LAW AND THE STUDY OF SOCIAL CONTROL IN SMALL‐SCALE SOCIETIES*
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01478.x |
| Published date | 01 November 1976 |
| Date | 01 November 1976 |
LAW
AND
THE
STUDY
OF
SOCIAL
CONTROL
IN
SMALL-SCALE SOCIETIES
*
STUDIES
of the ways in which order is maintained and disputes are
settled in small-scale
societies
may be placed in
two
classes: one
formed
of
work which finds
a
theoretical basis in western juris-
prudence; and another
of
that which disregards, or even explicitly
rejects, this source of inspiration. Work falling into the first category
can
be
traced
back
as
far
as
Maine? and
has
continued to appear
ever
since;
but doubts about the value
of
this line
of
attack can be
detected in Mahowski’s writings
of
the
1920s
and
a
strong body
of
scholarship has since developed which owes little
to,
and is in places
openly critical
of,
work in the
“
legal
”
tradition. The growth
of
these
diverging
streams
of
research is probably familiar to most anthro-
pologists;
but less
so
to English lawyers who have generally shown
very little interest in the study
of
small-scale societies, possibly because
they have felt that experience in
such
unfamiliar surroundings could
offer little of value from the point
of
view
of
domestic research.
I
believe that this lack
of
enthusiasm is no longer
justified,
particularly
at a moment when the accepted
scope
of
legal scholarship is seen
to
extend beyond the exposition and criticism of doctrine. Accordingly,
this
article will
survey
briefly
two
direcltions along which the study
of
social control in small-scale societies has developed, and in doing
so
it will argue that those
studies
which owe least to
the
jurisprudence
of
common law and
civil
law countries have been the more successful
and, perhaps unexpectedly, have
more
to offer us in the pursuit
of
domestic legal research.
I
An initial link between anthropological
studies
of
social control and
legal theory was formed through the work
of
Maine.a
A
lawyer,
primarily concerned with the
origins
of
the English legal system
and influenced by contemporary evolutionary ideas, he turned for
his insights
to
those societies elsewhere
in
the world which seemed
to represent earlier
stages
along the
Same
line
of
development. His
studies were thus unashamedly “law centred,” being rooted
in
the
desire to know more about the development of this particular
institution
of
his
own
society, surrounding which a considerable body
~~
-
*
I
am grateful to
John
Comaroff, of Manchester University, and to my colleague
David SchilT for helpful criticisms
of
an earlier draft of
this
article.
1
This term
is
not precise, but
the
description
is
intended to cover thosc kinds
of
society, typically small
in
scale and
with
relatively simple governmental institutions
and technology, which anthropologists have gcnerally studied. The words
“
primitive,”
‘‘
preliterate,”
“
pre-industrial
”
or
even
”
tribal
”
might have been substituted but
all have acquired
in
one way or anothcr some connotation or specialised meaning
which makes them unsuitable.
2
Ancient
Law
(London,
1861);
Village-Communities in rhe East and West;
si.u
lectures delivered at Oxford
(London,
187
1).
663
664
THE
MODERN
LAW
REVIEW
[Vol.
39
of
theory had already developed. Subsequently, the very label
whereby studies in
this
area became known-“ primitive law
”-
indicates the close association with jurisprudence which was
maintained.
Later on,
as
other societies came to
be
studied for their own sake
rather than
as
an adjunct to the study
of
our
own
legal development,
the assumption that “law” ought to be one of the categories of
investigation was not immediately challenged. Early theorists of
social anthropology certainly did not hesitate to treat law
as
one of
the compartments into which their subject should properly be divided.
Furthermore, the definitions of law which they formulated for
cross-cultural purposes showed
a
strong institutional bias and close
compatibility with western legal systems. Rules, courts and organised
force-those conventional hallmarks of our own arrangements-
tended always to
be
prominent. Radcliffe-Brown, for example, wrote
of law
as
“.
.
,
the maintenance or establishment
of
social order,
within
a
territorial framework, by the organised exercise of coercive
authority through the use, or possibility of use of physical force.”
Similarly, Evans-Pritchard identified law with
a
situation where there
is
some “authority with power to adjudicate” and to “enforce
a
verdict.”
Attempts
at reaching
a
definition of law suitable for cross-cultural
purposes continue to
be
made, and persist in containing components
primarily applicable to our own system. Those
of
Hoebel and Pospisil
are prominent among them. Hoebel (apparently against Llewellyn’s
better judgment) committed himself to the view that
“
. . .
for work-
ing
purposes law may be defined in these terms:
A
social norm is
legal if its neglect or infraction is regularly met, in threat or in fact,
by
the application of physical force by an individual or group possess-
ing the socially recognized privilege of
so
acting.”
Pospisil sees law
as
“
principles abstracted from legal decisions
”
and insists that a
decision must have four essential “attributes”
if
it is to be con-
sidered legal
:
authority, intention
of
unhersd application;
obligutio;
and sanction.‘ Such attempts generated
a
large and rather arid litera-
ture which there is no need to consider further here; but its existence
is
important for
our
purposes in that it reveals
a
continuing deter-
mination to accommodate these studies within the framework
of
legal
theory.
Even where
no
explicit attempt at definition is made, propositions
repeatedly crop up in works of legal anthropology (again, the term
itself
is
significant) which betray the influence of western legal theory.
An example is provided by Fallers’ conclusion that law is only
present where there is some person or body with power to adjudicate
3
Prefaco
to
African Political Systems.
Eds.
Fortes
and Evans-Pritchard (Oxford,
1949), p. xiv.
4
The Nuer
(Oxford, 1940), p.
162.
5
Hocbel had apparently wanted
to
include
a
general definition of law in
The
Cheyenne Way,
but Llewellyn opposed this: see, Twining.
Karl Llewellyn and the
Realist Movement
(1973),
p.
178.
6
The
Law
of
Primitive Man
(Cambs.
Mass.,
1954).
p.
28.
7
Anthropology
of
Law
(New
York,
1971), pp. 39-96.
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