Clio@Themis

Revue électronique d'histoire du droit
15 | 2019

Droit et anthropologie (1)Law and Rationality: A HistoriographicalInvestigation of the Understanding of Motivationand Human Agency in Early Legal Anthropology
Kaius Tuori

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DOI: 10.35562/cliothemis.611
ISSN: 2105-0929
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Law and Rationality: A Historiographical Investigation of the Understanding o...

Law and Rationality: A
Historiographical Investigation of
the Understanding of Motivationand Human Agency in Early Legal
Anthropology
Kaius TuoriThis research has been supported by the Academy of Finland funded Centre of Excellence in Law,
Identity and the European Narratives, funding decision number 31 2154.

Introduction
1

The early history of legal anthropology is largely forgotten. The reason for this is thatearly legal anthropology operated mainly under the paradigm of legal primitivism
where all premodern societies were grouped together using theories of social
evolutionism. With the rejection of evolutionary theories in the social sciences, thisearly scholarship was discredited in the process. The modern scholarship on legal
anthropology is very much focused on the present and on the ethnographic methods ofparticipant observation. In contrast, early legal anthropology was almost exclusively afield of lawyers and historians seeking to understand the legal otherness. Nineteenthcentury pioneers like Henry Sumner Maine (1822-1888) or Albert Herman Post
(1839-1895) were first and foremost jurists who had encountered the realities of legal
difference in the colonial world and sought to make sense of the otherness. Theirprimary method was categorization and the making of distinctions between legal
institutions. These tools were founded on the belief that certain legal institutions were
universal and could be found in civilizations around the world that shared the samecharacteristics. Thus, things like blood revenge, communal ownership or forms ofmarriage were not purely legal facts but also ways of determining the nature of the

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culture and society. The methodological framework was securely Eurocentric. The
developmental patterns of Western or European legal history, beginningcounterintuitively from the Bible, moving onwards to the archaic Greeks and Romans
and from there to the tribes of the ancient and medieval worlds, formed the universal
pattern in which the course of civilization progressed. This civilizing process wasequally a legal process, where the development of law mirrored the development of
culture and society.
2

The way legal science adapted to this varied from the Enlightenment ideas to
Romanticism. The main theoretical input was the so-called Historical School led byFriedrich Carl von Savigny (1779-1861), which outlined the historical process of legal
development. It resisted ideas of legal reform, maintaining that law developedorganically and corresponded to the changes in society1. From this background, early
legal anthropology was created, and despite the fact that much of this had been
rejected, the legacy of the Historical School still continues in the ways that otherness in
law is understood.

3

The purpose of this article is to examine how nineteenth – and early twentieth-century
legal science conceptualized and dealt with otherness in law, taking examples of legal
phenomena such as ordeal and blood revenge to illustrate how the concept of legal
rationality evolved as a way to understand human agency. While the earliest legal
anthropology had held that indigenous communities, groups that were described asbarbarians or savages, were irrational and prone to violence, magic and superstition,
this conviction became the target of criticism in early anthropological scholarship,especially that based on fieldwork. During the course of investigations, scholars notedthat the irrational was sometimes less than irrational and that there was logic in theway indigenous legal customs operated.

4

Previous scholarship on early legal anthropology is fairly limited. Though there havebeen important works on legal anthropology and legal evolutionism 2, the way that theidea of legal rationality evolved in a mixture of law, history and anthropology during
the nineteenth and early twentieth centuries is still not adequately studied. This article
seeks to provide new insights on how, in the treatment of specific legal institutions, theideas of reason and rationality could change in rapid succession where ideas from
European medieval history could migrate to aid in the understanding of indigenous
cultures. In the early primitivistic scholarship, rationality was a Western or European
speciality and rational and logical thought was an essential part of the civilizing
process. In contrast, in the scholarship on law in action marked by functionalism, theidea of rationality was relativized and the logic and reason behind seemingly irrational
acts and thoughts was sought out.

5

The article begins with an analysis of how the theoretical framework on understanding
law changed and how the different approaches, internal and external, were used. It
follows how the innovations of legal realism, the early 20 th-century theory ofunderstanding law in action, led to a new way of seeing legal otherness. Through theanalysis of legal institutions and their treatment and the way that rationality was
understood, the article takes the examination to the contemporary discussions onrationality and civilization, exposing the primitivistic roots of popular conceptions
about indigenous legal cultures.

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I. Approaches to legal difference6

As a lawyer, historian and a pioneering social scientist, Max Weber (1864-1920) thought
extensively about the different approaches to law. In 1907, Weber distinguishedbetween two approaches to law in a famous parable about a game of cards in a Berlin
Kneipe or bar. At a corner table of this bar, some people were playing a game of cards topass the time, bantering and drinking beer. This event, when looked at with a social
scientific approach, is studied in its context, carefully recording what is said and how
many drinks were consumed and how the players interacted with each other and theother patrons of the establishment. The social scientist would hover close to the tableand observe the actions and interview the players and audience. However, when a legal
scholar studies the same event, he pays no attention to what happens at the table.
Instead, he orders a beer and takes his place at the bar, reading the rules of the game,learning what should happen and what could happen in the game 3.

7

From the nineteenth-century legal positivism onwards, most legal scholars knew that
law excluded many, many things from its considerations. That was simply how it wasmade to work, through the separation of legally relevant and irrelevant matters. What
the radical legal scholars called legal realists did was that they questioned theseseparations and the insularity of the system and exposed it to criticism from theoutside. This led to the analysis of the workings of law and society – in the sociology oflaw, legal anthropology and legal history – where the anthropological experience wasto have considerable practical use.

8

Weber’s examples highlight the classic division between the law in action and the law
in books and thus the legal and the social scientific approaches to law. In the treatment
of indigenous legal cultures, the situation is complicated by the fact that there are quite
often no written rules or only rules written down by the colonial powers. In addition tothis, there are other long-standing conventions about indigenous legal culture thatmark the way that lawyers reflect on indigenous law. To put it bluntly, it appears thatthe approaches of Western lawyers to indigenous law may be reduced to twoalternatives : legal universalism and particularistic legal pluralism. Universalism can be
described in this respect as the belief in basic human similarity and equality. Its
practical application in colonial settings has often been to extend the rights andprivileges granted to the citizens of the colonizing country to the inhabitants of thecolonies. As in the French policy in West Africa, this came with the assumption that
assimilation would follow. Assimilation would be aided by education and progress inboth intellectual and material circumstances. To further those aims, the central
government would be directly involved, and ethnic, racial, and cultural differences
would be seen as obstacles to development. This was also the policy of the US federal
government before the Indian New Deal.

9

Legal pluralism as a form of particularism was founded on the idea that culture andtradition would define the form and content of law that should be applied to certain
groups. Law as part of the customs and traditions of the indigenous community wasessentially unchanging and tied culturally to the past. The two ugly extremes ofparticularism were naturally racist essentialism and Apartheid separatism that reduced
indigenous groups to being prisoners of their ethnicity. More acceptable forms were,and still are, legal autonomy and self-government, and the legal protections to shieldindigenous groups from exploitation. The fine line between protection and oppression

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is hard to evaluate, for example, with regard to limiting individual freedom in order toprotect group traditions. In the US, indigenous communities were under state
protection as separate entities in separate areas, but the rights of individuals toownership and freedom of contract were limited. In the British colonial regime, tribes
were often incorporated as administrative units and the role of traditional chiefs wasstrengthened without much regard for the internal dynamics of the area 4. Thus thelegal understanding and conceptualization of indigenous law had and continues to haveimportant concrete ramifications on how the rights of the indigenous peoples are
realized.
10

The influence of anthropology and legal anthropology on legal scholarship was much
like that of legal history : they both served to provide the legal system with acontextual framework. As legal historians controversially claimed, the observation ofreality is actually quite similar to the study of history. For example, Hermann
Kantorowicz (1877-1940) argued that the whole realist claim of observing realities isflawed because what the meaning of an observable phenomenon is remains a wholly
separate issue not deducible from the reality. Thus, what the realists were doing was infact legal history : “much of the research work of the Realists is indeed nothing but
contemporary American legal history”5. Another legal historian and realist, Hessel
E. Yntema (1891-1966), maintained that ever since Oliver Wendell Holmes (1841-1935),
the rational or realistic study of law has been a study of history. While Holmes would
famously claim that the law may be studied like a great anthropological document, thepractical implications of this orientation would be clearly historical 6. Holmes’s famous
dictum about the life of the law was a call to understand law as history.

11

What was significant was that both politically conservative authors and socialists foundthe impulse to construct fairly parallel developmental narratives of the history ofhumankind. Part of the debate was of course the discussions of biology, race andevolution ; these were, from the modern perspective, strange racial arguments about
Aryans and Turanians.

12

One of the most evident contradictions between later legal and anthropological studiesof law comes from the different perception of law itself. The stereotypical conception
has been that while lawyers would approach law as a set of rules and consider the legal
system to be essentially self-reflective, social scientists would see it as a social fact
manifesting itself in social relations. Within the legal community, the interest inprimitive law had a distinct role in the debate between legal formalism and realism. To
people like legal realist Karl Llewellyn (1893-1962), primitive law was an example of
how the law that was found and examined was dependent to a large degree on what
was sought7. The scholarship of legal primitivism continued a great development oflegal history, the juxtaposition of learned law and folk law. There was a distinct
similarity in the nineteenth-century German attempts to reconcile and combine Romanlaw with folk law, and the African context where a distinction was made between legal
reforms based on Western law and the conservation of native law in its supposedprecontact form.

13

Legal realism opened up the possibilities of analysing law in non-literary societies anddetached legal scholarship from its preoccupation with written law. However, the claim
I am making here is that the narrative of legal primitivism continued to be so
successful because it provided content for the concept of civilization. Even though legal
realism and revolutionary anthropology were crucial in liberating legal anthropology,

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the way that legal scholarship still needed the polar other of the uncivilized had
nothing to do with it. The success of the modes of legal primitivism and evolutionism
survived even the change from theories of culture to theories of society in the latenineteenth century. As the cultural arguments were presented less and less, social andeconomic rationalizations were presented to cover human development, modes of
production being linked with the perceived advances in the social and politicalorganization of society. In many cases, the whole social context was simply avoided. For
instance, Post’s books are veritable museums of curiosities in which example after
example is piled up to be examined by the readers, usually briefly and without context
or continuity.

II. Ordeal and the uses of history
14

The way that legal science encountered otherness and how the concept of rationality
played a central role in the evolution of thought is evident in how the legal institutionof ordeal was discussed in early legal history and anthropology. It was just one of theuses of the supernatural in law. The practice of ordeal as a means of proof relied onsupernatural intervention in the legal process. Though examples of ordeals may befound in anthropological material in, for example, Africa, Oceania and the Middle East,
it is best known from medieval European historical sources. In the following, we willtake a look at the development of the discussion on legal rationality in the nineteenth –and early twentieth-century legal and anthropological scholarship using ordeal as afocus. A crucial point of interest is how the interpretations of the rationality or
irrationality of the historical acts were transferred between the scholarship ofEuropean history and works on indigenous cultures. In the following, my interest issolely in the modern interpretations of the ordeal, which often bears little or no
relation to the actual historical or anthropological facts regarding the institution.

15

Within medieval studies from the nineteenth century onwards, opinions on thefunctions of ordeal were divided between irrationalists and rationalists. In the firstgroup were those who held that the practice of ordeal was a sign of the pre-rational
mentality of the Middle Ages and indicative of the great division between medieval andmodern cultures. It was noted that pre-modern people did not think of God as afaraway transcendental being, but rather a benevolent patron who aided and abetted
his believers and who would come to their aid. The second group considered the ordeal
to be a very rarely used instrument that was employed to resolve issues of evidence
that under the rules of the day would not have been resolved at all. In this function, it
was a perfectly rational and effective tool. Also in dispute was the relationship ofordeals to public authority : whether or not it was an archaic remnant that was
abolished with the introduction of rational legal procedure. Though the use of ordeals
was prohibited by the Catholic (church) in 1215, it continued to be used in Europe
sporadically for a number of issues. Earlier, it was thought that a stronger publicauthority would have been able to introduce new rules of evidence making ordeals
redundant. However, observations that the ordeal was actually common in societies
where public authority was strong has called this theory into question and suggestions
have been made that the abolition of ordeals would have to have had an intellectual
explanation8.

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16

Older scholarship held a staunchly irrationalist view and considered ordeals to havebeen seldom used archaic remnants based on folk beliefs. Lawyer and folklorist Jacob
Grimm (1785-1863) held that “when an act was unclear, a right questionable, proof wasneeded” and it could be found in the ordeal. It provided the infallible declaration of the
godhead in question, who as the highest judge determined the right and the just.
Ordeals were of ancient origin and according to Grimm had deep roots in the beliefs of
the people. Later incursions by Christianity and lawmakers had transformed theinstitution, which took many forms such as ordeal by water or by fire, to mention themost common. Grimm stated that it was likely that ordeals were seldom used, sincefrequent use would have eroded the trust of the people in them. In fact, Grimm claims
that if one believes that the Germans would have used ordeal regularly one would alsopresume that they would have been quite dumb9.

17

The publication of legal sources such as medieval Scandinavian laws and sagas from
Norway and Iceland during the nineteenth century and the discovery of ordeals in thelaws of Manu, the laws of Hammurabi and elsewhere led to a resurrection of interest in
ordeal as a primitive form of evidence during the first years of the twentieth century.
For example, Edward White’s (1869-1935) book from 1916 titled Legal Antiquities
explores ordeal as a universal primitive form of judgment that is attested in the Old
Testament, ancient Egypt and India, during the Middle Ages in England and France, andeven in the contemporary world in Nigeria. White’s description of the ordeal is veryclearly one of the progress of rationality over superstition. In Western Europe, ordeals
were halted as regular court procedures by order of the pope, but the unjust andirrational vehicle of prejudice and superstition resurfaced especially during the witch
hunts. He recounts how women suspected of witchcraft had little chance of survival
because, if they failed the test of ordeal, they were guilty, but also if they passed, it wasconsidered to be a sign of Satan’s assistance and consequently the poor woman was
sentenced as being in a pact with Satan. According to White, the examples show how
the ordeal was the ultimate injustice, because the individual was completely helplessand without protection against the attack of the combined forces of the Church andState. For White, the institution of ordeal was a remnant from pagan antiquity, fromtime immemorial and passed on to the Church as an old custom. 10 In my opinion,
White’s book is the epitome of the primitivistic interpretation which saw otherness as
irrational.

18

However, according to German legal historian Karl von Amira (1848-1930), a student of
the German jurist Konrad Maurer (1823-1902), the ordeal was not an original elementin old Germanic law. It was introduced with Christianity and spread only from Germany
to Scandinavia. Instead, trial by duel was known extensively and considered to be theoriginal form of settling disputes of certain kinds. Ordeals, on the other hand, were
only secondary modes of proof and were replaced by different material forms ofevidence. The combined opposition by the Church and the Crown from the ninth
century onwards led to the abandonment of ordeals in ordinary trials by the thirteenth
century11. I would suggest that the main difference between a diligent scholar such as
von Amira and White was that the first was seeking to describe and interpret a
historical situation while the second was interested in building a general theory ofcivilization and thus their attention to detail was markedly different.

19

Even in general theories of ordeal, things were beginning to change within theevolutionary interpretations through the advent of psychological theories. A

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completely different interpretation from White’s is presented in a book published a few
years later, Hugh Goitein’s (1896-1976) 1923 Primitive Ordeal and Modern Law. Though
Goitein recounts the same basic story of the history of ordeal through the Middle Agesand the witch hunts and the examples from ancient India and Greece, the focus of theargument is the primitive legal mentality that the ordeal illustrates :[T]he ordeal implies a social background and a psychological basis that are almost
unintelligible to the modern mind. Modern travellers studying backward peoples
are apt unconsciously to distort, to give a rational twist, to the ceremonies they
have witnessed12.
20

We can see how Goitein stands between the older tradition of primitive law and thenewer anthropological scholarship in that he describes, for example, the water ordeal
as an ancient Indo-European tradition of which the earliest records are from India andsimilar examples are to be found among Germanic peoples. Despite this, he was alsointerested in the social mechanisms of ordeal in primitive societies as described byanthropological accounts. Anthropology and psychology were the tools with which one
may decipher the course of evolution that led from the spear-throwing ordeal ofAustralian aborigines to the rational modern criminal trial. However, the ordeal was
also a general tool for the whole judicial process from determining the offender to thequestion of innocence. According to Goitein, the primitive mind sees magic and thesupernatural in almost everything that it cannot readily explain. The rationality of theordeal, which made it a universal institution that found innumerable uses, was the way
it utilized basic human psychology in a way that provided results 13.

21

The popularity of the theme of indigenous ordeal rose with the publication of Roy
F. Barton’s studies on the Ifugao ordeal in 1919. According to Barton (1883-1947), an
American dentist-cum-anthropologist who studied the recently conquered Philippines,
ordeals were used among the Ifugao in the Philippines in both civil and criminal casesand either of the parties could challenge the other to an ordeal. His view of the ordeal
is fundamentally one of social rationalizing. Refusing the challenge would
automatically mean losing the case. However, if the accused were to pass the ordeal theaccuser was liable to pay a fine for false accusation. The ordeals and wrestling duels
used for the same end were supervised by an independent arbiter called the monkalun
and used as ways to demonstrate one’s innocence and also to prod the suspected
person to confess. Barton described how different forms of ordeal were used to settle
disputes. In the hot water ordeal, the person attempts to pick up a pebble from acauldron of boiling water and without too much haste to replace it on the bottom.
Being too quick or hesitant would amount to an admission of quilt. A version ofcarrying the iron was the knife ordeal, in which a knife was first heated to make theblade glow red and then pressed on the hand of a person. In a dispute, the knife waspressed in turn on the hands of both parties and the one with lesser burns was right. It
was said that the gods of war and justice will not permit the hand of the innocent to beburned even though the monkalun would press the knife with all his strength. If theaccused survived the ordeal with minor damages the accusers were made to pay
compensation. The belief was that supernatural powers would aid the one who is rightand produce the correct decision. However, accusations of adultery would never besettled with an ordeal because it was thought that the gods of fertility would aid theaccused, who was, after all, doing their work. Another special case is the settling ofboundary disputes, for which trials by wrestling were used. The parties or theirchampions would wrestle in the terraced rice fields in deep water, after sacrifices andClio@Themis, 15 | 20197

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prayers to the correct deities had been made. In all of the cases the figure of the judge
or monkalun was central because he was the one who decided who had won eachcontest. Of course, blatant unfairness on the part of the monkalun would result in theruling being contested and the monkalun himself being the target of accusations.
22

Barton noted that while the ordeals favour those with thick or dry skin, the issue isfundamentally of a state of mind. As ordeals are a feature in cultures around the world,
could they be somehow connected to the trials of walking on hot stones or burning
coals?14 Thus the one with a calm disposition, strengthened by the truthfulness of his
cause, would be surer to pass the test than the one who knows his uncertain merits.
What becomes clear from reading Barton’s account is that instead of attempting toplace the ordeal in an arbitrary outside template with criteria of rationality andcivilization, he sought to understand the institution in its context.

23

The contradictions between irrationality and primitive psychology were furthermore aquestion of whether the application of objective criteria is useful. The nineteenthcentury irrationalists maintained that the utilization of tools like ordeals or magicalelements in contracts is irrational and the sign of an undeveloped mind. The
rationalists, as observers of primitive psychology, maintained that it was immaterial
whether or not something really worked as a way of finding out the truth or enforcing
a contract. The crucial question for them was whether or not it functioned in the social
setting. Thus, if the use of rituals, ceremonies or other manipulations of beliefs in the
supernatural forces helped establish something that was believed to be the truth in thesocial setting, then it had served its purpose.

24

In conclusion, in the history of jurisprudence, theories of evidence have been a crucial
point of determining the advance of legal rationality. Formal theories of proof, letalone ordeal, were thought to lie in the irrational past and the free evaluation ofevidence would be the future. In the analysis of the ordeal, cases where the context
could be considered led scholars of the early twentieth century to a new understanding
about the previously hidden internal logic of the ordeal. What the shift in the earlyinterpretations of ordeal in the first works of legal anthropology meant was in myopinion the gradual abandonment of the theory embedded in the legal scholarshipabout ordeals as irrational and their replacement with a theory of culturally
understanding actions from the actors’ perspective.

III. Revenge and the barbarian theory
25

Like ordeal, revenge was traditionally seen by scholars and moral theoreticians alike as
an inversion of justice, a primal urge that would be abolished with the advance of
civilization. Different forms of revenge such as blood revenge or talion were seen
earlier as instances where the slow progress of civilization would first limit and finally
eradicate violence as a form of settling conflicts. The initial point of inquiry in these
theories was nearly always the figure of the savage or barbarian as incapable ofcontrolling his violent urges and society incapable of controlling him 15. From thenineteenth century to the twentieth, the issue of revenge in early societies continued
to interest legal scholars and anthropologists. Much like the interpretations of theinstitution of ordeal at the same time, the modern interpretations of blood revenge
develop from explanations of primitive savagery to the understanding of the actor
perspective, leading to a new conception of rationality in revenge. In the following, I

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seek to demonstrate how this historiographical development took place, but equally
how its legacy still influences the current understanding of revenge as a legal custom.
26

The theory of the primitive as the other had its classical precedents in the form of the
figure of the barbarian, defined by uncultured lawlessness, immorality and generalsavagery. The complexity of the concept of primitive is the result of the many layers of
thinking involved. Its foundations are in the classical theories of social philosophy on
the formation of law and social order, beginning with the 5 th-century BCE Greek
authors through the nineteenth-century German theorists. The classical theories on
the primitive can be divided into two main lines, the foundationalist and the otherness
theories, which represent the classical dichotomy between the primitive as the archaic
origins of our civilization and the idea of the uncivilized barbarian as the other foreveroutside our culture. Formative in the theory of the primitive were the natural state
theories of Hobbes, Locke, Rousseau and Marx, as well as the theories of the nation, dasVolk, of German Romanticism. The term “noble savage” was coined in 1609 by the
French legal scholar Marc Lescarbot (1570-1641) as a concept of comparative law. The
term was only reused by British ethnologist John Crawford in 1859 for the purposes ofscientific racism and led to its use in anthropological scholarship by Lubbock, Tylor andBoas. However, in legal history the term was considered to be so problematic that itnever gained popularity16. Because these foundations were constantly used as points ofreference, studying the primitivist discourse without a background in social philosophy
would be futile.

27

Revenge was a constant source of fascination for the nineteenth-century pioneers oflegal anthropology, who wanted to step away from the moral condemnation of revenge
prevalent in the earlier scholarship (often stemming from the use of moral philosophy
based on Kant and Hegel) and to take a more analytical approach, seeking to classify
and categorize it. According to A. H. Post, revenge is not a legal phenomenon but partof the social system. It may take the form of 1) a duel, 2) an attack, 3) authorized
revenge, or 4) a fine17. The offering of composition with money and other valuables wasa sign of the decay of the primitive system of upholding the peace that wascharacterized by blood revenge and social outlawry (Friedlosigkeit) 18. The institution ofsocial outlawry was a universal institution as well, but as von Amira already noted, wasit a punishment in itself or a precondition for the punishment? 19 An equally universal
institution was talion, and finally fines took the place of blood revenge and social
outlawry. In his examples, Post moves fluently between Malayan natives, Old
Norwegians and Somalis as samples of a universal phenomenon 20.

28

According to Ludwig Günther (1859-1943), revenge was a primitive characteristic.
Though there were differences in how the institutions have been realized between
places and climes, the odd resurgence of the Montesquiean idea of climates andcultures, revenge is a universal phenomenon in the childhood of man. Likewise, there is
not a people (Volk), whose phases of development did not include talion as the crucial
element in the measurement of punishment21. For Günther, as for Post, talion was an
institution linked to a developmental stage in the advance of civilization. As such, it
may be seen as application of the unilinear theory popularized by the American
anthropologist Lewis Henry Morgan (1818-1881) and others, but it also drew upon theearlier theories of, for example, Montesquieu which followed a universal line ofdevelopment from barbarism to civilization.

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29

In the early ethnographic work, the fascination with revenge and violence continued,
but the scholarship would focus almost exclusively on single groups or cultural areas.
The pioneering work of Baldwin Spencer (1860-1929) and Francis James Gillen(1856-1912) on the Australian aborigines concentrated on the elements of difference
that separated the aborigines from Western culture, such as peculiar marriage customs
or the use of blood revenge. The use of revenge was widespread because it was often
believed that, instead of a disease, a man’s actual cause of death would be magic. The
dying person might even reveal to a medicine man the name of the person whose magic
is killing him or her, or the medicine man would find out by other means such as thelocation of an animal burrow. When the identity of the killer is revealed, work begins
on the organization of an avenging party to be sent out. The avenger is selected and hewears a special set of elaborately made shoes after a rite of initiation. Rubbed blackwith coal, the colour of magic, they approach their victim and, aided by magicalceremonies and rituals, spear the man to death. Spencer and Gillen note that while thetradition is alive in the sense that it was talked about and referred to, knowledge ofactual cases where the ritual and the blood revenge had been carried out was lacking 22.
Their work would later become fundamental in the way anthropology could capture
the public imagination and penetrate into social theories.

30

While Spencer and Gillen noted that, in Australia, the tradition of blood revenge wasmostly a historical feature rather than an existing custom, other anthropologists of thetime reported it as a contemporary practice. For instance, Finnish anthropologist andscholar of religion Rafael Karsten (1879-1956) noted that, among the Jivaro in SouthAmerica, both private vengeance within the tribe and larger wars between tribes wereconducted with equal passion, but only in the latter case were trophies made of theheads of the enemies killed. Because most deaths are attributed to sorcery, theperceived murder “naturally awakes the desire for blood revenge”. A feast lasting
several days is held for the slayer and elaborate rituals performed to wash away thespirit of the killed man23.

31

According to Barton, the Ifugao approach the feud as a legal matter, each killing seen as
punishment for a crime. They also see the feud as a matter of debt in which the revenge
is understood as a payment. Capital punishment as part of a blood feud is the rule, andno self-respecting family would accept blood money for the killing of their kin. For
other crimes, blood revenge may be resorted to only when the payment of proper fines
has been refused. Because the culprit is never officially notified that he has beensentenced to death and the execution is carried out by ambush, the line between
punishment and murder is thin. Thus, the carrying out of a death sentence has often
lead to a blood feud between families. Because of this, in cases where anotherpunishment that would be consistent with the dignity and respectability of the family
would be possible, it is usually taken24.

32

The distinction between feuding and war was sometimes hard to make. For example, in
1920 Robert Lowie (1883-1957) traces feuding to group solidarity in which conflicts
between members of different groups are turned into conflicts between groups with
one side protecting the assailant and the other the victim’s right to revenge 25. Thus,
instead of being a sign of underdevelopment and lack of civilization, feuding was a trait
reflecting social organization.

33

These contextual approaches were of course not the only way ethnographic data was
explained, and belief in the universalist theories of the advancement of civilization

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continued. For example, the British folklorist Sidney Hartland (1848-1927) portrays theAustralian Aboriginals in 1924 as the first step of unmitigated and uncontrolled clan
violence. Only the advance of civilization and the decay of clans removes first womenand children and later uninvolved men from harm’s way26. If Spencer and Gillen,
Karsten and Lowie sought to understand the social dynamics of revenge, Hartland stillseeks to insert it into an evolutionary model without much concern for its social
context.
34

Though almost contemporary with Hartland, accounts by most anthropologists andsociologists presented a picture that was completely opposite to the evolutionarymodel, one that sought to present the indigenous understanding, much like Spencer
and Gillen, Karsten and Lowie. For example, Lucien Lévy-Bruhl (1857-1939), the famous
French sociologist, wrote that, in the primitive mentality, there are no accidents but
rather there are causes for everything, leading to very impractical demands forrevenge. Every death must be avenged in principle, but in practice with high childmortality it becomes impossible. Even with notables, it is possible that the warriors
leave clamouring to avenge the dead but do not touch the enemy. However, he claims
that the spirit of the dead and the next of kin are satisfied with the demonstration of
intent and will. Without this revenge, the family of the dead would have suffered his
wrath in the form of the loss of catch or wild animals destroying the camp or otherdamage. In the case of the natives of New Guinea, the dead actually aid the living intaking vengeance27. The theories of primitive mentalities advanced by Lévy-Bruhl andothers were in many ways attempts to point out the root causes of the differences
between customs, but ended up essentializing the indigenous peoples and depriving
them of agency.

35

The impact of the early scholarship on the current understanding of blood revenge isan interesting case of cultural continuities and connections. If one looks at the mostrecent scholarship on blood revenge and indigenous violence, the first impression is amove away from the ethnographic present and towards history, much like the earlytwentieth-century ethnographic work. This is rather ironic since the main tenet offunctionalism had been a move away from history and towards the ethnographic
present. In part, the explanation may be that blood feuding has been prevented in mostparts of the world by state authorities and thus the resurgence of feuding is possible
only when public order breaks down. Thus, the need to use historical sources that areavailable. For example, F. Georg Heyne’s work on ritual blood revenge among theReindeer Evenki describes events taking place some fifty years earlier. In general, thetheoretical foundations of the studies on blood revenge have undergone a fundamental
transformation. In the mainstream anthropological scholarship, the theory of thecivilizing process that would have led from unrestricted revenge to talion and finally tocompensation was dead by the early 1970s. It was noted that observations suggest thatrevenge killing is more common in loose societies without central authority thanelsewhere, but the idea that there would have been a development leading from one tothe other is untrue, except perhaps in ancient Rome or Athens28. Thus, for example, in
1973 MacCormack was already flogging a dead horse when he wrote that there is noevidence of a development from revenge to compensation, because there are nosocieties in which wrongs were met with only revenge, but rather that revenge killings
are a special instance which depends on the relationship of the parties involved. In fact,
revenge killing is actually compensation because the offender is reduced to the samestate as the victim. What made his article “Revenge and Compensation in Early Law”

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unique was the comparison between the talionic passages of the XII Tables andcontemporary African material29.
36

At the same time, social and moral philosophers have attempted to revitalize theconcept of lex talionis as a philosophical idea. Jeremy Waldron has maintained thatmuch of the dislike of the lex talionis stems from a moralistic misunderstanding of theprinciple as a backward-looking and mechanistic approach to punishment. Instead, heshows that it does not really fit into the current theories of punishment, but that it has
great value in the debate on punishment and proportionality as soon as simplistic
conceptions are abandoned30. In the debate over revenge, Jon Elster has claimed thatrevenge is indeed rational, while Alan P. Hamlin says that honour is the psychologicalmotivator of action in revenge. Richard Posner has argued that both emotion andrationality play a role in revenge31.

37

There are three main contemporary models that have recently been used to describe
blood feuds : the functionalist, culturalist and rationalist models. The functionalist
models claim that blood feuds promote group coherence. Cultural models suggest that,in societies where revenge and feuds are common, groups are the natural bearers of
responsibility. Rationalist models claim that blood feud serves a distinct purpose toprotect an individual and his group from further aggression through deterrence ofviolence and thus blood revenge is a strategic response32.

38

Functionalist models like Edward Evan Evans-Prichard’s (1902-1973) early studies on
the Nuer sought to uncover the underlying reasons for revenge and feuding. For
example, Jacob Black-Michaud’s famous book, Feuding Societies, explained feuding as aprocess with a logic of its own where terms like debt and honour are parts of themechanism of feud, not its reasons. Beyond this cultural phenomenon, feuding was
ultimately economic, caused by a “total scarcity” in resources 33.

39

Cultural models instead maintained that cultural factors channel conflicts andaggression into revenge and feuding. For example, Schlegel’s study on the Tiruray of
Mindanao in the Philippines explains that an insult causes bad fedew, which therevenge removes. This intense moral outrage that is caused by the bad fedew is both thecause and the justification of violence that could be exacted on the entire extended
family34. Cultural change may also affect customs like feuding. R. Lincoln Keiser’s 1986
article on the Thull community describes the adoption of revenge. While, historically,feuding had been a part of the culture in Thull as long as historical records exist,
composition had earlier been an established part of the system. Only the introductionof Pakhtun influence due to the change in the balance of power by the British Empire
led to the escalating violence of feuds. The Pakhtunwali or the code of the Pakhtun
emphasized badal or revenge as the suitable resolution of conflict instead of the
traditional values of village peace and prestige. But only modernization and theincorporation of Thull into the modern state with the building of schools, roads andhospitals led to the widespread adoption of blood vengeance or dushmani. As religious
leaders travelled to centres of Islamic learning in Pakistan, they adopted a stricter
religious interpretation and with it many elements of an honour culture. Some of the
new ideals and values of purified religion stipulated violent retribution for many realand imagined injuries, especially those regarding women and sexuality. When to thisvolatile mixture was added the ready availability of firearms, the fact that death enmity
spread is hardly surprising35.

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40

Rationalistic models on revenge explained the violence as a way to re-establish
dominance or social standing. This act may be explained by the actor as a defence of his
or his group’s honour36. Analysing feuds in Montenegro, Christopher Boehm claimed
that blood feuds actually serve as a way to channel honour-based conflicts and limit thedamage they pose to the whole community. The fighting was limited to reciprocal actsof violence that targeted specific persons and when honour had been served there were
established systems to enable the conclusion of the feud37. Cultural and rationalistic
models thus have a tendency to exist side by side. For example, William Ian Miller’sbook, Eye for an Eye, claimed that talionic cultures used talion as a way to measure theworth of a man. The elaborate tables of compensations, the measuring of worth inblood money, was a way to take the full measure of a person. That measure, becausetalionic cultures tend to be honour cultures, includes the social and moral order that iscalled honour. Miller’s main point is that talion is a system of getting even 38.

41

Within the debates over feuding and revenge, the concept of honour has loomed large
even recently. In the current discussion regarding violent honour cultures, there are
two main stereotypes : the honour culture among the uncivilized natives and themurderous subsects of modern societies. Regarding the first, the Bedouin have eversince the orientalist Johann Ludwig Burckhardt’s (1784-1817) time served as examples
of an unfettered honour culture in which honour is the only measure of a man andwhere to die and kill for honour are not only expected but required. Pierre Bourdieu’s(1930-2002) famous description of the honour code of the Kabyle, a Berber group livingin Algeria, has strengthened this view. According to Bourdieu, the Kabyle honour
system is a reciprocal exchange of challenge and response. Each challenge brings a man
honour since a true man has enemies. Thus, a man has to be constantly vigilant andready to respond to whatever a slightest challenges may come to his honour. However,challenging someone who is incapable of responding only brings shame to thechallenger, as does the extreme public humiliation of the victim. Uncontrolled anger
and unreasonable behaviour will only lead to irreparable dishonour. Consequently, one
should only answer challenges from one’s equals, for quarrelling with inferiors only
lessens one’s value and honour39. Bourdieu’s romantic picture has been much
criticized ; for example, Lila Abu-Lughod maintains that vengefulness and aggression
are for men the acceptable ways of dealing with sorrow and other negative feelings.
The ideals of revenge are also expressed in the songs of mourning, which tell of thebones of the dead demanding vengeance so that the repayment of the offence would set
them free40. Like the Bedouin, many modern honour cultures – such as Mafiosi or thecommunities of kinsmen in Albania, Montenegro, Corsica and elsewhere – use themetaphor of blood as a symbol of their community, a ritual brotherhood of men thatshuns state control and values blood revenge41. The interpretations of honour cultures
have also been strongly influenced by Western traditions of an aristocratic honour
culture and the practice of duelling42.

42Participant perspective and the symbolic order that accompanies the descriptions ofhonour codes do not always help explain the way blood vengeance works as a
purposeful sanction against aggression. Roger V. Gould suggests that the culture ofhonour that is so prevalent in the explanations of blood feuds is not a factor that could
be used to explain blood feuds. Noting that institutionalized revenge operates mostly insettings where population density is small and bureaucratic structures for dispute
resolution are weak or in stateless domains within industrial societies, revenge is often

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the only viable option. Therefore, the reason why someone thinks he is acting (such as
defending honour) is sometimes misleading because all theoretical models are based on
the fact that the expectation of vengeance is a deterrent43.
43

In the modern public discourse, things like blood revenge and feuding are regularly
treated as remnants of former eras, barbarian practices that should have been
eradicated long ago. The rise of reports about blood revenge taking place in failed
societies such as Afghanistan, Albania, Iraq or Somalia have been met with ponderings
about the retreat of civilization and a return to savagery. However, at the same time,
contemporary critics such as Raymond Verdier have pointed out how themonopolization of violence and revenge by the state has removed the victim on thesidelines and fails to deal with their psychological need for a hearing, for getting even 44.

44

Favali and Pateman describe at length the various contemporary Eritrean traditions ofblood feuds and the approaches to the many ways of ending blood feuds such as
arbitration, blood money, other compensation and marriage. Even though the Christianand Islamic authorities and the Egyptian, Ottoman, Italian, Ethiopian and Eritrean stateauthorities have attempted to limit blood feuds, the mechanisms appear to be fully
functional to the present day. What actions lead to a blood feud and whose
responsibility it is to pay blood money and to whom and how much were meticulously
described in the numerous tribal laws. Some murders could be ransomed, while others
could not and some were legitimate targets for revenge killings and others were not.
However, even here the references to actual blood feuds are mostly to historic eventsand it is repeatedly mentioned in different contexts that it is well known that the
government does not approve of it45. While the Eritrean material conforms or is madeto conform to the civilizing process of blood feuds and vengeance being replaced
gradually by compensation, there continues to exist a culture of revenge in whichfamiliar abstractions such as honour and blood are said to demand vengeance in bloodand, to close the rationale, that revenge killing brought honour (and sometimes even a
special chain to mark the killer as a blood avenger). The common mode of explanation
appears to be that it is always that in the old days people were obsessed with revengeand long, drawn-out vendettas were common46.

45

In a fashion similar to the way the colonial powers often decried punishments thatwere deemed barbaric, modern states and the public opinion in them have responded
to the punishments ordered by traditional courts with outrage. A recent example is theexecution of a young couple by the order of an Indian traditional court in 2009. The
couple had married in violation of the Khap law that prohibited marriage among themembers of the same clan. They were subsequently kidnapped and killed by membersof the girl’s family, ostensibly to set an example of the inviolability of the traditionallaws. When the killers were sentenced, the state courts criticized the traditional Khap
court harshly, describing it as brutal, barbaric, feudal and shameful. The Supreme court
even suggested that they should be stamped out completely. As Makhija has pointed
out, the clash of traditional and modern legal traditions played out the narrative ofmodernization and civilization where the traditional system was portrayed as
backwards and barbaric47.

46

The issues of primitive mentality that were explored through the issue of ordeal,
revenge, or rationality are highly problematic and contain value judgments thatperpetuate stereotypes of a racial character. The otherness of the spiritualism andritualism among indigenous peoples continues to attract the attention of scholars,

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especially with the resurgence of psychoanalysis48. Often these issues have attracted
scholars for reasons that have little to do with understanding indigenous culture andmore about using it to criticize Western civilization. At the same time, others havecontested the very premise of a movement towards rationalization and away from theritual, magical and occult. For example, Jean Comaroff and John L. Comaroff 49 havemaintained that the resurgence of instances of ritual murder, moral panic, magical evil
and witchcraft in post-Apartheid South Africa are not about a retreat into tradition or areversal of civic education, but rather the emergence of a new “occult economy”
operating under the surface of the modern state as expressions of the discontent overthe inexplicable capitalist system where the unattainable wealth generated is mixed
with the occult. In short, new magic is created for new situations.
47

The theory of the advance of rationalization as part of the civilizing process and thelinkage between religion and ritual produced some fairly convoluted results whereindigenous ritual practices were rationalized while ancient Roman legal rituals wereprimitivized. The early theories of both the historical and anthropological kind werebased on a conviction that there existed an earlier primitive mode of thought that was
dominated by magic and supernatural powers that led it to adopt formalistic modes ofaction in their religious and legal systems. Functionalist critics of this theory
maintained that the theories that linked formalism with religion were unfounded 50.

48

In conclusion, both in the early and contemporary scholarship revenge and rationality
have been approached with moralistic and primitivistic undertones, a feature that
traces its permanence to Biblical precedents. The fact that it has often taken racializing
tones demonstrates how easily such hierarchical theories take on political guises. My
main claim is that only through openly addressing its past and seeing the roots ofcertain interpretations will legal and anthropological scholarship be able to free itself
from the moralizing undertones of the research on violence.

Conclusions
49

Primitivism and the cultural approach in law has often been criticized for perpetuatingsocial Darwinism and racism. Already, Franz Boas attacked the theories of racial
superiority that were founded on primitivism and evolutionary theories. Instead, heheld that from each race one may simultaneously observe “the most varied culturalforms”, from fairly advanced civilizations to “primitive tribes”. The claims that theprimitive man is mentally undeveloped and incapable of mental exertions he similarly
rejects as false observations by bad scientists who just wearied their informants withquestions irrelevant to them. Boas attacked the unproven conviction of European
superiority, claiming that it influenced the judgment of observers, who interpreted
difference as a sign of inferiority. In reality, it is impossible to judge whether the causeof the supposed inferiority is not the result of physical and economic conditions orsocial and political inequality that take away the possibility to fulfil their potential 51.

50

The history of legal primitivism and the transformation of the study of indigenous legal
culture during the late nineteenth and early twentieth century was ultimately aquestion about the understanding of legal rationality. This concerned rationality either
as a Western concept seen through a Eurocentric lens of teleology or the internal logicof the indigenous culture. The main significance of this issue today is how much it still
informs our understanding of legal otherness and the rejection as “barbaric” orClio@Themis, 15 | 201915

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“uncivilized” of the way indigenous cultures operate. In the case of ordeal and blood
revenge, the logic of legal primitivism was to assume a near universal developmental
logic. According to this interpretation, Western legal cultures had in their antiquity
had some similar elements, but they had developed and rejected these barbarianpractices of resorting to violence. This teleology would then justify, among otherthings, the eradication of these customs among the indigenous peoples living under the“tutelage” of European colonial powers.
51

In contrast, legal anthropology ascribed rationality and reason to the most bizarre oflegal customs, seeking to understand why and how such an arrangement was born.
They sought the internal logic of the actor, the function of this custom in the legal
culture. Within the scholarship of law, early legal anthropology had a role similar tolegal history and the aim of rejecting claims of irrationality was equally shared. Whilecontemporary legal anthropology has for a long time sought to escape history and tooperate in the ethnographic present, the roles of history and anthropology have grownin similarity. Rather than illustrating the savage past or the rejected forms of action,
they seek to demonstrate the internal logic of the legal culture. What this entails is that
their conceptions of law and rationality, and equally the methods used to analyse them,
could be a useful source of interdisciplinary cooperation.

NOTES
1. F. von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence, London,
Littlewood & Co. Old Bailey, 1984, 24-26.
2. P. Stein, Legal evolution : the story of an idea, Cambridge, Cambridge University Press,
1980 ; A. Kuper, The invention of primitive society : Transformations of an illusion, London,
Routledge, 1988 ; K. Tuori, Lawyers and Savages, New York, Routledge, 2015.
3. M. Weber, Gesammelte Aufsätze zur Wissenschaftslehre, Tübingen, J. C. B. Mohr (PaulSiebeck), 1988, 291-345, paraphrased.
4. W. Twining, “Normative and Legal Pluralism : A Global Perspective”, Duke Journal ofComparative and International Law, 20, 2010, p. 473-517. On earlier traditions of pluralism,
see M. B. Hooker, Legal Pluralism : An Introduction to Colonial and Neo-colonial Laws, Oxford,
Clarendon Press, 1975. For a more recent assessment, see L. Sheleff, The Future of
Tradition : Customary Law, Common Law and Legal Pluralism, London and Portland, OR,
2000. On the division between state legal pluralism and others, see S. E. Merry, “Legal
Pluralism”, Law and Society Review, 22, 1988, 872-874. On the difficulty of transition
between state legal pluralism and deep legal pluralism, see G. van Niekerk, “Legal
Pluralism”, in Introduction to Legal Pluralism in South Africa, éd. J. C. Bekker,
C. Rauterbach, and N. M. I. Goolam, Durban, 2006, p. 5-10. On the colonial pluralistic
regimes, and the difficulties of tradition, see M. Chanock, Law, Custom and Social Order :The Colonial Experience in Malawi and Zambia, Cambridge, Cambridge University Press,
1985.

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5. H. Kantorowicz, “Some Rationalism about Realism”, Yale Law Journal, 43, 1934,1249-1250. Coincidentally, that is also the argument of D. Rabban, Law’s History :American Legal Thought and the Transatlantic Turn to History, New York, Cambridge
University Press, 2013.
6. H. Yntema, “The Rational Basis of Legal Science”, Columbia Law Review, 31, 1931,
p. 697.
7. K. N. Llewellyn and E. A. Hoebel, The Cheyenne Way : Conflict and Case Law in Primitive
Jurisprudence, Norman, OK, 1941, p. 41-44.
8. S. Bagge, “The Ordeal in Norwegian Law and Practice”, in Liber Amicorum Ditlev Tamm,ed. P. Andersen, P. Letto-Vanamo, K. Å. Modéer, and H. Vogt, Copenhagen, Djøf
Publishing, 2011, p. 55, 65-68.
9. J. Grimm, Deutsche Rechts Alterthümer, Göttingen, Dieterichschen Buchhandlung, 1828,
p. 908-911.
10. E. J. White, Legal Antiquities : A Collection of Essays upon Ancient Laws and Customs,
St. Louis, MO, 1913, p. 141-171.
11. K. von Amira, Germanisches Recht, Berlin, Walter de Gruyter, 1967, p. 172-177.
12. H. Goitein, Primitive Ordeal and Modern Law, London, George Allen & Unwin, 1923,
p. 54.
13. H. Goitein, Primitive Ordeal and Modern Law, London, George Allen & Unwin, 1923,
p. 53-79, 107-109.
14. R. F. Barton, Ifugao law, Berkeley, University of California Press, 1969, p. 92.
15. On the tradition of talion, see K. Tuori, Lawyers and Savages, New York, Routledge,
2015 ; K. Tuori, “Revenge and retribution in the Twelve Tables : Talio esto reconsidered”,
Fundamina, 13, 2007, p. 140-145 ; J. Q. Whitman, “At the origins of law and the state :Supervision of violence, mutilation of bodies, or setting of prices?”, Chicago-Kent Law
Review, 71, 1995, p. 41-71.
16. G. MacCormack, “A Note on the ‘Primitive’ in Legal History”, The Irish Jurist, newseries, XIII, 1978, 197-201.
17. A. H. Post, Grundriss der ethnologischen Jurisprudenz, 2. Bd., Oldenburg, Schulzesche
Hof-Buchhandlung und Hof-Buchdruckerei, 1895, p. 233-237.
18. A. H. Post, Die Grundlagen des Rechts und die Grundzüge seiner Entwicklungsgeschichte.
Leitgedanken für den Aufbau einer allgemeinen Rechtswissenschaft auf soziologischer Basis,
Oldenburg, Schulzesche Hof – Buchhandlung und Hof-Buchdruckerei, 1884, p. 109, 385.
19. A. H. Post, Afrikanische Jurisprudenz. Ethnologisch-juristische Beiträge zur Kenntniss dereinheimischen Rechte Afrikas, Oldenburg, Schulzesche Hof – Buchhandlung und Hof –Buchdrunckerei, 1887, p. 24-26 ; K. von Amira, Germanisches Recht, Berlin, Walterde Gruyter, 1967, p. 134-136 ; K. von Amira, Die germanischen Todesstrafen, München,
Verlag der bayerische Akademie der Wissenschaften, 1922, p. 1-3.
20. A. H. Post, Die Grundlagen des Rechts und die Grundzüge seiner Entwicklungsgeschichte.
Leitgedanken für den Aufbau einer allgemeinen Rechtswissenschaft auf soziologischer Basis,
Oldenburg, Schulzesche Hof – Buchhandlung und Hof-Buchdruckerei, 1884, p. 409-414 ;A. H. Post, Afrikanische Jurisprudenz. Ethnologisch-juristische Beiträge zur Kenntniss dereinheimischen Rechte Afrikas, Oldenburg, Schulzesche Hof – Buchhandlung und Hof –Buchdrunckerei, 1887, vol. 6, p. 20-21 : “allerprimitivsten Stufe”; A. H. Post, Grundriss

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Law and Rationality: A Historiographical Investigation of the Understanding o...

der ethnologischen Jurisprudenz, 2. Bd., Oldenburg, Schulzesche Hof-Buchhandlung und
Hof-Buchdruckerei, 1895, p. 239-243.
21. L. Günther, Die Idee der Wiedervergeltung in der Geschichte und Philosophie desStrafrechts. Abteilung 1, Erlangen, Th. Bläsing's Universitätsbuchhandlung, 1889, p. 2, 8,
12.
22. B. Spencer and F. J. Gillen, The native tribes of Central Australia, London, MacMillan
and Co. Limited, 1899, p. 478-485.
23. R. Karsten, Blood Revenge, War and Victory Feasts among the Jibaro Indians of Eastern
Ecuador, Washington, D.C., Government Printing Office, 1923, p. 1, 10, 16-19.
24. R. F. Barton, Ifugao law, Berkeley, University of California Press, 1969, p. 70.
25. R. H. Lowie, Primitive society [1920], New York, Liveright, 1970, p. 400.
26. E. S. Hartland, Primitive Law, London, Methuen & Co. Ltd., 1924, p. 53.
27. L. Lévy-Bruhl, La mentalité primitive, Paris, Librairie Félix Alcan, 1925, p. 65-69, 192.
28. E. A. Hoebel, The Law of Primitive Man : A Study in Comparative Legal Dynamics,
Cambridge, MA, Harvard University Press, 1964, p. 329-330 ; L. Pospisil, Anthropology or
Law : A Comparative Theory, New York, Harper & Row, 1971, p. 117, 188 ; P. Stein, Legal
Institutions : The Development of Dispute Settlement, London, Butterworths, 1984, p. 11-12.
On studies on the beginnings of criminal law in ancient Rome and Athens, see
A. Drummond, “Rome in the fifth century II,” in Cambridge Ancient History, Vol. 7.2,
Cambridge, Cambridge University Press, 1989, p. 145 and D. Cohen, “Honor, Feud, andLitigation in Classical Athens”, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte :Romanistische Abteilung, 122, 1992, p. 100-115.
29. G. MacCormack, “Revenge and Compensation in Early Law”, The American Journal ofComparative Law, 21, 1973, p. 69-83.
30. J. Waldron, “Lex Talionis”, Arizona Law Review, 34, 1992, p. 25.
31. J. Elster, “Norms of Revenge”, Ethics, 100, 1990, p. 872 ; A. P. Hamlin, “Rational
Revenge”, Ethics, 101, 1991, p. 372.
32. R. V. Gould, “Revenge as Sanction and Solidarity Display : An Analysis of Vendettasin Nineteenth-Century Corsica”, American Sociological Review, 65, 2000, p. 685, 699-700.
33. J. Black-Michaud, Feuding Societies, Oxford, Basil Blackwell, 1975.
34. S. A. Schlegel, Tiruray Justice : Traditional Tiruray Law and Morality, Berkeley,
University of California Press, 1970, p. 47-55, 119-121. It is, however, indicative thatmost examples that are recounted by Schlegel are historical, of earlier unspecified
times such as mid-nineteenth century or before the Japanese came.
35. R. L. Keiser, “Death Enmity in Thull : Organized Vengeance and Social Change in a
Kohistani Community”, American Ethnologist, 13, 1986, p. 489-505.
36. R. V. Gould, “Revenge as Sanction and Solidarity Display : An Analysis of Vendettasin Nineteenth-Century Corsica”, American Sociological Review, 65, 2000, p. 685, 699-700 ;J. Black-Michaud, Feuding Societies, Oxford, Basil Blackwell, 1975, p. 179-184 ;J. G. Peristiany, Honour and Shame : The Values of Mediterranean Society, London,
Weidenfeld and Nicolson, 1965.
37. C. Boehm, “Blood Revenge : The Anthropology of Feuding in Montenegro and Other
Tribal Societies”, American Anthropologist, New Series, 87, 1985, p. 76 ; R. Hayden,“Review : Blood Revenge : The Anthropology of Feuding in Montenegro and Other

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Law and Rationality: A Historiographical Investigation of the Understanding o...

Tribal Societies by Christopher Boehm”, American Anthropologist, New Series, 87, 1985,
p. 717.
38. W. I. Miller, Eye for an eye, Cambridge, Cambridge University Press, 2006, p. X, 56,
68-69, 96-97, 101-105. He introduces the concept of negative gift, that even insults are
gifts that need to be repaid : the wrongdoer is the debtor and the avenger is dutybound to repay the debt. Such is, for example, the language used in the Icelandic sagas.
It is the community, and especially the women, who, like Hamlet’s ghost, have the partof reminding the individual of these debts. If a debt is not paid, the prospective avenger
is diminished, meaning that his value as a man becomes smaller as does his honour.
Conversely, the amount of blood money you may get for your dead relative indicates
not only his value but also your value because it shows how much you are feared andrespected.
39. P. Bourdieu, Algeria 1960, Cambridge, Cambridge University Press & Éditions de la
Maison des Sciences de l’Homme, 1979, p. 100-103.
40. L. Abu-Lughod, Veiled Sentiments. Honor and Poetry in a Bedouin Society, Berkeley,
University of California Press, 1986, p. 85-93, 197-207.
41. A. Blok, Honour and Violence, Cambridge, 2001, p. 100-102.
42. B. Holland, Gentlemen's Blood. A History of Dueling from Swords at Dawn to Pistols at Dusk,
New York, Bloomsbury, 2003.
43. R. V. Gould, “Revenge as Sanction and Solidarity Display : An Analysis of Vendettasin Nineteenth-Century Corsica”, American Sociological Review, 65, 2000, p. 682-684.
44. R. Verdier, “Avant-propos”, in Vengeance, R. Verdier (ed.), Paris, Autrement, 2004,
p. 5-7.
45. L. Favali and R. Pateman, Blood, Land and Sex : Legal and Political Pluralism in Eritrea,
Bloomington and Indianapolis, Indiana University Press, 2003, p. 79-104.
46. Ibidem, p. 74-75.
47. S. Makhija, “The Rule of Law : the Khap and the Indian legal pluralism”,
forthcoming ; S. E. Merry, “Human Rights Law and the Demonization of Culture (And
Anthropology Along the Way)”, Political and Legal Anthropology Review, 26, 2003, p. 55-77.
48. S. L. Rubenstein, “On the Importance of Visions among the Amazonian Shuar”,
Current Anthropology, 53, 2012, p. 39-79.
49. J. Comaroff and J. L. Comaroff, “Occult economies and the violence of abstraction :notes from the South African postcolony”, American Ethnologist, 26, 1999, p. 279-303.
50. G. MacCormack, “Formalism, Symbolism and Magic in Early Roman law”, Tijdschrift
voor Rechtsgeschiedenis/Revue d’histoire du droit, 37, 1969, p. 440 et passim. See also
C. Levi-Strauss, The Savage Mind, Chicago, University Of Chicago Press, 1973.
51. F. Boas, The Mind of Primitive Man, New York and London, The Free Press and CollierMacMillan Limited, 1965, p. 20-21, 43, 146-147. In the preface of this edition, originallypublished in 1938, Boas makes explicit reference to the reversal of anthropologicalwriting to support Nazi theories after Hitler’s rise to power (F. Boas, Ibidem, p. 17-18).

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Law and Rationality: A Historiographical Investigation of the Understanding o...

ABSTRACTS
The purpose of this article is to examine how nineteenth-century legal science conceptualized
and dealt with otherness in law, with examples of legal phenomena such as ordeal and blood
revenge to illustrate how the concept of legal rationality evolved in the early legal anthropology
and how it still influences our understanding of legal otherness. It provides new insights on how,in the treatment of specific legal institutions, the ideas of reason and rationality could change as
scholars used European medieval history to aid in the understanding of indigenous cultures.
Cet article se propose d’examiner la manière dont la science juridique du XIXe siècle a conceptualiséet traité l’altérité en droit, en donnant l’exemple de phénomènes juridiques tels que l’ordalie et lavengeance pour illustrer la manière dont le concept de rationalité juridique a évolué au momentdu développement de l’anthropologie juridique et voir comment il influence encore notre
compréhension de l’altérité juridique. Il fournit de nouvelles informations sur la manière dont
les notions de raison et de rationalité pourraient évoluer dans le cadre de l’étude d’institutions
juridiques spécifiques, les érudits utilisant l’histoire médiévale européenne pour faciliter lacompréhension des cultures autochtones.

INDEX
Mots-clés: anthropologie juridique, primitivisme, réalisme juridique, droit indigène,
eurocentrisme, vengeance, vendetta, ordalie
Keywords: legal anthropology, primitivism, legal realism, indigenous law, euro-centrism,
revenge, blood feud, ordeal

AUTHOR
KAIUS TUORIUniversity of Helsinki

Clio@Themis, 15 | 201920