The importance of law in primitive societies
By: Tevfik Kaan Yavru
Tags: Sociology

First of all, a world without law is unthinkable. Since the first societies, the understanding of law and state has always been a necessity. Within the framework of this need, views and beliefs have always been presented. Determining the existence of law in primitive communities will shed light on us. Although some communities have developed in terms of law, some communities have not preferred this way. The part that we will examine are law developed communities and the benefits or harms of this development today. A legal system reflects many aspects of a society; Therefore, an ethnographic study of law is more than a study of judicial institutions. With this review, you will learn about many areas of society.

‘What is law? If law is defined in terms of procedure as Radcliffe-Brown and his adherents define it, “social control through the systematic application of the force of politically organized society” , then not all societies could be said to have law: for example, the Adamanese, the Yurok,and the Ifugao[1]’. As I mentioned, besides the debate about what law is, the status of law in communities is also very controversial. The study of law in primitive communities has also led to discussions on different issues.‘The attempt to distinguish between law and custom revealed a further confusion as to what custom was as well. Whether law and custom were considered one and the same depended upon whether custom meant culture, customary behavior, or social norms-the “ought” or ideal aspects of culture.[2]’‘Locke, would agree that there is law in primitive societies, and a theorist of the second, such as Hobbes, would argue that there is no law without a state political organization. Interestingly enough, Marxian theory takes a divided stand on this question. Lenin denies that law exists in societies without developed government, and Marx and Engels, having been influenced by the American anthropologist Morgan, admit that law does exist in primitive communities.[3]’ While examining these issues, we see that more than one branch of science is working together.‘For as Skolnick 3 has noted, stratification is a theme which

runs through much of the sociological studies-for example, the jury studies, investigations of the legal profession, patterns of selective administration of justice, and the general question of justice in mass society. Furthermore, in their studies of jurimetrics, sociologists, political scientists, and lawyers have again raised the question of the judge’s role in society, the question being, What is the basis of judicial decision making?Certainly this is an area of interest to anthropologists and most would do well to examine Schubert’s Quantitative Analysis of Judicial Behavior as well as his excellent review of the literature. But it still remains true that anthropologists for the most part have had little to do with sociological studies of law.’

The main problem of “primitive law” is whether certain behaviors, at least initially, can be legally separated from general customs in the absence of political organization and private legal institutions such as courts and laws. Malinowski gave one of the important views on this subject. ‘Malinowski correctly envisages the problem, but his functionalism leads him inevitably not only to slight the role which form plays in the identification of legal institutions but almost to identify the legal with the sociological.[1]’ Malinowski’s contributions are not limited to these. ‘Not even all sociological mechanisms, however, are necessarily legal. The functionalist method of interpretation proves far too much. The “binding” nature of an obligation comes finally to depend not only upon social but personal sentiments of approval and disapproval. The legal explorer then becomes lost in the bogs of the psychological theory of law which is based upon the experience of a legal “emotion” with respect to certain relations.[2]’ Malinowski’s argument is based on two distinctions. ‘It is the essence of Malinowski’s theory to distinguish between “binding” custom and “neutral” custom. The binding customs are “law” while the neutral customs are-well, customs. But apparently the only criteria for distinguishing the two classes of customs depend upon the vitality of the interests are involved. The custom is neutral if nobody much cares whether it is observed or not.[3]’.

One of Malinowski’s most important works deals with the violation of primitive law. ‘Malinowski is in many respects entirely opposed to Maine’s views, they really have much in common. Both have a penchant for epigram and system building. Indeed Malinowski’s is the more wilfully brilliant, and has achieved an even greater triumph than Maine in deriving the general from the particular. Malinowski’s work is devoted to only one Melanesian people inhabiting the Trobriand Islands of the northeast coast of New Guinea, but the Trobriand Island material is treated in such a manner as to become virtually a systematic exposition of the whole of primitive law. “Primitive law,” observes Malinowski somewhat too confidently at one point, “is not a homogeneous, perfectly unified body of rules, based upon one principle developed into a consistent system.” In the hands of Malinowski, however, primitive law is shaped into a far more homogeneous system than even the most talented jurists have been able to make of any modern legal system.[4]’ This experiment even caused a radical change in Malinowski’s ideas. ‘Isaac Shapera, the social anthropologist, points out that the concept of law expressed by Malinowski changed over time. Before his experience in the Trobriand Islands, Malinowski’s views on law were similar to the idea of social norms, insofar as he claimed that different types of norms were identifiable through the type of “social” or “collective” sanction with which they were associated. He defined legal norms as the norms that are followed by a direct, organized and defined social action. If these norms did not exist, in other words, the social reaction would be reduced to mere violence, and, on the other hand, without the social reaction the norms could not be defined as having a legal quality.[5]’ Another anthropologist we should examine is Hoebel. ‘Aside from his concern with contemporary jurisprudence, Hoebel’s approach to the study of law can be characterized by at least three major attributes. First, his law is not an autonomous phenomenon separated from its cultural matrix. Hoebel remains true to his anthropological training; he studies various tribes in their total cultural perspective, building, so to speak, his legal specialty upon a solid, broad, ethnographic foundation, of which law is but one of many aspects.[1]’ Second, ‘Second, being at heart a theoretician, he avoided Malinowski’s pitfall, and did not expend most of his energy on an intensive study of one simple culture. His work does not concentrate on the Cheyenne but includes also the Comanches, the Keresan Pueblo Indians, and the Pakistanis, which he has studied in the field, as well as many other societies studied from library sources. The last range from the nomadic Eskimo and Kiowa Indians, including such tribal horticulturalists as the Ifugao, Kalinga, and Trobriand Islanders, and to several state civilizations like the Indonesians and Ashanti. As a result of this endeavor, his Law of Primitive Man constitutes, in Moore’s opinion, one of the two best-known comparative studies on law. It includes and compares systems of peoples of varying complexity and, according to Nader, parallels in importance the famous African? Political Systems.[2]’ Third one is ‘Hoebel is a strong protagonist of a real science of law in that he collects anthropological data and employs empirical methods not simply for descriptive purposes but also for arriving at valid cross-cultural generalizations and a comparative theory of law. In his opinion a true student of anthropology of law may not stop at describing a folk system.[3]’ The Case Study Method, the introduction of the case method of research into anthropology by Llewellyn and Hoebel’s writings had the greatest and most enduring influence on the discipline. This is an important method developed by Hoeble.

At this stage, we need to examine the criteria of law that Hoeble has determined in 3 pieces. ‘Regularity is the first of Hoebel’s three “essential elements of law,” which may be used as criteria in identification of legal phenomena, is “regularity”: law is a social norm. It is a standard for behavior and as such it needs regular application as an “imperative with teeth.” The term “regularity” unfortunately suggests that a criterion of law would be a repetition of a decision, that a law would require two or more trouble cases of the same type for its existence.[4]’ Another one is ‘Official Authority is the second essential attribute of law is “official authority” . In Cheyenne Way, Llewellyn and Hoebel defined authority as a legal characteristic which possesses four elements: the “must element” or an enforceable imperative issued to the members of the group concerning their behavior; the “supremacy element” or the characteristic of authority that must prevail if appealed to in a conflict; the “system element” which means that the described legal characteristic makes the legal phenomenon “part of the going order”; and the “element of officialdom”-a “quality which holds the legal whole and all its parts into the whole order of the group, which it is recognized as representing.[5]” Last one is ‘Sanction is the third, Hoebel’s major criterion of law is sanction. As far as its nature is concerned “the distinctive and ultimate sanction of law is the application of physical force, be it whipping, mutilation, imprisonment, exile or death” . Of course, not every application of physical force is legal: “To be legal the application of physical coercion must have the quality of being applied officially or quasi-officially on behalf of the entire society and with general social acceptance of its legitimacy”.[1]’ ‘Law, characterized and defined by the three “essential elements” has been found by Hoebel applicable to investigated tribal data.[2]’

Hoeble’s opinion on another subject is, Hoebel speculates that those societies “are democratic to the point of anarchy,” there being little need for any suprafamilial authority. If this generalization were taken literally, it would be untenable on the basis of empirical evidence from the most primitive peoples, supplied by such ethnographers as Freuchen, Gusinde, and Graburn.[3]’ Another example in terms of hoeble is, ‘Another characteristic of the embryonic law of this developmental level is almost complete absence of the conceptualization of crime. There is, however, one exception: a repetitive and excessive offender of customs and laws may be beaten or killed by community action. Thus we certainly deal, according to Hoebel, with definite law even on this most primitive level. Consequently, it may be reasonably assumed that Hoebel would agree with the claim that there is no law-less human society in the world, and that most likely there never has been one.[4]’

In conclusion, I agree Halinowski and Hoebel’s ideas and sources. Because it would be a very shallow approach to interpret the law narrowly and say that there was no law in primitive societies. It is undoubted that the work and the way these societies do will shed light on the present and provide our development. Hoeble’s work helps us more in this context. By following these studies, we should examine the ancient societies in more detail. Law is a field that originated in ancient centuries and has continued to evolve ever since. Ignoring the work and developments in previous years is, in my opinion, ignoring the law.