Primitive Society and the traditional customary law

Law is a cultural universal. It is a social norm. if it is violated society takes appropriate measures to take action against the violator.
Laws in the primitive societies are typically the unwritten laws; there is neither any court nor any codified body of law. Further, these laws vary from society to society. Every society has its own specified customs and conventions, which comply with the norms of the respective society.

Nature of Primitive Law:

Kinship bond is the basis of primitive law. It is this kinship bond, which keeps the different members of primitive society united; it does not require a territorial relation. As a matter of fact, kinship bond is more important in a primitive social organization than the residence at one place

The other main basis of primitive law is public opinion, Most of the problems of primitive society are solved through public opinions, since a primitive society is small , it is easy to know the opinions of all the members about a particular matter, Individuals are often known to one another and public opinion is generally the correct judgment.

What a police force cannot do in a civilized society, is one in a primitive society by itself because in a primitive society, morality and law are not different things, Besides this, in a primitive society , an individual has no power when separated from the group nor does he possess any moral view of his own. Therefore, it becomes necessary to obey the rules of the society.

Since, in a primitive society, law does not depend on territory, an offence instead of being a wrong act against the state is a wrong act against an individual. The individual offended is ‘somebody’s kin and so is the offender the kins of the individual offended avenge themselves on the offender and his kin.

It is a common belief in most of the primitive societies that if heinous crime by society as a whole, are not punished by society, the whole society is punished by supernatural powers. They therefore keep an eye on such crimes, and the moment they are detected, the offenders are severely punished.

In a primitive society whatever may be the intention of the offender he cannot escape punishment for his misbehavior more attention is paid to the crime than to the intention.

There is collective responsibility behind primitive law because it rests on the principle of kinship bond.

The judges in primitive societies are form among the kins of the offender. The village associations decide the criminal cases and there is always a representative of every kin group of the tribe in every village association, where decisions are taken in criminal cases by the chieftains of primitive societies, there even most of the chieftains give judgments only after due consultations with the family chiefs., village chiefs or with the representatives of the kin-group

The following two kinds of evidences are called in for deciding criminal cases in primitive societies

Oath – The offender has to take an oath and then he is asked to state whether he has committed the offence or not. It has generally believed that, if the offender tells a lie, he falls a prey to the super-natural anger for taking the false oath.
Ordeal – Sometimes the persons accused are put to torture in primitive societies before the declaration of judgment in criminal cases, if the accused persons escape without injury, they are acquitted as they are supposed to be non-guilty. Accused persons escape without injury; they are acquitted as they are supposed to be non-guilty. asked to put his hand in boiling water or oil; and if he can do so without causing an injury to his person, he is set free But , if his hand gets burnt, he is believed to have committed the said crime ,the belief behind this kind of treatment is that the super-natural powers help an innocent person and therefore his hand, even when it is put in boiling water or oil , does not get burnt.

Punishment:

There are no prison institutions in primitive societies. In most of the primitive societies there are provisions for mutilation, which often result in the death of the culprit. Capital sentence is generally given in case of homicide, but sometimes the death punishment is given to one of his family members or to one of his kin instead of inflicting it upon the person who has actually committed homicide.

In primitive societies all the persons, – who have committed a similar crime, are not punished in a similar manner. The same crime may be differently punished according to who have been wronged, The misbehavior done to an ordinary individual is lightly punished, while the same behavior done to chieftain is punished severely

The punishment of imposing a fine is not found among, the punishment for crimes in primitive societies. Where fines are charged in primitive society, they are paid in a way of compensation to the aggrieved party. The accused, very often, has to give a feast to the whole village in compensation for his crime.

From the above discussion on primitive law, it is clear that the primitive law is obeyed naturally, knowingly and blind folded. As primitive law depends on public opinion, moral principles and religious sanctions disobedience to law is not only a crime but also a sin if an offender is not punished for his offence. All relations among primitives are natural. Every person knows that if he wants to be treated well by others, he should also treat them well. In this. Way their duties are reciprocal and it becomes the religious duty of everyone to fulfill them.

Sources of Primitive Law:

Law is universal. Law exists in every society but in primitive society it is unwritten. Everywhere what is just and right is considered as a law.

Customs – Like the civilized societies, the primitive societies also have laws of one kind or the other to regulate their individual and social life. Social custom is the most important source of law. Laws in a primitive society have their origin in social customs, the people who have adopted useful behaviors in social life are regarded as good. The people, while those who behave in an opposite manner are considered to be bad people. This helps people to adopt those behaviors, which later on take the shape of social customs. These social customs are handed over from one Generation to another and the traditions thus go on forming. When a social custom is approved and its breach is considered punishable by a tribal organization, the custom becomes a social law. In this way, most of the laws in primitive societies have their source in custom.
Social Organization – Generally, there is. a social organization in every primitive society. In most of the social organizations, the chieftain or the leader holds the highest position and keeps a control over the society members. Sufficient powers are given to this chieftain, although he is not allowed to do anything against the interest of the tribe as a whole, in most of the cases , the order of the chieftain .is law and every man and woman has to obey it .
Public Opinion- Public opinion is very important in a primitive organization. An individual can even be punished in doing something against the public opinion , in this way , it is the public opinion , which controls the actions of men and women in the form of law.

Thus, characteristics of Primitive Law:

Primitive law is conceived largely in terms of kinship rather than in territorial terms i .e., socio-political organization is based more on kinship ties.
Primitive law coincides more closely with ethical notions, hence, the public opinion of the people in question i .e., public opinion in primitive societies originate from the moral and ethical notions of the concerned. Hence , in primitive societies public opinion is more- useful
It fails to discriminate public, and private wrongs in the crimes as in the modern tents of justice .
Primitive law is pre-dominantly a criminal law (law relating to criminal offences) . The scope for civil law (law relating to ordinary private matters) is primitive societies is limited.
Everybody in primitive society is a representative.
Sin and supernatural punishment are associated with primitive law.
Intention is not recognized in primitive law.
The main characteristic feature of the primitive law is the kinship tie and the collective responsibility of kin. When there is no state, each kin group has to depend, and protect its members, without collective responsibility it is difficult to defend people.
Evidence in giving justice in primitive societies is of two ways:
1. Ordeal :The accused is asked, to go through ordeals “like putting hand in boiled water or oil etc. If the accused escapes without any injury he is considered not guilty,
2. Oath’ is administered in the name of God.
Punishment in primitive societies is normally eye for eye, murder for murder.
Primitive law is not associated with legislative, executive and judiciary processes.
In primitive law there is no police force and law courts.
Religion – Religion is also part of life in primitive societies , The compliance of the rules and regulations connected with the names of deities is as compulsory as that of law and generally none dares to disobey them.
Panchayat’s – Some tribes have social panchayats, which keep control over the individuals of a society and settle their mutual disputes , The decision of the Panchayat is regarded as. Law and an accused is punished for disobeying it.

In this way, social customs, orders of the chieftain, religious rules and the decisions of a Panchayat etc. are the sources of law in primitive societies.