Anthropolo

gical
school

Hoebel
E. Adomson Hoebel has made a valuable contribution
to Sociology of Law through his book, The Law of
Primitive Man: A study in Comparative Legal
Dynamics.
In this book, he has discussed the nature of primitive
law and its relationship with Religion and Magic.
He also talks about four primary functions of law:
1) Defining Relationships:
- What acticivities are permitted and what are ruled out
so as to maintain the minimal integeration between
individual and society.

Hoebel
2) Taming the force and directing power to maintenance of
order:
- It is allocation of authority and the determination of who may
exercise physical coercion as a socially recognised
privilege-right, along with the selection of the most
effective forms of physical sanction to achieve the social
ends that the law serves.
3) The disposal of trouble cases as they arise, and
4) Redefining relations between individuals and groups as
conditions of life changes Duties, rights and powers:
- Purposive definition of personal relations is the primary lawjobs.

Hoebel
Other aspects of culture likewise work to this end, and,
indeed the law derives its working principles (jural
postulates) from postulates previously developed in the
non-legal spheres of action.
The important contribution of law to the basic
organisation of society as a whole is that the law
specifically and explicitly defines relations.
It sets the expectancies of man to man and group to
group so that each knows the focus and limitation of its
demand-rights on others.
Its duties to others, its privilege-rights and powers as
against others.

Hoebel
Its duties and liabilities to the contemplated or attempted
acts of others.
This is the bare-bones job(Karl Llewellyn).
It is ordering of the fundamentals of living together.
No culture has a specific starting point.
Look here! Lets have a little organisation here or we will
never get anywhere with this mess! Lets have a clear
understanding of whos who, what we are to do, and how
we are going to do it!.
In its essence it is what the social-contract theorists
recognised as the foundation of social order.

Hoebel
2)Taming of the force.
a)Allocation of authority to exercise coercive physical
force- is something almost peculiar to things legal.
- Customs have regularity, and so does law.
- Custom is sanctioned so is law but sanction of law
may involve physical coercion, if need be.
- Law has teeth that can bite.
- Biting can be done only by those persons whom
the law has allocated the previlleged rights.

Hoebel
In primitive society, authority is shifting and temporary.
The tendency is to allocate authority to the party who
is directly Injured.
In few cases, it has also been observed that in
primitive societies, authority is directly exercised by the
community on its own.
It takes the form of Lynch law but it is rare.
Power defined through allocation of legal authority is
by its nature trans-personalised, yet by the nature of
men it can never be wholly depersonalised.

Hoebel
3) Troubled cases:
In accordance with the pre-existing laws.
Clean-up cases, suppress or penalise the illegal
behaviour and get back to normalcy.
Doctor, Garage repair.
It is not ordinarily concerned with grand design
as in the first case nor it is concerned with redefining as in the fourth case.
4)

Hoebel
4) Redefining of Relations:
- New inventions, new ideas, new behaviours keep creeping
in.
- The process of trans-culturation takes place.
- Law is called upon to decide hat principles shall be applied to
conflict of claims rooted in disparate cultures.
- Do the new claims fit comfortably to the old postulate?
- Must the newly realized ways of behaving be wholly
rejected and legally suppressed because they are out of
harmony with old values?
- The old postulate be modified here and altered there to get
legal acceptance?

Hoebel
What is to be done?
Troubled cases generated by the new
ways keep marching in.
The fourth law-job presses for attention.
The relations are re-defined according to
the changes that have creep in.

Bohannan
Bohannan in The Differing Realms of Law
(1965) has criticised Malinowskis approach
being too undiscriminating between customary
law as a whole and law in particular.
According to him, law comes into being when
customary, reciprocal obligations further
becomes institutionalised and in such a way that
society continues to function on the basis of
rules.

Bohannan
Bohnnan criticise Malinowski by stating that, it is not
law that is kept in force by.reciprocity and
publicity. It is custom.
Law is rather, a body of binding obligations
regarded as right by one party and acknowledged
as the duty by the other.
It has been re-institutionalised within the legal
institutions so that society can continue to function
in an orderly manner on the basis of rules so
maintained.

Bohannan
Reciprocity is the basis of customs, but the law rests
on the basis of this double-institutionalisation.
Central in it is that some of the customs of the some
of the institutions of society are restated in such a way
that they can be applied by an institution designed
specifically for that purpose.
To understand double institutionalised norms or laws
is to break-up the law into smaller components,
capable of attaching to persons or groups and so to
work in terms of rights and their reciprocal duties or
obligations.

Bohannan
Bohannan says that for law to work there must
be:
1).A way of disengaging disputes from a particular
Institution and engaging them in a legal
institution.
- There must be specific ways in which difficulties
can be disengaged from the institutions in which
they aroseand which they now threaten and then
be engaged within the process of the legal
institution.

Bohannan
2). A framework for handling the dispute and coming to a
decision.
- There must be ways in which trouble can now be
handled within the framework of the legal institutions.
3). A way of re-engaging it into a previous non-legal
institution.
- There must be the ways in which the new solutions
which thus emerge can be re-engaged within the
processes of the non-legal institutions from which they
emerged.

Bohannan
A legal institution is one by means of which
the people of society settle disputes that
arise between one another and counteract
any gross and flagrant abuses of the rules
of atleast some of the other institution of
society.
There are two aspects of legal institutions
that are not shared with other institutions of
the society.

Bohannan
1) Legal institutions alone must have some regularised
way to interfere in the malfunctioning of the non-legal
institutions in order to disengage the trouble-case.
2) There must be two kinds of rules in the legal
institutions:
- Those that govern the activities of legal institutions itself
(procedural law).
- Those that substitutes or modifications or restatements
of the rules of the non-legal institutions that has been
invaded.(Substantive law).

Bohannan
Legal rights are the only those rights that attach to norms
that have been doubly institutionalised.
They provide a means for seeing the legal institutions
from the standpoint of the persons engaged in them.
Law is never a reflection of custom rather it is always out
of phase with society.
Indeed, more highly developed the legal institutions, the
greater the lack of phase, which not only results from the
constant re-orientation of the primary institutions, but
also is magnified by the very dynamic of the legal
institutions themselves.

Bohannan
Thus, it is the very nature of law, and its capacity to
do something about the primary social institutions,
that creates the lack of phase.
Moreover, even if one could assume perfect legal
institutionalisation, change within the primary
institutions would soon jar the system out of phase
again.
If there were ever to be perfect phase between law
and society, then society could never repair itself,
grow and change, flourish or wane.

Bohannan
It is the fertile dilemma of law that it must always
be out of step with society, but that people must
always attempt to reduce the lack of phase.
Customs must either grow to fit the law or it must
actively reject it.
Law must either grow to fit the custom, or it must
ignore or suppress it.
It is in these very interstices that social growth
and social decay take place.

Bohannan
Social catastrophe and social indignation are sources
of much law and resultant changes in custom.
With technical and moral change, new situations
appear that must be legalized.
Its application is somewhat different to developed and
to less developed legal system.
In developed legal system, legal level are traditionally
concentrated in political decision-making groups such
as legislature, non-legal social institutions sometimes
take very long time to catch up with the law.

Bohannan
On the other hand, in less developed legal
system, it may be that little or no popular
demand is made on the legal institutions
and therefore little real contact exists or
can be made to exist between them and
primary institutions.
Law can become one of the major
innovators of society, the more effective,
the greater peoples dependence on it.

Gluckman
Gluckman in The Judicial Process Among the
Barotse of Northern Rhodesia(1967) shows:
- that it is obedience which is contemplated, not
disobedience, in a society that rests on reciprocity
but also possess a mechanism to deal with
disputes.
- Such a society, he observed had developed the
reasonable man test quite independently of the
English judiciary.
- This assertion has given rise to much dispute.

Gluckman
Gluckman study identified the process of
dispute resolution for barotse as involving:
- Reconciliation rather than ordering of
sanctions.
- Sanctions, which will be applied only where
reconciliation has failed or it is not possible.
The obedience to the custom rested on the
reciprocity of services.

Gluckman

Reasonable man concept:

General phrase in Lozi is muttu yagana;
Muttu- person.
Yagana-mind, wisdom, intelligence, intellect, reason,
sense, commonsense.
An upright man embraces both sense and uprightness:
- The case of biased father.
Standards of upright man:
-Does not have mistress, but law only requires that a man
should not neglect his wife while he pursues mistresses
and allow him mistresses if they are not married to others.

Gluckman
The judgments are given on the behaviour of a person
occupying specific social position.
- A good husband.
- She is a wife.
- S/He is a child.
- The case of biased father.
- The man who helped his mother in-law cross a ford.
- The case of eloping wife: your father has no child.
- It is of sociological importance because it covers the
whole social process of judging people against norms.

The Second Approach

The First approach is to define law and then how
simple society fit into it.
The second approach was- to understand law, we
should set some boundaries for our studies.
We must decide which feature of simple society
we want to study.
Roberts in his book, Order and Dispute (1979)
suggests that the best framework is to look at
order the way order is preserved in the society
and how disputes are considered and solved.

The Second Approach

Freed from the corrupting influence of our ideas
and rules, courts and coercion, a more complete
and correct picture of primitive society can be
acquired without distortion.
This approach has found wide varieties between
societies.
Various factors push them into considering the
processes of society and how they affect the
individual and how he views them.

The Second Approach

Disputes are seen as a necessary part of
the society and are considered from a
longer term perspective.
Attempts to compromise, various forms of
outside intervention and how the society
returns to normal.
In some societies, discussion is not used
to settle disputes and force is.

The Second Approach

They help in gaining a better perspective
on law and ultimately answers the
question of how societies are controlled
and organizations are present in different
societies.
The two approaches are complementary.
We can learn not only about primitive law
but also about our present law.

The Second Approach

The wider perspective enables us to see that law
is not a product of modern society as primitive
society with wide variety of methods show us
that courts and strict laws are not the only way to
control society and deal with disputes.
Above all, the importance of negotiation and
concillation found in many studies helps to solve
the dispute in present time.