate and in the Belgian Congo.
However, they were unofficial and, besides, this was now the era
of independence: the new African leaders, emphasizing national
unity and economic development, believed that they would be
better served by law codes on the European model than tradition­
al systems of law, even where customs were classified.15 Any
change in policy was in appearances only; the thrust was the
same. The classification of customs and codified law both tended
to weaken the influence of traditional law. However, after nearly a
century of application of this policy it has not, as yet, met with
success, despite the avalanche of law codes which has descended
on the continent.16
C: U ncertainty and reversals in the post-colonial period:
from law codes to a search for roots
The tendency to codify law grew apace from the granting of inde­
pendence onwards; several factors conspired to produce such
enthusiasm. Yet new states did not all systematically turn to codi­
fied law in planning their future; some opted for policies which
favoured more appropriate legal systems, founded on greater
Legal Acculturation 309
respect for traditional law. The result is that all the richness and
complexity of the legal history of the continent is today reflected
in the wide range of African legal systems. Two subsections will
be devoted to the study of these problems, dealing in m m with
codification and with a new hierarchy of sources of law.
Codification has been resorted to in a number of cases: it corre­
sponds with a phase in social and political development, of which
history furnishes us with several examples. In Africa, codification
has been inspired by a number of related motives and has taken
on altogether different proportions.
174 The spirit o f codes
Pierre Bourdieu, the sociologist, sees the emphasis on form as a
characteristic of law codes (the vis formae of the Roman law).17
Codification is a symbolic ordering process associated with large
state bureaucracies. The prestige of a code extends beyond its
content and prescriptions, hinging on the very notion of codifica­
tion. The idea of a code enshrines a number of beliefs: codified
law is clear, easily communicable, ordered, rational. These beliefs
do not always accord with reality: are law codes, even today, easy
to consult, for either Europeans or Africans? In fact all these fea­
tures are a smokescreen: the authority of a code ultimately resides
in the political power of the state which has created it. This
supremacy is amplified in its formal aspects.18 A comparative
study of legal codes and the prescriptions of monotheist religions
would no doubt highlight common elements in these two forms of
discourse.
Is codification an expression of state supremacy? The work of
the legal historian J. Gaudemet would certainly incline us towards
this view18: the study of a wide range of codifying initiatives
throughout the world up to the present day reveals that they are
linked to the appearance of a new social order, the development
of a uniform system of law, usually state-based, and an increase in
the power of the state. The state attempts to extend its authority
over legislation, treating the various peoples or social classes
under its control as a single entity. Codification is in consequence
essentially a political phenomenon, and does not indicate an
advance for the human condition, contrary to the beliefs of its
 310 Legal Anthropology
advocates: whether codification is more ‘rational’ than the prac­
tices which it replaced remains to be proven. In fact codes are
examples of new modes of thought and new parameters rather
than the advance of rationality. A few examples from history will
suffice to demonstrate that codification does not rhyme with civi­
lization.
In ancient China, considerable reticence was expressed con­
cerning codification.20 The School of Laws, which favoured
authoritarian state-based law, met with success only when the
feudal states which made up China began their movement
towards centralization (third century Be), and law acquired uni­
formity. Fa, the primacy of law and codification, replaced li, a
body of rules and conventions whose application differed accord­
ing to context: family, clan, or public life. The li dominated the fa
until 1912 and the birth of the Chinese Republic. However, the
new regime, much influenced by the West, embarked on a codifi­
cation of civil law which the people shunned. When the commu­
nists took power the traditional distinction between li and fa was
reinterpreted: the li was replaced by Mao’s thoughts and the deci­
sions of the Chinese Communist Party, and subscribed to by all
committed communists; the new fa, a collection of rigorous pre­
scriptions of penal law, was to be applied to counter-revolutionar­
ies and foreigners. There was no codification during the Maoist
period. The Chinese law codes have emerged only in recent years,
in the reaction following Mao’s death.
Elsewhere, some Islamic countries have attempted codification,
but these codes have generally remained consistent with the tradi­
tional rules of the fiqh, the main tenets of Islam. Despite the
minor nature of such modifications, these law codes are now
denounced by Islamic fundamentalists.
It is the West that has expressed the greatest confidence in cod­
ifications and compilations, from Justinian21 through to the
French Code of 1804, one of whose authors, Portalis, was to
write, in an emphatic manner: ‘the very existence of a standard
civil code is a movement which demonstrates and guarantees the
permanent restoration of internal order to the state. Our enemies
should quake . . . at witnessing thirty million French citizens,
once divided by so many prejudices and varying customs, solemn­
ly bearing the same sacrifices and bound by the same laws.’22
Today authors such as P. Decheix23 discern a crisis of confidence
Legal Acculturation 311
in codification: some matters are referred to traditional branches
of law (town planning makes use of administrative, civil, criminal
and fiscal law; the changes in the economy and the appearance of
the law of business have weakened the influence of the
Commercial Code). Sub-Saharan Africa has also shifted from ini­
tial enthusiasm to a more prudent attitude concerning codifica­
tion.
175 Codification and independence in Africa
On gaining independence, the emergent African states devoted
their energies to two problems: economic development and
national unity. They often resorted to codification in achieving
these two goals.
Advocates of ‘development law’ believed that traditional law
was poorly adapted to economic development on the Western
model. It was attacked as being imbued with magic and religion,
and ignoring the basic concepts of the market economy.
Important elements, such as contractual obligations, were absent.
In family relations the extended family, dowries, polygamy, all
were viewed as institutions militating against economies of scale
and social mobility. Landholding law was a particular butt of crit­
icism24: it was taken to task as being responsible for an under­
utilization of land. African legislators thus initiated reforms in
agriculture and landholding,25 aiming to shake as much land as
possible free from private ownership and replace it with state con­
trol. These reforms frequently met with the hostility of the peas­
ants, who were strongly attached to traditional landholding.
Foreign experts often attacked such rearguard attitudes. This was
the case with R. David, the comparativist, who was asked to pro­
duce a feasibility study for a civil code for the Ethiopian Empire.
David believed that traditional law should be abandoned and
replaced by modem law, to build ‘a new system . . . based on the
demands of the economy rather than on sociological observations:
the code should be seen as a political instrument determining
paths of development, rather than a folksy collection of customs
often standing in the way of development. . . . This custom [tradi­
tional law] is not worthy of respect; it is responsible for the pre­
sent retarded state of African society; it is responsible for
under-development of all kinds.’26 In fact, as E. Le Roy has cor-
 312 Legal Anthropology
rectly stated,27 codification is often responsible for legal under­
development, since it sometimes reinforces inequality and on
other occasions excludes from its purview all those who have no
education or are not French-speaking, thwarting the objectives of
development and national integration. The effects of this policy
were so apparent that between 1970 and 1980 a new approach
appeared, sociological positivism: henceforth the opinion of the
population must be sought out, particularly concerning their
attachment to traditional law. Traditional law was not only deni­
grated at independence but also misunderstood: attempts at clas­
sification were carried out in the wrong conditions.28 Ethnologists
had no legal experience and jurists had no ethnological experi­
ence. It was thus hardly surprising that the new leaders and their
European advisers sometimes committed the error of judging tra­
ditional law according to the old ethnocentric prejudices of the
ex-colonizer. Amongst these errors there was a basic misappre­
hension: confusing the content of traditional law with its concep­
tual framework. There is some truth in the assertion that
traditional law, in certain areas, is not geared to the demands of
development. However, this does not mean that traditional law is
incapable of producing new legal norms: a hallmark of customary
law has always been its flexibility and the ease with which it can
be adapted. If all these landholding reforms and codifications
have produced only unsatisfactory results, this is because their
prescriptions were perceived by people as law imposed from the
exterior. Even had traditional law had to be modified, this would
have been preferable to authoritarian alteration or suppression. It
is not surprising that events took the course they did, bearing in
mind that codifications were not only legal reforms, they also
served socioeconomic interests. We have seen that codification
generally goes hand in hand with increasing state control and
social change.29 State-based law in newly independent states, both
in its development and its application, was controlled by the new
elites and strongly influenced by interest groups who played an
active role in the ‘modernizing’ sectors of Third World coun­
tries.30 The majority of the population, living mainly in the rural
areas, were strangers to both the thinking and the content of
state-based law, influenced as this was by European models.
Somewhat naturally they tried to avoid contact with this law and
continued to use traditional law, all the while implementing
Legal Acculturation 313
changes in norms and behaviour within it.
These observations explain the fact that law codes have not, in
general, assisted the cause of national unity, since they have not
led to a unification of law. R. Degni-Ségui, a jurist from the Ivory
Coast, argues that the constitutions and legal organization of
most emergent states strove for both codification and the unifor­
mity of national law.31 Codification either relied on foreign law,
highlighting the de facto discontinuity between traditional law and
modern law; or officially recognized this discontinuity, resorting
to colonial legislation in handling conflicting internal laws.
However, traditional law has, in many instances, been the rallying
point for defiance.
176 Defiance and traditional law
The new African states very quickly committed themselves to
m a in ta in in g the law of the outgoing colonial power.32 They feared
a legal vacuum and either had a poor knowledge of traditional law
or found it did not suit their needs. However, this was only a
holding operation; the new states would have to deal with the
problem of traditional law sooner or later, either in combining it
with modem law or in excluding it from the official legal process.
A number of different legal policies were adopted.
Some states which were better disposed towards traditional
law, or feared that its abolition might create disorder, did not pro­
duce codified law and recognized those traditional systems which
had survived colonial rule. This form of law occupied an inferior
position in the legal hierarchy and was submitted to judge-made
rulings when it conflicted with state law. In other instances so-
called ‘authentic’ policies were implemented, relying on tradition­
al law: custom was not necessarily rigorously adhered to, but
innovations in law strove to maintain its spirit.33 However, in the
majority of cases traditional law was abolished, whether by pro-
Western states (where it was considered inappropriate to the mar­
ket economy), or by socialist states (where it was identified with
an archaic stage in production, perpetuating inegalitarian social
structures).
Codification was often used against traditional law. This is
revealed in the measures contained within codified law: the
emphasis given to the married couple, the insistence on profitable
 314 Legal Anthropology
land use and the ensuing conflict between modern and traditional
law.34 However, in many cases, codification fell short of its pro­
claimed intentions. First, there were few states which, unlike
Algeria or Ethiopia, achieved a global codification of civil or com­
mercial law: in most cases, as with the codified statutes of the
French absolute monarchy, African codification was limited to a
number of provisions in specific areas of law with no attempt
made to cover whole branches, preserving the influence of tradi­
tional law in matters where codification was absent. Second, tra­
ditional law put up resistance of an intensity unexpected by
legislators: either de facto (the majority of the population avoided
modem law and continued to live by its customs, particularly as
far as family law and the settlement of disputes was concerned);
or de jure (legislators, given popular opposition, eventually rein­
troduced traditional law into legislation and codes, creating a
legal dualism which conflicted with original intentions).
The different strata of African law are evidence of this eventful
legal history.
African law: it is not our purpose to establish a hierarchy of
sources of law, but to indicate the extent to which the various sys­
tems of law, official and non-official, currently locatable in Africa,
are used as tools in the hands of groups with divergent interests.
These groups can be divided into two: dominating groups and
dominated groups.
177 Law and the dominated: from traditional law to popular law
Law is used by most populations to counter dominance, and even
exploitation. Four categories emerge: two have stood the test of
time (traditional law and custom), two are new (local law and
popular law).
Traditional law was practised by indigenous populations before
colonization (Islamic law is included in this category). As a result
of colonial rule, its role is progressively contested and diminished.
In an initial, neutralizing phase, the colonial power does no more
than collect taxes, organize conscripted labour and impose pay­
ments in kind, without directly intervening in local affairs.
Traditional law continues to exist, but movements in population,
taxes, forced labour, religious conversion and changes in personal
Legal Acculturation 315
status all conspire to modify its performance.
Customary law appears only under colonial rule. The classifica­
tion of customs, as we have seen,35 results in a corruption of tradi­
tional law. Its appearance coincides, on an economic level, with
what has been described as the absorption phase: commercial
markets, hitherto peripheral to local populations, now develop,
without, however, immediately disturbing local social interaction.
Currency and individualism appear, coupled with the organiza­
tion of the lower instances of justice, controlled by the local com­
missioner. He is the sole competent authority in criminal matters
and makes judgements using Western categories of admissible
evidence. New forms of litigation appear, either unforeseen by
earlier forms of social regulation, or involving peoples with differ­
ent customs as a result of population movements. These innova­
tions mean that it becomes necessary to modify traditional law;
this is achieved through classification.
Local and popular law both appear in a third phase of econom­
ic development, termed dissolution, which begins prior to inde­
pendence and continues to the present day. Economies become
totally dependent on world markets; monetarization and individu­
alism develop even further. Society is submitted to a process of
‘déstructuration’ which brings social organization into line with
new forms of economic organization. Traditionally dominant
groups either maintain their position or give way to new elites.
Local law represents one of the legal forms of such a transition.
As in the case of customary law it is an avatar of traditional law,
but occurs in a more intense phase of acculturation. Le Roy has
described it as ‘a legal system which appears with the increased
importance of the state and its administrative apparatus, whose
development and authority are, to all intents and purposes, deter­
mined by the state, whereas its day-to-day operation is left in the
hands of local authorities, in a policy of decentralization’. The
originality of local law lies in the fact that it is initiated and regulat­
ed by the state as a means of social control, but, unlike those
methods used to achieve the same results through the corruption
of traditional law, it is based on the interpretation of external legal
instruments according to the spirit of indigenous legal thinking.
Local law can be ambiguous in nature: it appears both as the law
of the dominated, since they play a direct part in adapting it to
their needs, and also as the law of the dominators, whose grip is
 316 Legal Anthropology
maintained or tightened. Both Benin and Senegal have experi­
enced these aspects of local law. Generally speaking, authority was
vested in a public legal entity, incorporated into the hierarchy of
state institutions and awarded specialized areas of competence.
Thus in Senegal, in 1972, the rural areas became such an entity,
financially independent and headed by a council establishing rights
and usage, controlled a posteriori by a tutelar authority. Litigation
concerning land is usually handled in a very flexible manner with
the frequent use of conciliation, reprimand and witnesses and rul­
ings which closely resemble the idea of traditional justice. Yet a
new rural bourgeoisie has also emerged from these rural councils,
well integrated into the capitalist economic system.36
Popular law consists of an amorphous body of law, whose con­
tent is still little understood, due to its unofficial nature. Although
more difficult to observe, this law, rather than state law, is the law
most commonly applied (such law also exists in Western soci­
eties).37 Popular law thus enjoys an existence separate from the
legal system of the state, both in cities and in rural areas. This
essentially innovative form of law, whilst different from state law,
can also be contrasted with traditional law.
178 Law and domination: state-based law
The law of domination employs state law, which can be divided
into two categories: civilian law and neo-state law.
Civilian law, or law inspired by the civilian tradition, finds its
inspiration in the Civil Code. It consists either of the incorpora­
tion of the former colonial power’s legislation, or of its modifica­
tion in a number of areas.
Neo-state law is believed by Le Roy to be a literal interpretation
of the founding principle of European legal theory: unitarism, the
elimination of diversity to achieve unity imposed on an institu­
tion, a concept, or a person. Thus the head of state is also the
head of the executive, the party is a single party, federalism is
rarely considered as an option and law is codified and uniform.
The main result of this neo-state concept of law, adopted as
much by states based on the capitalist economic model (Ivory
Coast and Gabon) as by those of a socialist persuasion (Burkino-
Faso), is the dominant position of the state over unions, parties,
education, land use, etc.
Legal Acculturation 317
Civilian and neo-state law are associated in the main with dom­
ination, but can be used against a dominating power, since they
can be appropriated by local law and popular law. Generally
speaking, in our societies and in Third World countries alike,
each tier of law is used by social actors in a different way, the ulti­
mate choice depending on which tier offers the most benefits at
the least cost, and the actors’ own perception of it. A peasant
farmer, whether from the Ivory Coast or Picardy, will make use of
rights which state-based law confers on him, whilst attempting to
evade this law in other areas. This behaviour is only one of the
many forms resistance to legal acculturation can take.
179 Conclusion: the contribution o f legal anthropology to the law
o f the future
Legal anthropology, attached as it may be to the traditions of the
societies it describes, is nevertheless not backward-looking or
uninterested in the idea of change. The numerous examples of
the resistance offered by traditional law, which we have dis­
cussed in this chapter, do not all lend themselves to a positive
interpretation. They certainly express a fondness for the past, an
attitude which, depending on one’s outlook, could be described
as a virtue or a fault; they also constitute a mass refusal of the
modernity which the state claims to offer. It would be a refresh­
ing change if the two alternatives proposed ceased to be carica­
tures: either the return to a past which no longer exists, or a
future based on a European blueprint and decided elsewhere.
Thirty years ago these appeared to be the only alternatives.38 We
now know that this need not be the case. Not only do popula­
tions still use their traditional law, but popular practices have
produced new unofficial law. In our view state-based law is not
the natural and long-standing enemy, even if its pre-colonial and
post-colonial intervention appears to have deserved the criticism
we have levelled at it. It can be used to build the law of the
future and legal anthropology can offer useful counsel. What
kind of counsel?
First, it can confirm that there is scope for a different law of
development, one which will consider African attitudes and which
will, in consequence, be more efficient than the development
plans which have to date been based on the Western model. This
318 Legal Anthropology
involves a more general shift in thinking towards ‘authentic’ legal
policies, which do not involve a return to the pre-colonial past,
but adapt old solutions to fit new situations. There are already
many examples of this kind of initiative.39 New family law from
Zaire provides an example40: names need not be patronymic and
should be taken from the Zairian cultural heritage; the father is
the head of the family and his spouse needs his assistance in any
legal act; there is a fixed ceiling to dowry payments, but the
dowry remains a feature of marriage; in the case of violation of
conjugal duties, the guilty party may have to perform traditional
rites of atonement; the cohesion of the family is reinforced in a
number of ways, the household consisting of the couple, the chil­
dren in their charge and all those who are dependent for food on
the couple, providing they live in their home; furthermore kin and
those related by marriage are bound by civil obligations (whereas
the old Civil Code only stipulated moral or natural obligation).
Some property reforms (Tanzania, Madagascar) attempt to
involve traditional communities in new production methods.
Legal anthropology also instructs us that traditional societies
were in essence pluralist, which should help future legislators to
limit the monopolistic tendencies of the state: the state should
leave a measure of autonomy to both new and traditional com­
munities, and recognize that several different administrative sys­
tems can coexist (in some cases the poor organization of state
services has produced, as a happy consequence, an unexpected
development of local communities). The same reliance on plural­
ism is also to be encouraged in the field of legal organization.41
Finally, we have seen that one of the main characteristics of tra­
ditional law has been the flexible, non-mandatory use of norms: it
is concerned more with ‘law as model’ than ‘law as sanction’.
Such a reversal of the role of law tends to shock some jurists, who
speak of ‘phantom law’.42 We would rather employ the term ‘pro­
gressive law’. This new legislative policy (adopted in both
Ethiopia and the Ivory Coast) is founded on the notion that new
law, officially blessed by legislators and its subjects, cannot imme­
diately be applied in its entirety: it represents a model of how
society should develop, rather than a mandatory statement; modi­
fication may arise in the course of practical application.
Appearances to the contrary, this is not a fictitious legal dream­
world. Methods do exist whereby law of this kind can be intro­
Legal Acculturation 319
duced43: the addition of transitional measures to new law; forward
planning which includes progressive and controlled development
of legislation, accompanied by an educational programme in
schools (extended to include the civil service, unions, or similar
organizations); allowing the population to opt for a particular
legal status and choose one of a number of jurisdictions; consider­
able powers can be granted by legislators to judges and the civil
service in the interpretation of law and its adaptation to the needs
and desires of the people. This policy is not without its pitfalls:
abuses may arise, which could strip law of all authority. However,
case-law should contribute to this search for equilibrium between
state law and community law. Should Western jurists be troubled
by such a notion? They should recall that Portalis, the main
authority of the Civil Code, was perhaps one of the principal the­
orists of ‘law as model’ when he stated that:
the course of justice would be impeded were the judge not able
to pronounce when, the law has spoken. Few matters can be
decided by a precise text; it is through general principles,
through doctrine, through the science of law that most litiga­
tion has been settled. . . . The purpose of statutes is to take in,
in large sweeps, the general maxims of law, to delineate princi­
ples which will be fertile in their consequences and to avoid
entering into the details which may arise in each matter.44
Finally, our criticisms should be directed at those responsible for
the colonial and post-colonial state. Legal anthropology has not
succumbed to an addiction to the past, demanding the abolition
of the state. However, it does demand that the state and its law be
returned to society since, as traditional societies teach us, power
must serve society and not vice versa.
NOTES
1 See in particular: M. Alliot, ‘L’acculturation juridique’, in
Ethnologie générale, ed. J. Poirier (Paris, Gallimard, 1968), pp.
1180-1236; ‘Uber die Arten des ‘‘Rechts-Transfers’”, in
Enstehung und Wandel rechdicher Traditionen (Freiburg/
Munich, K. Alber, 1980), pp. 161-231. See also J. Gaudemet,
‘Les transferts de droit’, L ’Année sociologique, 27 (1976):
29-59.

320 Legal Anthropology
2 It is not only non-state societies which act in this way. In
ancient China law was considered good only for barbarians.
Confucius said: ‘If the people are led by laws, and uniformity
is achieved is through punishment, people will try to avoid
punishment, without any feeling of shame. If the people are
led by the path of virtue, and uniformity is obtained through
ritual, people will have a sense of shame, and will become
more worthy.’
3 See above, no. 29.
4 See above, no. 177.
5 A description of the way in which French public and private
law penetrated sub-Saharan Africa to the advantage of colo­
nial rule, and was adopted by African legislators on indepen­
dence, is to be found in J. Hilaire, ‘Nos ancêtres les Gaulois’,
Annales africaines (1964): 7-77. See also, for an approach to
this phenomenon, illustrated by the spread of Roman law, the
development of royal law and the reception of European Law
in the Arctic and sub-Saharan Africa today, N. Rouland, ‘Les
colonisations juridiques’, in Journal of Legal Pluralism, forth­
coming (1988).
6 This definition of acculturation was given by Redfield, Linton
and Herkovits in 1936; see R. Bastide, Anthropologie appliquée
(Paris, Payot, 1971), pp. 44-5.
7 In precise usage o f‘customary law’; see above, no. 177.
8 See J.-C. Froelich’s table, ‘Droit Musulman et droits coutu­
miers’, in Etudes de droit africain et de droit malgache (Paris,
Cujas, 1965), pp. 387-9.
9 See Bradford W. Morse, ‘Indigenous law and state legal sys­
tems: conflict and compatibility’, in Indigenous Law and the
State, ed. Bradford W. Morse and Gordon R. Woodman
(Dordrecht, Foris Publications, 1988), pp. 101-20.
10 See above, no. 170.
11 There is a very clear account of these issues in M. Alliot,
‘Institutions privées africaines et malgaches’, Part I (unpub­
lished, Paris, LAJP, 1970-1), pp. 72-9; X. Blanc-Jouvan, ‘La
resistance du droit africain à la modernisation’, Revue séné­
galaise de droit, 21 (1977): 21-44.
12 See P. Ourliac, ‘Coutume et mémoire: les coutumes françaises
au XHIe siècle’, Jeux de mémoire (Montreal, 1985), pp.
111 - 22 .
Legal Acculturation 321
13 See J. Vanderlinden, ‘La coutume dans le droit français des
pays de coutume au XVI, XVII et XVHI siècles’, in Recueils de
la société J. Bodin pour l’histoire comparative des institutions, La
coutume (forthcoming [1988]).
14 R. Delavignette, Les vrais chefs de l’Empire (Paris, Gallimard,
1931), p. 151 et seq.
15 For a more detailed account of the various attempts at codify­
ing the customs of sub-Saharan Africa, see E. Le Roy and M.
Wane, ‘La formation des droits “non étatiques’”, in
Encyclopédie juridique de l’Afrique, the volume entided L ’Etat et
le Droit (Dakar, Nouvelles Editions africaines, 1982), pp.
366-70.
16 Some jurist-anthropologists have, notwithstanding, been mis­
taken. In 1958 Jean Poirier argued in favour of the classifica­
tion of customs, attributing the failure of this policy to
perfectly avoidable technical factors (see J. Poirier, ‘Le prob­
lème de la rédaction des droits coutumiers d’Afrique noire’, in
Etudes de droit contemporain (Paris, Cujas, 1963), pp. 111—23.
Poirier also states that ‘the real purpose of classification only
emerges in the context of the wider task of codification, for
which classification only prepares the ground’. This fits
Poirier’s belief that traditional law cannot meet the needs of
modernization and development: ‘The legal instrument [tradi­
tional law] which existed in a particular context is now outdat­
ed and cannot fulfil new needs.’ Yet, today, confronted with
the failure of codification and the law of development, a num­
ber of African countries have chosen to seek inspiration in tra­
ditional law, still practised by most people.
17 See P. Bourdieu, ‘Habitus, code et codification’, Actes de la
recherche en sciences sociales, 64 (1986): 40-4.
18 ‘To emphasize form is to give an action or discourse an
appearance which is recognized as conventional, legitimate
and approved, that is to say, a form which can be publicly pro­
duced. It is a policy or practice, which, presented otherwise,
would be unacceptable.’
19 See J. Gaudemet, ‘La codification, ses formes et ses fins’,
Indépendance et Coopération, 3—4 (1986): 238-60.
20 This is demonstrated in the following letter of reprimand,
addressed in 536 bc to a minister by his superior, for giving
the order to melt down cauldrons to produce the metal neces-
322 Legal Anthropology
sary for the codification and publication of a penal code:
‘When the people become aware that there are codes, they
lose all respect and awe for their superiors. People acquire a
taste for litigation and follow the letter of the law, hoping, by
some good fortune, that they will win their argument. They
will become ungovernable. . . . Once people realize the advan­
tage of pleading cases, they will abandon ritual and follow
your text. They will plead on points as nice as the point of a
needle or a knife. The multiplication of cases will be uncon­
trollable and extortion will know no bounds. . . . I have heard
it said that “when a State is on the point of disappearing, reg­
ulations multiply”. Is this where your conduct is leading us?’
21 Justinian (AD 527-65), the Emperor of Byzantium, had decid­
ed to restore the prestige of the empire in all domains. With
the help of a legal commission, he made several compilations
of ancient Roman law and gave it a new authority. The style
of certain passages in the preface of the Digest is reminiscent of
the language of codes: ‘But the entire ancient law, in a state of
confusion for some fourteen hundred years and now by us
made clear may be, so to speak, enclosed within a wall and
have nothing left outside it. . . . By this means, in all parts of
our aforesaid Code there is to be no place allowed to antino­
my . . . but there must be full agreement, full consistency, and
no one is to raise any dispute on the question’ (Constitutio Deo
Auctone, §1, 5, 8. ‘No man of those who either at this day are
learned in law or hereafter shall venture to append any com­
mentary to these laws. . . . Any further interpretations, or
rather perversions, of these rules of law we will not allow them
to exhibit. . . if any should venture to do such things, they will
themselves be liable to be prosecuted for forgery, but their
books will altogether be set at nought. But if, as before said,
anything should appear doubtful, this must be by the judges
referred to the Imperial Majesty, and the truth be pronounced
on the Augustal authority, to which alone it belongs to make
and interpret laws’ (Constitutio Tanta, §21), The Digest of
Justinian, trans. C. H. Munro.
22 Portalis, in Discours, rapports et travaux inédits sur le Code civil
(Paris, 1844), p. 302.
23 See P. Decheix, ‘Le Congrès de Louisiane’, Indépendance et
Coopération, 3—4 (1986): 211.
Legal Acculturation 323
24 These critiques have recently reappeared with a more
favourable gloss in M. Bachelet, ‘Réformes agro-foncières et
développement’, in Systèmes fonciers à la ville et au village, ed.
R. Verdier and A. Rochegude (Paris, Harmattan, 1986), pp.
125-55.
25 We should not confuse agrarian reform [réformes agraires],
where social justice is achieved through the redistribution of
land taken from large estates (as in contemporary South
America), with agro-landholding reforms [réformes agro-fon­
cières], whose goal is development through the reorganization
of the legal processes through which land is appropriated and
used (see sub-Saharan Africa where land is rarely seized).
26 R. David, ‘La refonte du Code civil dans les Etats africains’,
Annales africaines, 1 (1962): 161.
27 See E. Le Roy, ‘L’expérience juridique autochtone de
l’Afrique noire contemporaine et le transfert des connais­
sances juridiques occidentales’, in Domination ou Partage?
(Paris, Unesco, Ed. Actuel, 1980), p. 114.
28 See above, no. 173.
29 See above, no. 174.
30 See M. Fuchs, ‘Recht und Entwicklungslànder’, Zeitschrift fur
vergleichende Rechtswissenschaft, 4 (1981): 370.
31 See R. Degni-Ségui, ‘Codification et uniformisation du droit’,
Encyclopédie juridique de l’Afrique, Vol. 1 (Dakar, Nouvelles
Editions africaines, 1982), p. 458.
32 On codification in the post-colonial era and the contrasting
attitudes of legislators towards traditional law, see ibid.; G.
Conac, ‘La vie du droit en Afrique’, in Dynamiques et finalités
des droits africains (Paris, Economica, 1980), v-xxxx.
33 See below, no. 179.
34 See R. Verdier, ‘L’acculturation dans le domaine parental et
foncier en Afrique de l’Ouest francophone’, L ’Année soci­
ologique, 27 (1986): 403-21.
35 See above, no. 173.
36 For a more detailed account of local law, complete with exam­
ples, see Le Roy and Wane, op. cit. (n. 15), pp. 384-6; E. Le
Roy, ‘L’émergence d’un droit foncier local au Sénégal’, in
Dynamiques et finalités des droits africains, ed. G. Conac (Paris,
Economica, 1980), pp. 109-40; ‘Le droit et ses pratiques’,
special issue of Politique Africaine, 40 (1990).
324 Legal Anthropology
37 See above, nos. 31-42 for the importance of theories of legal
pluralism. E. Le Roy suggests, in ‘La domestication du
Léviathan ou l’envers du droit’, paper at the Franco-British
conference ‘Les Afriques francophones depuis l’indépendance’
(Oxford, 29-30 April 1988), that a form of popular law may
be operating when sections of the population take the repre­
sentatives of state power at their word: if the head of state says
that all families have a right to decent housing, without pro­
viding any practical means, some groups will seize this oppor­
tunity to build unapproved structures.
38 Thus, in 1956, Jean Poirier announced the disappearance of
the extended family and of polygamy, the desacrilization of
custom, and the primacy of codification, ruling out any re-
emergence of customary law ‘L’avenir du droit coutumier
négro-africain’, in L'Avenir du droit coutumier en Afrique
(Leiden, 1956), p. 168; and see above, n. 16). Thirty years
later we can concur with the Ivory Coast jurist R. Degni-
Ségui:
Can it be possible that a people, however ‘primitive’, altogether
abandon its values, even those it holds most dear, to adopt
those of a supposedly superior power? The answer would
appear to be no. Western law cannot triumph in all cases, and
in all areas, completely eliminating traditional law in all its last
redoubts. This law will necessarily influence so-called modem
legislation and will have some currency. The new African law
will emerge from this synthesis, the symbiosis of modern law
and traditional law. This will be the victory of traditional law.
The exact proportions of customary law contained in modem
law are immaterial. What matters is that, despite the deter­
mined efforts of African legislators to the contrary, this law will
succeed in imposing itself, in gaining recognition. The indeli­
ble traces of resistance which the new legislation bears will not
be a partial victory for traditional law but a victory - pure and
simple.
(R. Degni-Ségui, ‘Codification et uniformisation du droit’, in
Encyclopédie juridique de l’Afrique, Vol. 1 (Dakar, Les Nouvelles
Editions africaines, 1982), p. 474)
I Legal Acculturation 325
39 See M. Alliot, ‘Les résistances traditionelles au droit moderne
dans les Etats d’Afrique francophones et à Madagascar’, in
Etudes de droit africain (Paris, Cujas, 1965), pp. 235-56.
40 See Kalongo-Mbikayi, ‘L’expérience zaïroise de codification
dans le projet du code de la famille’, Revue juridique et poli­
tique, Indépendance et Coopération, 3-4 (1986): 474-90.
41 See the concrete proposals suggested by E. Le Roy,
‘L’évolution de la justice traditionelle dans l’Afrique franco­
phone’, Revue canadienne des études africaines, 1 (1975): 75-97.
42 See A. Allot, ‘Développement et évolution du droit privé en
Afrique anglophone’, Dossiers de l’Institut des sciences-juridiques
du développement (Université de Paris V, s. d.), p. 26.
43 See Conac, ‘La vie du droit en Afrique’, op. cit., above, pp.
xxix-xxx.
44 Robespierre is not usually considered an authority by jurists.
However, unlike Portalis, whom they prefer, Robespierre
shared their notion of law. He declared: ‘In a state which has a
constitution and a legislative body, case-law [jurisprudence] is
the law.’
FURTHER READING
180 Legal acculturation bibliography
This subject-area is very well represented in the literature, owing
to a number of factors. First, the diffusion of Western models
throughout the world has been an important phenomenon in the
last few decades, to such an extent that there are hardly any areas
left that have not been subjected to this influence. Second,
Western jurists have often acted as experts in drawing up constitu­
tions, legislation and law codes. Third, the study of acculturated
systems is easier for classic jurists to undertake than the study of
traditional systems, where anthropological knowledge is required
(although the unfamiliarity of a number of Western ‘experts’ with
this area has contributed to the failure of some of the economic
and legal development plans in which they have been involved).
The student thus has an abundant supply of literature at his or her
disposal; we will attempt to cover all the main areas.
As a first approach, there are the principal authorities on the
general theory of the transfer of law. See in particular M. Alliot,
 326 Legal Anthropology
‘Uber die Arten des “Rechts-Transfers” ’, in Entstehung und
Wandel rechdicher Traditionen (Freiberg and Munich, K. Alber,
1980), pp. 161-231, which stresses the illusory character of most
of these transfers. More historical, but also relevant, is J.
Gaudemet, ‘Les transferts de droit’, L ’Année sociologique, 27
(1976): 29-59. A rather more traditional approach, not entirely
devoid of legal ethnocentricism, is that of A. C. Papachristos, La
Réception des droits privés étrangers comme phénomène de sociologie
juridique (Paris, LGDJ, 1975, 151 pp.). As regards legal accultur­
ation, specifically, the basic text, highly relevant today, is M.
Alliot, ‘L’acculturation juridique’, in Ethnologie générale, ed. J.
Poirier (Paris, Gallimard, 1968), pp. 1180-1236. Also by the
same author (and covering Africa in particular): ‘Les résistances
traditionelles au droit moderne dans les Etats d’Afrique franco­
phone et à Madagascar’, in Etudes de droit africain (Paris, Cujas,
1965), pp. 235-56; and ‘L’Etat et la société en Afrique noire,
greffes et rejets’, Revue française d’Histoire d’Outre-Mer, 68 (1981):
95-9. Also useful: J. Hilaire, ‘Nos ancêtres les Gaulois’, Annales
africaines (1964): 7-77. The author convincingly demonstrates
how African states have, in essence, taken up the legal system of
the outgoing colonial power, and stresses the resistance of the
population to this law. Hilaire also underlines the parallels
between our own legal history and that of sub-Saharan Africa.
On the current situation in Africa there are two main works.
First, Dynamiques et finalités des droits africains, ed. G. Conac
(Paris, Economica, 1980, 509 pp.); see in particular in this work
G. Conac, ‘La vie du droit en Afrique’, pp. v-xxxx; E. Le Roy,
‘L’emergence d’un droit foncier local au Sénégal’, pp. 109-40;
M. Bayona ba Meya Muna Kimwimba, ‘Le recours à l’authentic­
ité dans la réforme du droit au Zaire’, pp. 229-58; R. Verdier,
‘Coutume et loi dans le droit parental et foncier’, pp. 307-13; M.
Alliot, ‘Un nouveau droit est-il en train de naître en Afrique?’, pp.
467-95. More concise, but particularly useful for students, is J.
Vanderlinden, Les systèmes juridiques africains (Paris, PUF, ‘Que
sais-je’ series, no. 210, 1983, 128 pp.). Very clear and also rec­
ommended for students is the work of the great, untimely
deceased African jurist, G. A. Kouassigan, Quelle est ma loi?
Tradition et modernisme dans le droit privé de la famille en Afrique
noir francophone (Paris, Pedone, 1974). For an overview of legal
acculturation based on cross-cultural comparisons see N.
Legal Acculturation 327
Rouland, ‘Les colonisations juridiques: de l’Artique à l’Afrique
noire’, Journal of Legal Pluralism (1991).
The theme of legal acculturation in the colonial period should
first be studied as a general overview, without overlooking linguis­
tic factors in the resistance of traditional law. Some authors sug­
gest a general picture of interaction between indigenous and
modern law: Bradford W. Morse, ‘Indigenous law and state legal
systems: conflict and compatibility’, in Indigenous Law and the
State, ed. Bradford W. Morse and Gordon R. Woodman
(Dordrecht, Foris Publications, 1988), pp. 101-20; F. von
Benda-Beckmann, ‘Some comments on the problems of compar­
ing the relationship between traditional and state systems of
administration of justice in Africa and Indonesia’, JLP, 19
(1981): 165-75. For a study of acculturation in Africa, in addi­
tion to the work of G. Conac and J. Vanderlinden cited above, see
the following: E. Le Roy and M. Wane, ‘Les techniques tradi­
tionelles de création des droits’, in Encyclopédie juridique de
l’Afrique, l’Etat et le Droit (Dakar, Nouvelles Editions africaines,
1981), pp. 353-91, where Islamic law is covered; A. P. Robert,
‘Attitude du législateur français en face du droit coutumier
d’Afrique noire’, in L ’Avenir du droit coutumier en Afrique (Leiden,
1956), pp. 170-89; P. L. Agondjo-Okawe, ‘Les domaines d’appli­
cation des droits traditionnels’, in Encyclopédie juridique de
l’Afrique, Vol. 1, op. cit., pp. 405-21; E. Le Roy, ‘Les chefferies
traditionnelles et le problème de leur intégration’, in Les
Institutions administratives des Etats francophones d’Afrique noire, ed.
G. Conac (Paris, Economica, 1979), pp. 105-32; M. Allott, ‘La
Place des coutumes juridiques africaines dans les systèmes
juridiques africains modernes’, in Etudes de droit africain et mal­
gache, ed. J. Poirier (Paris, Cujas, 1965), pp. 257-66; X. Blanc-
Jouvan, ‘La résistance du droit africain à la modernisation’, Revue
sénégalaise de droit, 21 (1977): 21—44.
Some of the main processes of acculturation dealt with in this
chapter form the basis of individual studies. On reinterpretation
see: M. Alliot, ‘Coutume et mythe’, L ’Année sociologique
(1953-4): 359-83; F. Snyder, ‘Customary law and the economy’,
Journal of African Law, 28, 1-2 (1984): 34-43. On the classifica­
tion of customs see: J. Poirier, ‘Le problème de la rédactions des
droits coutumiers d’Afrique noire’, Etudes de droit contemporain
(Paris, Cujas, 1963), pp. 111-23; also by J. Poirier, ‘Pour un pro-
 328 Legal Anthropology
gramme d’urgence en ethnologie juridique’, Nomos, 1 (1974):
269-80; A. Gouron, ‘Le concours d’un droit écrit et d’un droit
coutumier et l’expérience médiévale française’, Annales africaines
(1962): 197-205; and in particular ‘La Coutume’, congress of the
Société J. Bodin pour l’histoire comparative des institutions
(Brussels, 1-5 October 1984), forthcoming (1988) in the Recueils
de la société J. Bodin, where we may note, in particular: J.
Vanderlinden, ‘La coutume dans le droit français des pays de
coutumes aux XVIe, XVIIe et XVIIIe siècles’ (very useful for
comparisons between the classification of customs in France and
Africa, and completed by P. Ourliac, Coutume et mémoire: les cou­
tumes françaises au XHIe siècle, Jeux de mémoire (Montreal, 1985),
pp. 111-22); E. Le Roy, ‘Une tentative de domestication de la
coutume sous l’influence des droits romanistes durant le période
coloniale en Afrique noire’; N. Rouland, ‘La coutume et la pensée
juridique sauvage: l’apport des sociétés Inuit’. Codification is an
important component of acculturation, and has been extensively
studied. Amongst recent works, the most complete is ‘Actes du
XVIIIe Congrès de l’IDEF’ (Louisiana, 3-9 November 1985),
published in Revue juridique et politique, Indépendance et
Coopération, 3-4 (1986), in which see in particular: J. Gaudemet,
‘La codification, ses formes et ses fins’ (pp. 238-60); see also the
summary by P. Decheix, ‘Le Congrès de Louisiane’ (pp.
207-12). R. Degni-Ségui’s work is essential reading:
‘Codification et uniformisation du droit’, Encyclopédie juridique de
l’Afrique, op. cit., Vol. 1, pp. 453-77.
A summary of the effect of these measures on official African
law is contained in: P. F. Gonidec, Les Droits africains (Paris,
LGDJ, 1968); R. Verdier, ‘L’acculturation juridique dans le
domaine parental et foncier en Afrique de l’Ouest francophone’,
Année sociologique, 27 (1966): 403—21; J. Costa-Lascoux, ‘De l’ac­
culturation à la transculturation: L’exemple des droits pénaux
africains’, Année sociologique, 27 (1966): 424-48. The classic argu­
ments advanced against traditional law are developed in a number
of works, some very recent, some by eminent authorities in com­
parative law, whose views are none the less deeply ethnocentric:
see J. Chabas, ‘Transformation du droit local et évolution
économique’, Annales africaines (1962): 151-9; J. Stoufflet, ‘De
l’élaboration d’une législation de droit privé dans un pays en voie
de développement’, ibid.: 250-5; R. David, ‘La refonte du Code
Legal Acculturation 329
I civil dans les Etats africains’, ibid.: 160-70; G. Pambon-
I Tchivounda, Essai sur l’Etat africain postcolonial (Paris, LGDJ,
i 1982, 165 pp.), pp. 62-4 is concerned with the ‘search for roots’
i in the name of development. In response a number of authors
stress the inadequate knowledge of traditional law on which these
ideas are based and the impasse in which Western-based develop­
ment finds itself in Africa: see E. Le Roy, ‘Droit et développe­
ment en Afrique noire francophone après dix années
d’indépendance politique’, Revue sénégalaise de droit, 9 (1971):
. 52-72; also by E. Le Roy, ‘L’expérience juridique autochtone de
j l’Afrique noire contemporaine et le transfert des connaissances
j juridiques occidentales’, in Domination ou partage? (Paris, Unesco,
! Ed. Actuel, 1980), pp. 95-126; M. Fuchs, ‘Recht und
i Entwicklungslander’, Zeitschrift fur vergleichende Rechtswissenschaft,
| 4 (1981): 355-72; M. Alliot, ‘Y a-t-il une crise du développe-
j ment?’, Cahiers du Gemdev, 1 (1984): 37-43.
j Whatever one’s own view in this debate, the resistance of tradi-
I tional law is an incontestable fact. For a general approach to this
' theme see: J. Poirier, ‘L’analyse des espèces juridiques et l’étude
i des droits coutumiers africains’, in Ideas and Procedures in
j Customary Law (London, Oxford University Press, 1969), pp.
97—109; E. Le Roy, ‘African traditional law and modernity’,
Revue Monchanin, 12, 4, 65 (1979): 35-43; also by E. Le Roy,
i ‘La vie du droit en Afrique’, Penant, 761 (1978): 315-23.
i)
I
X

Conclusion
Legal Anthropology and Metaphysics
And God saw that the wickedness of man was great in the
earth, and that every imagination of the thoughts of his
heart was only evil continually. And it repented the Lord
that he had made man on the earth, and it grieved him at
his heart.
(Genesis 6.5—6)
Behold, the tabernacle of God is with men . . . And God
shall wipe away all tears from their eyes; and there shall be
no more death, neither sorrow, nor crying, neither shall
there be any more pain: for the former things are passed
away.
(Revelation 21.3-4)
Some concepts appear inappropriately paired: a priori this would
seem to be the case with legal anthropology and metaphysics.
When humankind, in a search which may be never-ending,
attempts to shed some light on its condition, it takes a path whose
point of departure reaches back far beyond what we term as the
first civilizations: art, religion, a contemplation of the forces which
are believed to be at work in the cosmos and the natural world.
What of law? In comparison with these forces it seems trivial
indeed. If we examine the codes or the Journal officiel, all we find
are bitter conflicts of interest, guarantees and sanctions, formality
imposed on behaviour, and a style that is nothing if not specula­
tive. Shrouded in the same mist is the jurist, this figure who, in
everyday life, we rarely encounter unless we become suspicious or
misfortune strikes. It is a well-known fact that few teenagers have
any desire to become lawyers.
Yet law concerns beliefs about life and our universe which are
Conclusion 331
no less worthy of our attention than are art or religion. However,
to discern these beliefs, we have to learn to read them, and
acquire a consciousness of the legal experience of mankind. Legal
anthropology is an indispensable stage in this quest.
All societies exhibit the same ontological anguish, bom of a
dichotomy between humankind’s aspirations, which are infinite,
and the insubstantial means it has to realize these aspirations. If
our existence does have any meaning it is not revealed in our
immediate experience of life. Legal anthropology may not be a
new faith. However, it does represent a search for meaning,
humankind’s revolt against the absurd and its desire for coher­
ence, even transcendence, through the ages. How can legal
anthropology assist us with three of the most enduring questions
in the human condition: the direction of history, the existence of
evil, and the existence of death?
The direction of history, is history an eternal round of cycles, as
Greek and oriental thought would have us believe; does it, in
accordance with Christian belief, follow a plan; or does it obey
the laws of evolution, as suggested by nineteenth-century thought
and echoed in the ideas of the first legal anthropologists? Legal
anthropology cannot answer the first two questions. But confront­
ed with the third, it replies that humankind has, from its origins,
shown such capacity for invention that it would be illusory to
believe that modem societies are more ‘evolved’ than traditional
societies. The only choice a society can make is the particular
arena where it exercises its talents. As Claude Lévi-Strauss has
noted: if the West has confirmed its mastery over machines, the
Inuit and the Bedouin have triumphed over the most hostile envi­
ronments1; Melanesian art constitutes one of the pinnacles of the
aesthetic experiences of humanity, and the Australian Aborigines,
restricted to the most basic technology, have produced the most
refined forms of kinship organization, to the extent that we must
enlist the aid of mathematicians and information technology to
understand it. In the field of law, we have seen that many tradi­
tional societies have not only found solutions which are original
when compared with our own, but, in addition, already knew
what we claimed to have invented: law, judgement, punishment,
the married couple, contracts. The richness of their experience
forces us to rethink the notion - so convenient for us - of a unilin­
ear direction in history. If there is such a thing as evolution, it
332 Legal Anthropology
consists not in the abandonment of one solution in favour of
another in a chronological continuum, but in a reversible prefer­
ence for a particular form of sociolegal organization. This does
not entail the disappearance of other forms of organization which
will, probably only temporarily, fade into the background, or find
refuge in those areas of social life which official law has chosen to
leave in the shadows, and where they can survive. Furthermore,
legal anthropology, in denouncing evolutionism, has pinpointed
what may be one of the major weaknesses of Western thought,
one which traditional societies have known how to avoid: that of
uniformity. Uniformity is not a proscribed concept, it may even
be necessary to seek coherence beyond the impression of chaos
which variations in cultural and legal options may awaken in us.
But to believe in unity need not imply an emphasis on uniformity,
the experience of Western law notwithstanding. African thinking,
with its reluctance to consider opposites as mutually exclusive,
teaches us that the acceptance of pluralism provides the necessary
protection through which an equilibrium between order and dis­
order can be maintained. This would appear to be one of the
lessons of theories of legal pluralism: their vision of life in society
provides a more satisfactory model than models derived solely
from state-based law.
There is no rigid and predetermined purpose in history; we
must give that up for lost. Each society contains the necessary
intellectual resources to choose its own historical destiny. There is
no legislator as demiurge, who can lead us along a preordained
path: we are freer, but also more alone.
The existence of evil', in the biblical alpha and omega, Genesis
describes God’s discouragement in the face of man’s proclivity for
evil, and the apocalypse reveals the end of evil and suffering as
not of this world. We can only confirm, at the risk of being called
pessimistic, that evil dominates the history of humankind. Good
exists as well, and no doubt more frequently than we would like
to believe, since it often remains silent. However, in the present
state of our historical knowledge, if we had to take bets, it would
be on evil: the Auschwitz of good has yet to appear. The issue is
not yet settled. We may still believe that in the billions of years of
cosmic evolution before us, humankind may change sufficiently
or another, improved species may emerge. However, we can only
argue on the basis of our experience to date.
Conclusion 333
Both traditional and modern societies associate law with justice
and good.2 This is only half the story. Law is in fact associated
more with evil than with good. As J. Carbonnier has written, law
is not evil, but it would not exist but for evil - as the myths of the
golden age, past and future, stress.3 Law is the brand-mark of our
imperfection. However, it is not the never-ending penance of
Sisyphean labour. Bom of evil, law can avert misfortune. As we
have seen, it is through its rules that exchanges are organized -
matrimonial, vindicatory, etc. - between human groups, prevent­
ing the casting adrift of groups and the collapse of humanity. In
conclusion: if evil is a perpetual and unknowable disaster, law, for
its part, is a necessary evil which bathes in the reflection of good.
The existence of death-, there is, alas, one thing worse than evil,
death, of which Rostand has said: ‘The crime of death is not in
killing us, but in making our anguish eternal.’ Commonplace and
soothing expressions notwithstanding, death gives no meaning to
life; on the contrary, it removes it. If death is as it appears to be, if
God does not exist, then, as M. Eliade, the great historian of reli­
gion, said, ‘All is ashes.’
Claude Lévi-Strauss’s despairing vision, no doubt the result of
his own experiences, would then prevail:
Is this image [the setting of the sun] not true of humanity itself
and, beyond humanity, of all the manifestations of life: birds,
butterflies, shellfish and other animals, as well as plants and
their flowers? Evolution develops and diversifies their forms,
but always in view of their ultimate disappearance, so that, in
the end, nothing will remain of nature, life or man, or of his
subtle and refined creations, such as languages, social institu­
tions and customs, aesthetic masterpieces and myths, once
their firework display is over. My analysis, by proving the rigor­
ous patterning of the myths and thus conferring on them the
status of objects, has thereby brought out the mythic character
of those objective realities: the universe, nature and man
which, over thousands, millions or billions of years, will, when
all is said and done, have simply demonstrated the resources of
their combinatory systems, in the matter of some great mythol­
ogy, before collapsing in upon themselves and vanishing,
through the self-evidence of their own decay.
334 Legal Anthropology Conclusion 335

The fundamental opposition, the source of the myriad oth­ existence of an invisible world and an afterlife (the case for most
ers with which the myths abound and which have been tabulat­ other peoples). Traditional societies, as we have seen, use law to
ed in these four volumes, is precisely the one stated by Hamlet, give the dead a number of opportunities to intervene in the world
although in the form of a still over-optimistic choice between of the living, and use lineages to counteract mortality.
two alternatives. Man is not free to choose whether to be or Law thus exists beyond the reduced state it assumes in our
not to be. A mental effort, consubstantial with his history and textbooks, namely a number of strong principles in the garb of
which will cease only with his disappearance from the stage of reason, or, in more vulgar form, the remedies at the disposal of
the universe, compels him to accept the two self-evident and litigants. Legal anthropology demonstrates that, born of our
contradictory truths which, through their clash, set his thought imperfection and finitude, law can also be one of the instruments
in motion, and, to neutralize their opposition, generate an societies shape to transcend such limits.
unlimited series of other binary distinctions which, while never
resolving the primary contradiction, echo and perpetuate it on
NOTES
an ever smaller scale: one is the reality of being, which man
1 See C. Lévi-Strauss, Race et Histoire (Paris, Denoël-Gonthier,
senses at the deepest level as being alone capable of giving a
1961), pp. 41-50.
reason and a meaning to his daily activities, his moral and
2 See above, no. 64.
emotional life, his political options, his involvement in the
3 See J. Carbonnier, Essais sur les lois (Répertoire du notariat
social and the natural worlds, his practical endeavours and his
Defrénois, 1979), p. 296.
scientific achievements; the other is the reality of non-being,
4 C. Lévi-Strauss, The Naked Man, trans. J. Weightman and D.
awareness of which inseparably accompanies the sense of
Weightman (London, Cape, 1981), pp. 694-5.
being, since man has to live and struggle, think, believe and
above all, preserve his courage, although he can never at any
moment lose sight of the opposite certainty that he was not
present on earth in former times, that he will not always be in
the future and that, with his inevitable disappearance from the
surface of a planet which is itself doomed to die, his labours,
his sorrows, his joys, his hopes and his works will be as if they
never had existed, since no consciousness will survive to pre­
serve even the memory of these ephemeral phenomena, only a
few features of which, soon to be erased from the impassive
face of the earth, will remain as already cancelled evidence that
they once were, and were as nothing.4
There can be no certainty in these matters: if an invisible world
exists beyond the reflection of our own anguish, it must be so infi­
nitely different from our worldly perceptions of it that it is largely
inaccessible to us. However, the risk that Lévi-Strauss’s descrip­
tion is correct is serious in its consequences. Most societies have
attempted to sidestep it. Only exceptional beings could hope to
have the courage recommended by Lévi-Strauss to face it. Either
death is concealed (this is what we do), or there is a belief in the

Index
Abel, R.L., 72,83,85,97
Abensour, M., 16,288
Aberle, D.F., 200,245
Abkhaze, the, 277
Aborigines, Australian, 36,331
absenteeism, 240
absolute monarchy, 43,48-9,76-7
absolutes, legal, 295-6
abstraction, 27-8, 38, 165,170,
174,306
acculturation, legal, 83,90, 100-1,
151,278,291-319
historical framework, 146
Adamson-Hoebel, E., 12,34-6,47,
72, 84,229
Adat Law School, 47,48,86-7
Adler, A., 288
adoption, 61,195-6
adultery, 212,281
Africa, 28,96-7, 109
abstraction, 165
Belgian school, 87
codification, 309,311-14
communal model and the
individual, 174
control and relationships, 161-2
customs, 70,308
dominating and dominated
groups, 314-17
evolutionism, 67-8
French legal anthropology,
89-90,93-5
legal pluralism, 43,74,77-9,
332
prehistoric societies, 106
property and ownership,
216-17,219,222
received and indigenous law, 62
research into diversity, 151
sources of law, 157-61
traditional societies, 191,193,
198,212-14
vengeance, 278
see also sub-Saharan Africa
Afrique Equatoriale Française
(AEF), 308
Agboyibor, Y., 254
age, 61,143,166,211,268-9
Age, Male Moyen, 249
aggression, 256,260
Agondjo-Okawe, P.-L., 177-8
agriculture, 22,106-7,212
see also farming
aid, 82,241
AIDS, 293
Alaska, 270
Alinski (American writer), 256
allegations, truth of, 266
allegory, 140-1
Alliot, A. & Woodman, G.R., 82
Alliot, M., 3,7, 14,89-94, 113,
116-17,127-31,149,177,319
communal model, 172-3,179
filiation systems, 188
further reading, 287, 325,326,
327,329
inheritance, 250
legal acculturation, 292-3,296
legal pluralism, 43,77-8
methods of regulation, 143
Allot, A.N., 82,83,231,325 Bachelet, M., 323
Amahuaca Indians, 25 Bachofen, J.J., 21-3,25,33
America see Canada; Central Baerend, E., 100
America; North America; Balandier, G., 15,48,178
South America; USA Bambara, the, 213,214
Amerindians, 82,151 Bantu, the, 141,193
Ammassalik, 271 Baoule, the, 214
Amselec, P., 14—15 Barotse, the, 145
ancestors, 121,154,160-3,168,188, Barret-Kriegel, B., 42,43,76
198-9,216 Basa, the, 155
communal model, 172 Bastide, R., 320
Andaman, the, 181,212 Bauman, R.A., 75
anthropomorphic accounts, 140-1 Bazin, & Terray, E., 288
anthropology, legal, definition of, 104 Beattie, J., 7
appeals, 165 Bedouin, the, 260-1,275-6,300,331
applied legal anthropology, 32-3 behaviour, 110-11,117-18,120-1,
164,303-4,329
Arab societies, 209
models, 145
Arabia, 300
observation of, 142-3
Arapesh, the, 202
arbitration, 165-9,230,257,265-6, pathological, 37
276 research developments, 64
archives, 140 Bekombo, M., 290
Arctic peoples, 90 Belgian Congo, 87
Arianism, 76 Belgium, 87,96
Aristotle, 20,44,115-16 beliefs, 104, 111, 118,121
Arnaud, A.-J., 7,12,14,74,84,98 direction of history, 331
Ashanti, the, 193,212,214,222, elementary social structures, 165
242-3 individuals and communal
Assam, 212 model, 174
Assier-Andrieu, L., 178 juridicization theory, 129-30
assimilation, 88,297 methodology, 144
Athens, 105, 281 relationships and control, 162
Atias, C., 14,98,115 sources of African law, 157
Auge, M., 248 vengeance and punishment, 124,
Australia, 36,96,107,206-7,209,331 275
Austria, 96 Bell, J.G. et al, 244
authoritarian law, 125-6 Bellagio, 81
Auzias, J.-M., 7 Bellay, J.-G., 56,72,74,123
avoidance, 271-2 Benin, 315
Azande, the, 202 Bergson, 27
Aztecs, the, 39 Bernhoeft, F., 28
Beti, the, 274
Baade, H.W., 85 Bible, 143,181
Babylon, 291 Biebuyck, D., 87,251
 338 Legal Anthropology Index 339

bilateral negotiation, 266,270,274 Carbonnier, J,, 5,116,118,120-1, legal sanctions, 240-1 Comte, Auguste, 111-12
bilineality, 60-1, 192,196,201 246,293 securities, 241 Conac, G., 325-6
Binet, J., 250 existence of evil, 333 Clastres, P., 16,35, 109, 110,293 conciliation, 165, 168-9,230,257
Birwa, the, 231,253 legal pluralism, 58-9,75 co-operation, 235-6,240, 301-2 concubinage, 293
Blakenburg, E., Klausa, E. & multiple options, 46 codification, 48-9,75,88, 101-2, Condillac, 27
Rottleethner, H., 85 Caribou, the, 271 111, 309-10 conferrals, 166
blood and honour, 275-7 Carneiro, R.-L., 24,34,67 research developments, 64 confessions, 269
Boas, Franz, 24,31,70 case-method, 37,71-2 see also Civil Code confiscation of goods, 162
Bodin, J., 294 caste, 155,166 coercion, 110 conflict, 48,71-2,167-8
Bohannan, P.J., 71, 86, 117, 122-3, Catholicism, 76 cognatic filiation, 196 see also disputes
144-5, 288 Caucasus, 277 Cohn, G., 28 confrontation, 270,271
English-speaking tradition, 84 celibacy, 211 collective ownership, 218-19 Confucian thought, 39,200
necessity and reality of conflict, Celts, the, 222 colonialism, 32,50-1,75-6,82-3 Congo, 300
37-8 Central America, 96 evolutionist theory, 67-8 conlialism, 299-308
& Dalton, G., 253 Cerulli, 33 French legal anthropology, 88, Connison, I., 69
Boissevan, J., 86 Chabas, J., 328 90-1 consent, mutual, 46
Bolke, 48 Chad, 261,275 introduction of state law, 179-80 Constantine, 275
Bonfante, P., 29,89 Chagga, the, 54,242 legal acculturation, 299,302,308 Constantinesco, J.L., 144
Bonjean, C., 245 chaos, 153 normative analysis, 38 continuity, 77,165
Bonte, P., 198 Charbonier, G., 177 settlement of disputes, 269,272 contracts, 124,151,166,228-44
Bossuet, 76 Chevalier, J., 14,64 status model, 229 control, 110,155-6,161-3,295
Botswana, 86,96,231,253 Chiba, M., 11,60,74-5 traditional law, 314 corporal punishment, 168,240,270,
Bourdieu, P., 64,321 chiefdoms, 90,128-9,226-7 unity and myth, 44 303-4
boxing contests, 262 children, status of, 213-14 Colucci, 32-3 corpse, interrogation of, 267
Braun, P., 6 China, 39,62,200,209,310 Comae, 9,325,326 Corsica, 277-8
Brazil, 96, 278 Christianity, 45,76,127,174,272 Comanche Indians, 39 Cosa Nostra, the, 53
Brillon, Y., 287 see also religion Comaroff, J.-L., 41,72 Costa, J., 22,66
brokerage contracts, 241 city-states, 105-8 Commercial Code, 311 Costa-Lascoux, J., 328
Burdeau, G., 15 civic morality and religion, 128 commercial contracts, 50 costs, legal, 119-20
burgess (bourgeois) law, 45 Civil Code, 42,45,112-13,220-2, commercial expedition, 235-6 Council of Nicaea, 76
Burgiere, A. et al, 11,175,244,248 317-19 commercial law, 45 Courtois, G., 93
burial goods, 106-7 language and impartiality, 64 Commission on Folk-Law and courts, 168,301-2
Burkino-Faso, 316 legal acculturation, 296-7 Legal Pluralism, 87,96 creation, 153-5,157
Burma, 207-8 legal pluralism, 58 common law, 38,44,82 Cree Indians, 302
Burman, S. & Harrell-Bond, B., 85 civil responsibility, 239 common law marriages, 293 Cresswell, R., 7,11,200,245
Burnett Tyler, E., 68 civil wrongs, 239 communal life, 69,169 & Godelier, M., 149
Buulan, F., 256 civilian law, 38,70-1,316-17 model, 154,171-7,233-4 criminal behaviour, 239,280,303-4
clans, 47,189-96,190,196,218,265 possessions, 236 crimes of passion, 120
Calabria, 275 Clark, L., 67 communication, 139-40,159,170 criminals, legal system of coterie, 53
Cameroon, 115,173,261,277 classical antiquity see Greece; Rome communication, 159, see also Crow, the, 187,201
Canada, 61,82,83,96,97 classification, 28,159,315 language; spoken word Cuisenier, J. & Segalen, M., 7
canon law, 45,55 contracts, 234-7 comparative principles, basic, 145-7 currency, 237,315
capital punishment, 270 customs, 306-8 compensation, 162,241,265,270, curses, 161
caravan contracts, 241 dispute settlement, 264 276, 279 customs, 44,88,94,110-11,159-61
340 Legal Anthropology
customary law, 55,79,126,165,
169,314-15
dominance, 314
French official transcription, 76
institutionalization, 123
reasons for obedience, 120
reinterpretation, 305-6
social structure, 166-7,169,264,266
Cuzco, 110
D’Aguanno, G., 29
damages, 239,265
Darwinian theory, 25,67
dations, 230-1
David, R., 76,323,328
Davie, M.R., 288
Davis, F.J., 122
Davy, G., 69
defacto appropriation, 222-3
dejure appropriation, 222-3
de Zuluete, F., 44
de-pluralization, 52-3
death, 154, 198,213,216,271
control over, 155-6
existence of, 333
death penalty, abolition of, 280
Debbasch, R., 76,77, 80
Decheix, P., 323, 328
decisions, 72-3, 163, 173-4
defiance, 313-14
Degni-Segui, R, 313, 323-4, 328
Delavignette, R., 307-8, 321
délit, 239
Delmas-Marty, M., 282
democracy, 43,229, 280
Denmark, 61,96
depersonalization, 170
development law, 311
Diamond, A.S., 12,28
dictatorship, 43
Diocletian, 44
Diop, Cheik Anta, 67
diplomatic immunity, 50
discontinuity, 77
discourse, 104,129-30
dispersion, 260
disputes, 72-3,107-8, 111, 151,
160-1,255-83
characteristics of law, 164-6
customs and institutions, 123
mediation, 112
non-contentious settlement, 113
processes and processings, 85
spoken word, 140
status and contract, 124
Verdier’s work, 93
distribution of produce, 225-6
district assemblies, 276
district attorneys, 280
Divale, T. et al, 288
divination, 267,269
divine right, theory of, 76
divinities, 154,172,188,216
see also God
divinity, 60-1,69,140,154
see also God; gods; religion
divisions, legal, 154
divorce, 46, 213, 304
Dogon, the, 155, 157-8, 162-3
attitudes to land, 216-17
communication, 139-40
settlement of disputes, 266
social structure, 167
Domat, 196,244
dominating groups, 314—17
donations, 166
Dorsinfang-Smets, A., 253-4
double aveu, 46
double institutionalization, 123
dowries, 154-5, 162,211,213,242,
279
Driver & Massey, 200-1
droit de l’etat, 42-4
droit des gens, 62
Droit et Cultures Centre, 90,94-5
droitpersonnel, 242
droit reel, 217,242
droit vulgaire, 44—5, 82
Index 341
dual stratification, 165 ethnology, 88-9,104
Duala, the, 173 Europe, 62,67-8,70,97,107,111-12
Duby, G., 249 number and origin of
& Aries, P., 249 researchers, 96
Duchat, M., 7 prehistory, 107
Duguit (French writer), 98 see also Belgium; Eastern
Dumézil, G., 112 Europe; Germany; Greece;
Dupre, M.-C., 290 Ireland; Italy; Netherlands;
Durkheim, 30,68-70,228,229 UK
dynamic anthropology, 48 euthanasia, 292
Evans-Pritchard, E., 8,250
East, 28,61,78-9,96,171 evidence, 165,266,268-9
see also China; Far East; India; evil, 116,332-3
Indonesia; Japan; Malawi; evolutionism, 24-36,67-8,88,125,
Malaysia; Melanesia; Middle 332
East; Tibet excessive vengeance, 277
ecclesiastic jurisdiction, 56 exchange, 109,123-5,235
economic factors, 109,128,166,180, vengeance, 277-8
315 of wives, 206-9
contractual obligations, 232,237 exclusion, temporary, 260
cultural differences, 33—4 exogamy, 61
kinship ties, 200-1,205-6 exotic elements, 110,113-14
education, 120-1,156 extended families, 108,266
Egypt, 62,78,96,295,297
Falk Moore, S., 51,54-7,74-5,80,
Ehrlich (sociologist), 48,50,57,74,
149
86
elasticity, 238 Fallers, 40
Elias, T.D., 234 families, 61,108,120,165-6,169,
employment, 113-14 235
Engels, Friedrich, 25,66-7 collective ownership, 218
English-speaking countries and extended, 108,206
traditions, 61,82-8,97, 100 history of Western, 249-50
epics, 140 immigrant, 58
epistemology, 3,99 interband relationships, 53
Epstein, A., 231, 287 prehistory, 250
equity, 60-1 seasonal groups, 69
Eskimo, the, 5,186-7 see also clans; kinship
see also Innuit, the Fang, the, 164
ethics of vengeance, 274 Far East, 96
Ethiopia, 96,276, 318 farming, 235,241, 259-60,271
ethnic minorities, 56, 82-3 Fauconnet, P., 69
ethnocentricism, 63, 88,91, 137, 145 Feifer, G., 71
ethnography, 104 Ferguson, Adam, 27
 342 Legal Anthropology
feudalism, 27,45,108-9,165,282
ancient China, 310
land, 220
Fiji, 271,272
filiation, 146,188-201,205
films, 9-10
finance, obtaining, 139
Finland, 96
Firth, R., 71
Fitzpatrick, P., 83,100
folk law, 62,88
formal contracts, 236-7
Fox, J., 69
Fox, R., 203,245
France, 4-5,110,121,208,220-2,
249
codification, 42,45,48-9,58,
297,310
legal anthropology, 33,82,
88-93,96,98-101
legal pluralism, 42-5,48-9,58
marriage contracts, 231
punishment and vengeance, 280,
282
sub-Saharan Africa, 91
transcription and classification
of customs, 70,76-7,306
Franciosi, G., 249
fraudulent description, 241
Frazer, Sir James, 33,36
French Revolution, 77
friendly societies, 46
Froelich, J.-C., 320
Fuchs, M., 323
functionalism, 24,36-7,46-7, 147
Furnivall (economist), 47
Gabon, 115, 167-8,300,316
Gaius, 44
Galtung (American writer), 256
Gamo, the, 276
Garo, the, 212
Gast, M., 250
Gatti-Montain, J., 98
Gaudemet, J., 249,319,321,326
gender, 189-96,209-11,269
see also women
“gentes”, 27
Geny (French writer), 98
Germany, 28,70,82,96,100
Nazi, 32,209
Gemet, L., 69
Ghai, Y.P., 253
Ghana, 96, 193,212,222
ghost marriages, 213,304
gifts, 230-1,242
Gilissen, J., 56,74
Gilssen,J., 10
Girard, R., 272
Gluckman, M., 12,38-40,47,83-6,
113,149,231,287
universality of legal criteria,
144-5
goals, 163
God, 127,169,172,174
person-to-God relationships,
162-5
sanctity of power, 120
swearing of oaths, 268
Godelier, M., 7-9,83, 149,205,
245-7,250,301
gods, 154, 172,188,216
Gonidex, P.F., 328
Goodenough, W.H., 75
goods, 162,231-2,279
goodwill, lack of, 240
Goody, J., 170,249
Gouron, A., 328
Graebner, Fritz, 31
Granet, M., 69
grave goods, 107
Great Britain, 83,96, 100
Greece, 69-70, 105-6, 117, 172,281
legal acculturation, 291-2,295,
297, 306
Greenland, 61,262,271,272
Griaule, M., 9,88-9
Griffiths, J., 51,53,55-9,72,74,80,
100
Adat Law School, 86-7
Guatemala, 48
Guiart, J., 90,148-9
guilt, 168
Guinea, 300
Gulliver, P.M., 74-5,84
Gurvitch, G., 48-50,69,74-5,86
Gusii, the, 213
half-castes, 302
Hammurabi, 291-2
Hamnet, I., 83-4
hard labour, 282
Haudricourt, A., 200
Hauriou (French writer), 98
Hawaii, 196-7,201
Hazda, the, 260
Hebrew law, 158
Hebrew god, 127
Hicks, S.C., 75
hierarchies, 51,143,172,184
Hilaire, J., 320,326
Hilse Dwyer, D., 72
Hindu law, 61,62
history, 64,66,93,104-8
comparative framework, 146
direction of, 331-2
role of change, 101
unilinear evolutionist theory,
33-4,63
Hobbes, Thomas, 172,228
Hoebel, E. Adamson see Adamson-
Hoebel, E.
Hogbin, 71
Hogon Dogon, the, 158
Holland see Netherlands
Holleman, J.F., 72
Hong Kong, 96
Honigmann, J.J., 7,11,67
honour, 275-7
horticulture, 34,271
Hulotaert (missionary), 110
Hungary, 96
In dex 343
hunter-gatherers, 106-7,225,256,
259-60
hunting, 54,212
Huvelin, P., 69,228
ideal order, 153-5,161-3
Iglulik, the, 271
Ik, the, 278
immigrants, 58, 155-6
inflagrante delicto, 268
inalienable ownership, 219
Incas, the, 110
incest, 202-6,215,281,293
incorporation, 301-2
India, 61,78,96, 193, 201,209-10
indigenous view, 86
individuals, 49-50,124,169,174,
315
control, 155-6
ownership, 218
Indonesia, 47,48,82,86,96,151,
193
infanticide, 238
“informal justice”, 85
Ingber, L., 50
inheritance, 113-4,196-9
initiation ceremonies, 269
injunctions, 168
injury, 239,241,265, 273, 275
return of, 274
institutionalization, 123
institutions, analysis of, 141-3
instrumental proof, 269
insurance, 113-4
intentional actions, 239
internal conflict, 255
international jurisdictions, 169
International Union of
Anthropological and
Ethnological Sciences
(IUAES), 62
interstate law, 169
Inuit Nunamiut, the, 270
 344 Legal Anthropology Index 345

Inuit, the, 31,34-5,117,160,179 Kalahari desert, 86,260 contractual agreements, 236 Levy-Bruhl, H., 8,27,50, 69, 88-91,
legal acculturation, 298,302 Kalongo-Mbikayi, 325 impartiality, 64 101, 266
legal pluralism, 53,61 Kapauka, the, 53,229 vocabulary of vengeance, 274 lignees, 189-96
political authority, 109 “Kariera”, 206-7 Western vocabulary, 145 Lille, city of, 119
settlement of disputes, 260-2, Karivondo, the, 265 see also English-speaking lineages, 146, 189-96,219,227,
270-2 Kenya, 85,167 countries 249-52
invisible world, 154,233,236, Khasi, the, 212 Lapierre, J.W., 16, 35,110 Lingat, 90
267-8,268-9 Kikuyu, the, 167,210 Lautmann, R. et al, 13 Little, 48
Iran, 62 kinship, 45-6,140, 146-7, 151 law, livestock, 198,233-4,241
Ireland, 222 blood representatives, 277-8 definitions of, 103-4,119 Llewellyn, 47
Iroquis, the, 187 person to God relationship, 162 field of, 114-31 Ind, the, 233
Islam, 62,78-9,90,127 settlement of disputes, 266, Law of the XII tables, 39 local law, 315-16
immigrants, 58 277-8 Le Roy, E., 3,14-15,72,83-4,90-2, Locke, John, 228
legal acculturation, 300-1, 310, social structures, 165-6,169 99,101, 115, 175-9 Louis, XIV, 43
314 traditional societies, 181-216, classification of social structure, Lowie, Robert, 24
sources of law, 158 231-4,243 264 Lowiili, the, 214
women, 271 see also clans; families complexity of relationships, 163 Lucien, 27,69
written proof, 269 Kiowa Indians, 253 legal acculturation, 311,315-16,
Israel, 96 Koesnoe, M., 88 323-4, 328, 329 MacCallum, S., 71
Italy, 32, 82,95,96 Kohler, J., 28,100 legal regulation, 143 McLennan, J.F., 21,22-3
IMS, 105 Koran, 158,269 macro comparisons, 144—5
traditional societies, 218,223-6,
ius gentium, 298-9 Kourouma, A., 9 230-1,233-4,239 Madagascar, 191,318
Ivory Coast, 307-8,316-17 Koussaigan, G.A., 251
& Le Bris, E., 252 Maengue, the, 278
Kung, the, 260 magic, 269
& Wane, M., 178,323
Jackson, B.S., 92 Kuper, L., 74,81 Lebeuf, J.-P., 148 Mahoney, N., 231-2,253
Jacobson, G, 6 & Smith, M.G., 74,81
Jale, the, 271,272 legal absolutes, 295-6 Maille, M., 58, 59
James Bay Convention, 302 Laboratoire d’anthropoligie legal pluralism see pluralism Mailu, the, 70
Japan, 61-2, 78-9, 96 “legal rigour”, 64 Maine, Sir Henry James Summer,
juridique de Paris (LAJP),
Jeddah, 271-2 90-4,100-1,122,127-31, Legendre, P., 120,250 21,25,33-4,124, 228-9,253
Jordan, 276 223-6 legends, 140 Malauri, J., 9
judgement, 48, 111, 168,266 Labouret (French colonial governor), legislators, 105 Malawi, 96
God’s, 267 89 Leiden, 87 Malaysia, 96
judges, 105, 168,257,304 Labrador, 117 Lenclud, G., 113 male domination, 259
judicable procedures, 263-4 Laburthe-Tolra, P., 9 Lenin, Vladimir, 6 Malekite, the, 300
justice, 114-17,121,167-9, 315 Lafond,M., 11,90 l’etat de droit (rule of law), 42-4 Malengreau, G., 87
natural, 19-20 Lambert, J.-N., 14 “levels of law” (Pospisil), 53-4 Mali, 79,167,300
Lampe, E.J., 12-13,246 Lévi-Strauss, C., 6,15,28,91-3, Malinowski, B., 24,36,40,47,70-2,
justification, 140 land, 220, 223-7, 233,235,243,260, 101-2, 140, 146, 176-7, 244, 120,123
Justinian, 310,322 311 249 Malta, 86
rental contracts, 241 metaphysics, 331, 333-5 Mao, Chairman, 210
Kabyle, the, 274 language, 86,119,138-40,159,165, traditional societies, 193-4, marriage, 36,45,61,128,145,147
Kachin, the, 207-8 236 202-3,205,215 ancient Rome, 50
Kaingang Indians, 278 communal model, 172 levirate, 213,246 common law, 293
346 Legal Anthropology
legal acculturation, 293,304
person to things relationship,
162
settlement of disputes, 269,277
stratification of law, 165-6
traditional societies, 198, 201-16,
231,235, 238,240,242-3
see also divorce; dowries
Marxism, 20,66-8, 83,138, 147
Maspero, H., 290
Maspetiol, R., 14
Massa, the, 261
Masset, C., 250
material evidence, 268
material goods, 180
material restitution, 241
material securities, 242
matrilineal systems, 22, 158, 192,
195
matrix method, 92
Maunier (professor of law), 89
Mauritania, 300
Mauss, M., 30,47,68-9, 88, 148,
228,253
Mazeaud, H.L. &J., 246,248
Mazeauds, the, 218
Mazzarella, 33
Mbuti, the, 257, 260-1
Mead, Margaret, 202
mediation, 48, 112,168, 265
medieval law, and pluralism, 57
Meiji period, 78
Meillassoux, 83
Melanesia, 28-33, 36,90, 193,204
Ménager, L.-R., 59,66-7, 105
Mercier, P., 7
Mesopotamia, 295
metaphor, 159
methodology, 28-33, 63, 92, 136-48
Mexico, 48
Mialle,M., 14,58,67, 118
Middle East, 62,96,271
Midi, France, 61
mime, 260-1
Minangkabau, the, 103
minors, 48,113
missionaries, 272
Mitteis (Romanist), 45
mockery, 260
Mommsen (Romanist), 22
monarchy, 43-5,76, 110,174,
249-50,282,306
absolute, 43,48-9,76-7
law amendment, 55
marriage, 204
royal jurisdictions, 56
royal lineage, 141
theory of divine right, 76
Mondarini Morelli, G., 12
Montesquieu, Charles de Secondât,
19-20,66-7
Montils les Tours, 76
Moore, W.E. & Sterling, J., 149
moral punishment, 168,240-1
morality, 27,70, 127-8, 157, 303-4
Morgan, L.H., 21,23,25,67, 183
Morin, E., 99
Morse, Bradford, W., 301,320
& Woodman, G.R., 74,327
Moses, 22
Motta, R., 6,66,69,93,95,253
Moundang, the, 275, 279,282
Moussey, the, 277
murder, 54,261, 274, 276-8,281
Murdock, G.P., 244
Murdock, GP, 184
Muslim sea Islam
mutilation, 270,303-4
mutual aid, 241
mutual consent (double aveu), 46
mutual exchange, 235
myth, 94,120, 140,155-61, 165-67,
169
attitudes to land, 216-17
communal model, 172
kinship ties, 181
legal acculturation, 295-6
settlement of disputes, 264,266,282
Nadder, L. & Todd Jr, H.F., 72
Nader, L., 74,84,85, 97
& Yngvesson, B., 10-11,74,85
Nader, L. et al, 10
Napoleon Bonaparte, 42,45,67, 88,
113, 307
Naroll (non-evolutionist), 34
native courts, 302
natural justice, 19-20
Nayar, the, 193,209
Nazis, the, 32
Ndembu, the, 257
Near East, 96
Negri, A., 28,66,70,95
neighbours, 241
neo-evolutionism, 34-6,67
neo-state law, 316-17
neolithic period, 107,108
Nepal, 210
Netherlands, 74,82,86-8,96-7,100
Neugroschel, J. & Moss, P., 248
New Guinea, 53,229,258,262,
270-1,278
New Zealand, 96
Niger, 96, 198,300
Nigeria, 196,262
Nijmegen, 87
Nkomi, the, 115, 167-8,266
nomadic societies, 259-61
non-formal contracts, 236-7
non-judicable procedures, 263
non-moveable property, 220
non-nation states, 48
normative analysis, 37-40,71-2
North America, 31, 100,107, 151,
257,281
see also Canada; USA
Northorn, F.S.C. & Livingston,
H.H., 253
Nuer, the, 210,213,214
Nunamiut, the, 53
Nyakyusa, 212
Nyamwezi, the, 278
Nyuaro, the, 212
In dex 347
oaths, 113,233,267-8
imprecatory, 161
obedience to law, 119-21
obligations, 125,228-34,240,243
contractual, 238-9
Oedipus complex, 202
official/non-official law, 60-2
Olawale Elias, T., 176-7,253
Omaha, the, 187
oral systems, 94, 140-1, 163,169-77,
188
contractual agreements, 236-7
discourse, 130
evidence, 269
settlement of disputes, 267
see also spoken word
ordeals, 267,269
Oriental societies see East
Ossetians, the, 277
ostracism, 270
Otterbein, C.S. & K.F., 257,259
Otto, J.M., 100
Ourliac, P., 328
& Gazzaniga, J.-L., 75
Ovid, 6
ownership, 154,218-19,234,260
pacts, 166
Pambon-Tchivounda, G., 329
Panikkar, R., 147,149
parental authority, 145
parenteles, 188-90,196
parking offences, 120
pastoralism, 34,233-5
pathological behaviour, 37
patrician law, 79-80
patrilineal system, 193-4,196
Pauwels, J., 87
penal systems, 70-1,255,272-83,
280,282
responsibility, 239
people, control of, 155-6
perceptions, 121
personal possessions, 234,237
348 Legal Anthropology Index 349

personal security, 241 Pospisil, L., 53-5,60,66,72-5,84, vengeance, 279 reversals, 308-19
personality, loss of, 154-5 113,253 purification, 270 Rhodesia, 145
personification, 141 criticism of Maine’s theory, 229 Purum, the, 209 Richard, G., 69
Peru, 25 and J. Griffiths, 55,57 Richardson, J., 253
Peul, the, 79,213 universal principles of law, 125-7 quasi-criminal actions, 239 ridicule, 160
phenomena, legal, 141-2 possessions, 220-1,235-6 Quebec, 302 rights, 61,266
Philippines, 96 Possoz, E., 87 rituals, 94,179,233,236-7,294-5
philosophy, legal, 99 Post, H.E., 29,32-3,100 Radcliffe-Brown, A.R., 38,47-8, contracts, 235
phratry, 196 Poumarede, J., 14 122,196,287 marriage rites, 212
Picardy, 317 Pound, Roscoe, 38 Raison, J.-P., 252 vengeance, 275
Pigmy, the, 212 power, sanctity of, 120 rape, 276,281 Roberts, S., 11,41,72,100,258,287
pigs, exchange of, 272 practices, 129,130 Rappaport, 258 Robespierre, Maximilien, 325
Plato, 20,76 Prairie Indians, 281 Rasmussen, K., 160,175 Rolin, H., 87
pluralism, legal, 42,46-60,73-9,86, pre-law, 69 ratification, contract, 236-7 Roman law, 42,70,75,82,174,176,
113, 125, 173-4 prehistory, 106-8,250 Ravis-Giordani, G., 249 236-7
Plutarch, 202 prejudices, 255 realism, 153-5, 164-5 decisions, 73
Poirier, J., 7-10,79,89-91,145,149, prison, 282 rebellions, 281 diversity and unitary myth, 44-5
250,266 prisoners of war, 154-5 recidivism, 53 Droit et Culture Centre, 93
legal acculturation, 321,324, privileges, 228 reciprocity, 70 evolutionist theory, 25,29,38
326-8 processual analysis, 27-8,36-8, recitation, 140 French legal anthropology, 89
Pokomy, D., 252 71-2 reconciliation, 270,271-2,276 legal acculturation, 291-2,296,
Poland, 96 produce, distribution of, 225-6 Redfield, Robert, 47,229,253,320 306
political, degrees of structure, 297 promiscuity, 22 referees, 276 normative analysis, 39
political factors, 140,162-3, 168, proof, instrumental, 269 reinterpretation, 297 securities, 242
172-3,205-6 property, 88, 151, 162, 166,180,196, relationships, 161-5,169,271-2 settlement of disputes, 268
authority, 166,231,257, 266 216-27,243 contract ratification, 236 Romanian law, 95
centralisation, 77 pre-colonial framework, 218-21 criminals and crime, 280 Rome, 44,79-80,108,147,202,293,
contracts, 235 restrictive characteristics of friends and families, 293 298-9
divisions, 154 rights, 219 interband, 53 Rostand, 333
pacts, 166 Protagoras, 19 married partners, 211-12 Rouch, J., 9-10
power, 166,266,282,310 protection, 235,293 received and indiginous law, 61-2 Rouland, N., 9,11,71-6,84,93,246,
unity, 77 provenance of law, 61 securities, 241-2 320,328
political science, 35 proverbs, 140,179 religion, 44,70, 127-8, 153-5, Roume doctrine, 307
Poly, J.-P., 93 proxy mothers, 293 158-9,172 Rousseau, Jean Jacques, 228
polyandry, 210 psychological sanctions, 80 ecclesiastic jurisdiction, 56 Roy, G, 153
polygamy, 195-6,209-10,238,259, psychological tendencies, 120 religious contracts, 235 royal judges, 306
304 public disapprobation, 168 rules, 157 royalty see monarchy
Polynesia, 213 public prosecutors, 280 Remotti, F., 12 rule of law (l’etat de droit), 42
Popper, Karl, 64 Puerto Rico, 96 Remy, R., 98 rules, 127-8,157
popular law, 315,316 punishment, 124,168,272,279-83 reparation, 270 sacrifices, 233, 235,242,270,276
population density, 105 avoidance of, 121 research, 96, 136,137-9 animal, 235-6,279
Portalis, 310,322,325 classification of legal sanctions, residence, 46,147, 160,162 human, 106
Portugal, 82,96 240-1 responsibilities, 228,239-40 Sahlins, M.D., 109,231,293
350 Legal Anthropology Index 351

St. Thomas, 20 settlement of disputes, 167-8, Strijbosch, A.K., 88 third party intervention, 257
satirical songs, 271 256,264 Strijbosch, F., 12,74, 86-8, 100 threefold stratification, 166
Saudi Arabia, 271 socio-economic change, 238 Strijbosch, J.M., 88 thumping sessions, 262
Savigny, F.K. von, 67 traditional societies, 108-11,230, structuralism, 63,63-6, 84,92 Thurnwald, R., 12, 32,95
Schapera, L, 71-2,84 237-8 sub-Saharan Africa, 5, 82, 151, 157, Tibet, 210
Schmidt, 31 socialization, 140-1 179,267 time, 27, 139,155-6, 162,294-5
Schnur, Roman, 76 socio-psychological sanctions, 260 communal model, 172,175 Tiv, the, 156,261
Schoepf, G., 6 sociology, legal, 49-50 legal acculturation, 292, Toda, the, 210
School of Laws, 310 Sohier, A., 87 298-308,311 Togo, 86
Schott, R., 13,95 Somalia, 32 traditional societies, 181,191, Tonga, the, 212
seasonal influence, 69 Sonrha Empire, 79 223-6,227,229, 232 totalitarianism, 52
secularization of law, 129 sorcerers, 267 submission, 296 Touareg Kel Gress, the, 198
securities, 241-3 South Africa, 47-8 Sudan, 187,210,212 Touareg, the, 22,201,212
Segalen, V., 9 South America, 96 Sumatra, 73 Toucouleur, the, 173
segmentation, 196 South Pacific, 271 Sumerian law, 171 traditional law, 79, 153-80,314
Seidman, R.B., 119-20 South-East Asian societies, 193 summer law, 69 traditional societies, 71,128-9,
seigneurial jurisdiction, 56 Soviet law, 171 supernatural forces, 121 181-254
semi-autonomous social fields, 54-5 space, control over, 155-6,162 Swazi, the, 212-13 training contracts, 236
semi-complex societies, 266 Spain, 82 Switzerland, 96 transcendent evidence, 267-8
semi-elementary societies, 265 specialization, 105, 107, 165 symbols, 22 transfer of law, 292-9
Seneca, 281 Spencer, H., 34,68 Szabu, D., 256 Treaty of Versailles, 32
Senegal, 83,96, 115,167-8,174, 300, Spinoza, 272 tribal courts, 88,302
315-16 spoken word, 139-40 taboos, 6,271 tribunals, 168-9
seniority in family law, 61 states, 15-16,80,105-11,179,309 Taft (American writer), 256 Trimbom, 31
sentences, 270 and criminal coterie, 53 tales, 140 Trobriand Is, 36,70,193,262
Serere, the, 198 existence of law, 80 talismans, 269 Tswana, the, 213
services, 231-2 law, 42-4,48,55-6,64,169,179, Tanzania, 54,96,242,260,265,318 Turnbull, 278
socially determined, 237-8 316-17 Tarde, 120 Twana, the, 212
shame, 260 sovereignty of, 77 Tchouktche, the, 204 Tylor, E. Burnett, 34,68
Shoshone, the, 193 status, 124,141,227-9,295,303 teaching, 97 typologies, general, 122
Shreiner, A., 100 children, 213-14 Ter Haar, B., 88
Siberia, 204 hierarchy, 155-6 terminology, in kinship, 182-7 UK, 83,96,100
singing contests, 261 of individuals, 295 Terray, E., 83 uncertainty, 308-19
Sierra Leone, 48 single adults, 210-11 Terre, F., 118 undifferentiated filiation, 196,201
slaves, 155-6 testimony, 269 territorial organization, 166 uniformity, 77,332
Snyder, F.G., 72,83-4,97,100 things and property, 154,221-2 testimony, 269 unilineal theory, 26-8,33-6,193, 201
social anthropology, 23-4 women, 212 Thailand, 62 unintentional actions, 239
social contracts, 235 Steward, J.H., 34 theories, unity, 76-7,113
social sciences, 82,85 stories, 140-1,179 cross-cultural, 121-31 universal concepts, 125-7,145
social structures, 69,139-44,154-6, Stoufflet, J., 328 evolutionist, 24—32 USA, 42,68,82-3,85,96-7,193
161,165-9 stratification of law, 163,165-7 functionalism, 24,36-7,46-7,147 tribal courts, 302
legal acculturation, 315 St. Luke, 76 thieves, 260
prehistory, 106 St. Thomas, 76 things, 145, 154, 161-2, 164-5,236 values, 111, 129-30, 144,157,162,
semi-autonomous fields, 51,54-6 Strijbosch, A., 86 formation of contract, 235 274
 352 Legal Anthropology

legal acculturation, 294-6, 307 Von Benda-Beckmann, K., 73,74,87

Van den Bergh, G., 75,86 Vulcanescu, R., 13
Van den Berghe, P.L., 51, 81 vulgar law, 75
Van den Steenhoven, G., 62,86,122
Van Houtte, J., 87
Van Lier, 48 wars, private, 27
Weber, Max, 80
Van Rouveroy van Nieuwaal, E., 86,
100 Weightman, J., 177
Van Velzen, T. & Van Wetering, Weill, A., 118
W., 288 West, 4-5,90, 101,145,295
Van Vollenhoven, 47,48, 50, 86 matrilineal descent, 146
Vanderlinden, J., 50,52,56,74,79-80 unitary system of law, 61
Adat Law School, 87-8 see also Canada; Europe; North
Vanderlinden, J., legal America; USA
acculturation, 306, 321, 326 West Africa, 300
vendetta, 277-8 West Indies, 48
Venezuela, 96
West Sumatra, 88
vengeance, 255,259, 261-3,270,
widows, 213
272,293
codes and rituals of, 275 Wilkinson, P.J., 290
Droit et Cultures Centre, 93-4 winter law, 69
status and contract, 124 witnesses, 236,268-9
Verdier, R., 13,69,93-5, 123-5, Wolof, the, 115,167-8,174
177-9, 198, 250,254,290, 323, women, 79,82, 140,212-3,250
328 emancipation of, 67
inalienable ownership, 219 Muslim, 271
land chiefs, 226 New York fashion world, 54
securities, 241 workers, English-speaking, 86
theory of exchange, 274-7 writing, 169,269
vindicatory systems, 272-3,279, written proof, 269
387
Yako, the, 196
& Rochegude, A., 252, 323
Vico, Giovanni, 27 yous, 105
Villey, M., 20,67
vindicatory systems, 255,272-83 Zaire, 300,318
violence, 255-61,272 Zambia, 96,212,257
Voltaire, Francois, 27,45 Zonabend, F, 244-5
Von Benda-Beckmann, F., 12,83, Zulu, the, 213
86, 88, 100 Zuni, the, 257