Law and Justice in Primitive Societies

Law is a cultural universal. It is a social norm. If it is violated society takes appropriate steps to take action against the violator.

What is law?

• According to Radcliffe Brown “law is social control through the systematic application of the force of politically organized society”. By law   then, Brown meant a specific way of enforcing rules, In his view” simple societies have no law , although all have customs which are supported by sanctions” (1952: “Primitive Law” in Encyclopedia).
• Malinowski in his text Crime and Custom in savage Society (1926) argued that rules of law are distinguished from rules of custom in that “they are regarded as the obligations of one person and the rightful claim of another, sanctioned not by mere psychological motive but by definite social machinery of binding force based upon mutual dependence” .
• Hoebel says, “A norm is legal, if its neglect is regularly met in threat or by application of physical force by an individual or group possessing the socially recognized privilege of society”,
• According to Glickman primitive societies have “rules of law” but not “legal rules. He calls such societies a – legal. These – legal rules have been called by Brown as jural.

Whether it is an advanced society with “legal rules” or a primitive society with “rules of law”, does not matter; the rules of all societies are the same. They safeguard life and limb, rights in wives and rights in property. So justice means giving people their rights rather than enforcing laws and this is somewhere in peoples mines when they contrast justice and legality.

Primitive Law:

Primitive law is based on usages, customs, sanctions etc. Here “custom is king”.

• Lowie says that kinship is the basis of primitive law and primitive law is very much similar to moral principles and public opinion.
• Lowie also says that primitive law does not distinguish between private and public wrongs, between crimes and torts, when responsibility for initiating a legal action against a wrong does rests not with the kinsmen, but in the hands of a headman, a chief or a shaman, then the offence is a public wrong.
• According to Brown (1952: 212-217) primitive law invariably includes two types of sanctions: the restitutive and the penal sanctions, A restitutive sanction is a requirement that one individual (the defendant) must make payment to the other individual (the plaintiff) in the dispute, The use of a restitutive sanction defers a case as being an example of the law of private delicts. Modern jurisprudence would classify such actions as cases of civil law. Actions treated as private delicts include homicide, wounding, theft, adultery and failure to pay debts, a penal sanction, on the other hand, is a punishment inflicted upon an individual who is responsible for violating a rule of conduct. The use of a penal sanction defines a legal case as being an example of the law of public delicts. Modern law defines such actions as cases of criminal law. Actions treated as public delicts include incest, sorcery and sacrilege.
• According to Hoebel, (Cheynneway), Barton (ifugas law), Bohannan (Tiv) Epstein(Matupit) and Posphil (Kapauku) primitive law is not associated with legislative, judiciary and executive processes. They argue that the community looks after the primitive law, kinship bonds comprise the basis of law and collective responsibility is associated with it. Intention is not recognized in primitive law. Further, there are no grades of punishment. Police force and law courts are absent. There are no prison institutions in primitive societies. Punishments vary from natural ones to supernatural ones.

Functions of Law:

1. Law performs four fundamental functions essential to the maintenance of societies and cultures. They are: substantive, adjective, readapted and meditative in quality.
2. Law defines relationships among the members of a society and determines proper activities of individuals and groups within a society (substantive).
3. Law allocates authority to employ force in the enforcement of sanctions and achievement of goals (adjective)
4. Law redefines social relations and insures social flexibility (readaptive)
5. Law settles trouble cases as they arise and help everyday living with reasonable certainty and security (meditative).

Justice in Primitive Societies:

Justice means giving people their rights . In primitive societies it is very simple – Legal action and the passing of claims may take place in the direct confrontation of the parties concerned in an entirely informal situation

Primitive justice establishes guilt on the basis of evidence, In this context it resorts to supernatural devices such as divination, conditional cense, oath and ordeal.

• Divination is the process of evoking knowledge of some secret by manipulative techniques. Thus, an Eskimo shaman searches out answers by inducing a supernatural spirit into an object. The Azande of Africa fed poison to a chechin, declaring repeatedly, “if this change be true, let the Chechin die; if this change is false, spare its life”.
• Conditional cense enters a judicial procedure among almost all peoples. it is the assertion that always implies the sentence, “if what I say is not true, then may the supernatural destroy me”. Even modern courts do not rely wholly upon laws against perjury, since every witness must first swear a conditional cause by touching a holy book.
• Ordeal is common in many primitive societies, The persons accused are put to torture before the declaration of the judgment, In Ashanti, the defendant in a trial could drink a poison brew. If the defendant vomited the verdict was innocent; if he did not vomit, death was the result, And that is proof enough for any person.
• Oath is merely a formal declaration that the testimony given is true, it may or may not imply the sanction of a supernatural power against falsehood. Often it is accompanied by a ritual act, such as touching the pipe to the lips or touching an arrow laid across the bones of a buffalo skull as among the Red Indians.
• Extortions by confessions by third-degree methods occur in a few societies. For example, a Comanche husband could choke his wife or hold her over a fire until she named her lover.
• Punishments are in several forms. Punishment is normally eye for eye, murder for murder. Nuer serves as a good example of this. Imposition of fines is common. Compensation or restitution is also often resorted to payment is usually in the form of animals, material goods, money or some other type of wealth if payment is not made, the authority concerned may use physical force. The custom of pay compensation is called wergild in most primitive societies there are provisions for mutilation which often result in the death of the culprit. For simple offences,- fines are imposed which are paid by way of compensation to the aggrieved party. The accused, very often, has to give a ritual feast to the whole village in compensation for his crime.

Conclusion:

From the above discussion of the primitive law, it is clear that the primitive law is beyond naturally knowing’s and blindfolded, AS primitive law depends on public opinion, moral principles and religions beliefs and sometimes, disobedience to law is not only a crime but also a sin. if an offender is not punished for his offence, it is supposed that supernatural powers would punish him for his sins and sometimes the members of his family or his kin-group are victimized by the wrath of the supernatural powers along with him. All relations among the primitives are natural. Every person knows that if he wants to be treated well by others, he showed also treat them well, in this way their duties are reciprocal and it becomes the religious duty of everyone to fulfill them. This is why order prevails even in an acephalous society like that of the Nuer. The solidarity established in such societies is so automatic that French social scientist Emile Durkheim called it “mechanical solidarity”.

Justice in primitive societies:

Like other social institutions one finds a rudimentary system of providing justice in primitive societies. The organization for provision of justice is vague and lacks the complex structure found in modern societies.

The rudimentary organization of justice in primitive society is due to the fact that the society is a simple and small group based upon kinship relationships. Here, face to face relations generally followed due to the fear of public opinion. Since a primitive society is generally a little community where each one knows everyone else and everyone has to pass his life in other’s contact , social mockery is the biggest punishment , Therefore the entire primitive system of social justice is very much facilitated due to the effectiveness of public opinion.

 Establishment of guilt is always important for the administration of the justice. In the simplest societies, the judges are the people themselves. A judge may be an elderly kinsman or a headman.

The various ways in which justice can be delivered is as follows:-

From the above discussion of the system of justice and punishment in tribal societies it is clear that they exhibit almost all elements of the system of justice in rudimentary from, Primitive- form of justice is a more humane and better measure for the prevention of crime.  In its absence crime increases both in quality and quantity with the growth of civilization.