Comparative Criminal Law and Enforcement: Preliterate Societies

Preliterate societies do not constitute a single type of society but a whole assortment of societies. Just as most people speak about English, Russian, or Chinese Law, an anthropologist might speak about Tongan, Tiv, or Zapotec law. Any study of criminal law in preliterate societies must take this diversity into account. The comparative perspective, however, need not stress only the differences among preliterate societies, or between preliterate societies and our own, but may uncover similarities as well. The inhabitants of Mexican mountain villages are generally peaceful, whereas New Guinea highland communities tend to be warlike. Melanesians settle most of their disputes through negotiation, and so do Americans. Both the Lenje of Zambia and the Japanese stress restitution.

However, Western concepts present difficulties. The concept of crime, for example, an idea related to the development of the state, becomes problematic when applied cross-culturally in societies with little or no government. The world of preliterate and literate societies presents rich contexts in which to examine the problem of universal categories.

Early studies. Nineteenth-century anthropologists interested in preliterate law were armchair speculators who first investigated the differences between Western and non-Western law. Some theorists, such as Emile Durkheim, described primitive law as penal and repressive in contrast with that of more advanced and specialized societies, which generally used restitutive sanctions. Others, like Leonard Hobhouse, challenged that distinction, arguing instead that as human societies become more advanced, their legal systems progress from a reliance on self-redress to formal sanctions of punishment or restitution.

Later generations of anthropologists studied societies through firsthand fieldwork, which revealed that the models developed by armchair anthropologists were either oversimplified or wrong. These "newer" anthropologists were struck by the wide diversity in social organization and attempted to understand and then explain the ways in which different societies manage the serious wrongs that might endanger peace and security in what appeared to be bounded societies.

The most powerful break with the past was made by Bronislaw Malinowski, a field observer of the first rank who used his detailed observations to destroy widespread law-and-order myths about preliterate peoples. In Crime and Custom in Savage Society (1926) he argued persuasively that people do not automatically conform to rules of conduct in what were then called the "simpler societies": positive inducements were as important as sanctions in inducing social conformity. Malinowski also called attention to the important connection between social control and social relations, an idea that foreshadowed a generation of anthropological research on how peace could be achieved in societies lacking in central authority, codes, courts, and constables. His definition of crime was "the law broken." Precision in definition defied Malinowski, who wrote that crime in Trobriand societies could be only vaguely defined as an "outburst of passion, sometimes the breach of a definite taboo, sometimes an attempt on person or property (murder, theft, assault), sometimes an indulgence in too high ambitions or wealth, not sanctioned by tradition, in conflict with the prerogatives of the chief or some notable" (p. 99).

A. R. Radcliffe-Brown, a contemporary of Malinowski, was more jurisprudential. In 1933 he made use of Roscoe Pound's definition of law as "social control through the systematic application of the force of politically organized society" (p. 202). Radcliffe-Brown had studied the Andaman Islanders of the Bay of Bengal, a people he described as without any law at all. By defining law in terms of organized legal sanctions, Radcliffe-Brown concluded that in some simpler societies there is no law. He did not find terms such as civil law and criminal law useful in analyzing data from other societies; instead, he observed a distinction between public law (which made use of penal or repressive sanctions) and private law (which emphasized restitutive sanctions). Like Malinowksi, Radcliffe-Brown viewed crimes as acts that engender a collective feeling of moral indignation.

Modern approaches. Today most anthropologists of law do not define crime, nor do they attempt to impose such distinctions as those between crime, tort, delict, sin, and immorality on their data. Boundaries are porous. Hardly any anthropologist would accept as valid the distinction between public and private law. Distinctions are discussed, but anthropologists increasingly report data without attempting to categorize them in terms of Western legal thought (unless Western implants are at issue); instead they adopt, for purposes of analysis, the categories used by the people studied or of the social scientist, and eschew attempts to define crime in a universal manner.

Diverse concepts of crime. Antisocial conduct is a universal aspect of group life, but the forms it takes and the reactions it provokes vary. In some societies today infanticide, cannibalism, theft, or the selling of products known to be harmful fall in the area of conduct approved by authorities, but standards of good and bad behavior are not constant over time. Records covering the Tswana peoples of Africa over a hundred-year period indicate not only that "crimes" are in a state of flux but also that crime is not necessarily disapproved of by all members of society. In one example, Isaac Schapera observed that a "civil" wrong was treated as such by one chief, made a "penal" offense by another, and denied legal recognition by a third. Notions of specific wrongs may be internalized by and reflect the behavioral norms of a group, or they may be ordered from above. Schapera's study indicates that native law is not static and that it was founded on deliberate enactment as well as custom.

Since there are no wrongs that are universal to preliterate societies and no behavior that is bad in itself, the nature of an act alone cannot be used to determine its social or legal meaning. For the Ontong Javanese, as for many societies, killing kin is murder and killing non-kin is not. Among the Tiv of Nigeria, killing thieves or witches may be permissible.

The relationship of the parties concerned may determine whether an act is regarded as a crime. For the Kapauku of New Guinea, intraconfederacy killing is murder, whereas killing outside the confederacy is warfare if approved by the elders; otherwise, starting a war is a crime punishable by death. In New Guinea an offense is defined more by social context than by the nature of the act; there are no broad distinctions between types of offenses, and opinions about what constitutes the "same" crime vary widely from group to group or among individuals in a group. Among the Kipsigi of Kenya the same offense will meet with different consequences according to political differences between the opposing parties.

The task of discovering factors that determine the seriousness of an act has encouraged a relativistic approach, since categories in some societies may bear no resemblance to standard Western ones. There is, for example, no special Lozi term for crime, although Max Gluckman (1965, p. 4) reports a distinction between wrong and great wrong. The Tiv rank acts by their social consequences, the most serious being incest, homicide, and sometimes adultery. The Yakan of the Philippines distinguish between wrongs that can lead to disputes, and wrongs against God (or moral wrongs), which do not bring legal consequences to the offender. Among the Jalé, now of Irian Jaya, intention is less important than consequence in defining an act as an offense. Attempted murder is not a crime since it inflicts no harm, but if a woman dies in childbirth the husband is as responsible for the death (since he impregnated her) as is a man who kills another in a fight. Among the Zinacantecan of southern Mexico, circumstances surrounding an offense are crucial; if an offense is committed when the offender is not under the influence of alcohol, or is a repeated offense, the act is considered serious enough to require punishment as well as the compensation sufficient for lesser offenses.

Radcliffe-Brown's distinction between public and private law has not been useful for modern anthropologists because of the difficulty in determining whether an offense is against the individual or the society, as Karl Llewellyn and E. Adamson Hoebel have shown with regard to Cheyenne society. Often it is both.

Diverse concepts of punishment. Early notions about sanctions in preliterate societies are not supported by data. Durkheim's theory that repressive and penal law characterizes the "inferior societies" is incorrect. Indeed, restitution plays a predominant role in face-to-face societies. Restitution is the process whereby money or services are paid by the offender or the offender's family to the victim or the victim's family: it may be paid in kind (a life for a life) or in equivalence (a wife for a life). There are various forms of liability: absolute and contingent, collective and individual. Klaus-Friedrich Koch has proposed that the distinction between absolute and contingent (relative) liability depends upon the availability of third parties to facilitate a case. Without formal governmental control in indigenous third-party mechanisms, liability will be absolute. Similarly, collective responsibility is likely to prevail where decent groups are the primary units in social organization.

Among the Berbers of the Atlas Mountains of Morocco, restitution follows a pattern of collective and contingent liability. After an act of physical aggression, the culprit and his close kinsmen escape to a sanctuary provided by religious leaders for a cooling-off period, which is then followed by a period of mediated negotiation between the victim's group and that of the offender. Compromises usually recognize degrees of seriousness of the act and the status of the victim; the higher the victim's status, the greater the restitution. The Egyptian bedouin of the western desert regard the consequence of the act and the status of both parties as the primary determinants of the amount of restitution. The Ifugao of northern Luzon recognize a scale of payment that varies according to the social position of the injured party and the offender; higher payments accompany higher positions.

The reparation process may function as a deterrent, since the process implicates kin groups on both sides. Once a reparation has been agreed on, the victim is often urged to avoid further conflict with the offender so as not to forfeit the kin's right to compensation, and the members of the offender's group usually have a vested interest in keeping him in line because they are paying for his actions. The threat of a mutually destructive feud gives added incentive to abide by the agreement. However, a society that uses restitution as a strategy may also use retaliation, raids, property seizures, and fines. Retaliative sanctions are systematized through rules governing how the injured party may strike back and how much the injured parties should demand for righting a wrong or punishing an individual.

Restitution can be found in societies both with and without formalized political systems. Even societies without centralized systems—the Yurok of California, the Ifugao of Luzon, or the bedouin of Egypt—can have very sophisticated, even if unwritten, indemnity codes. Such substantive law can develop independently of legal procedures, courts and complex political organization. On the other hand, people can have a formal court system and not use it. In Japan restitution is settled almost entirely extrajudicially, by agreements between victim and offender.

Finally, restitution is used sparingly in preliterate societies, most often in cases of murder, theft, debt, adultery, and property damage. The restitutive sanction, whether collective or individual, restores social equilibrium by addressing the needs of the victim or the victim's kin, by restating social values, and by providing a means for reintegrating the offender into the mainstream without too much stigma. Among the Valley Zapotec of Mexico, who follow both village and state law, the process of reintegration into the village begins after offender's release from jail. This process entails a gradual resumption of relationships between offender and community by means of material and interpersonal exchanges. By Zapotec definition, ex-offenders build up social relationships by exchange as a means of removing stigma. The Zapotec do not keep the deviant permanently on the margin of society but reintegrate him through the resumption of social interchange and through a "collective amnesia," which serves to deny that the crime ever occurred in the first place.

Habitual misbehavior is considered more threatening than single offenses in preliterate as in complex societies. The custom of group lynching among the Kamba of East Africa was reserved for habitual thieves or sorcerers. These community killings involved no blood guilt but did require consent of an offender's nearest relatives. The Tiv are critical of Nigerian state law, which punishes single murders harshly while denying the community the right to execute habitual offenders for behavior that the Tiv see as more dangerous. The Tiv judge a person's general behavior, rather than a specific wrong.

Social control and the state. The evolution of the state and the growth of governmental machinery for regulating social relations provided the political context for the development of penal criminal law. In large and complex societies, in which social differentiation is great and conflicting values are juxtaposed, a small number of people representing powerful interests often define what the law will call criminal. The criminal act becomes an act against the state. As the initiator of third-party hearings, the offended merely becomes the victim, and loses the important status of plaintiff.

With the emergence of the state, there is an increasing reliance on penal sanctions to deter antisocial behavior. In preliterate or prestate societies the legal sanction, whether penal or restitutive, represents only one means of enforcing conformity to norms. Control mechanisms such as sorcery and suicide, which had often been labeled as criminal behavior by Western observers, were seen by Malinowski as legal and socially rehabilitative mechanisms—behaviors that supported the preliterate social order. Beatrice Whiting's work on Paiute Indians reported that sorcery was found in societies with decentralized political systems, and she argued that sorcery is an important mechanism of social control in decentralized systems. A study of purely criminal law among preliterate peoples misses just such important phenomena of their legal life.

Radcliffe-Brown argued that in preliterate societies there is a close connection between religious behavior and the sanctions of criminal law. In fact, supernatural sanctions may be more threatening to an offender than physical retaliation against him or material compensation to his victim, because they are so vague and unpredictable. Public shame and ridicule or the sanction of supernaturally imposed sickness both constitute a means for societal regulation. When formalized legal sanctions coexist with less formal controls, the latter have often been more effective in restraining disruptive social conduct and strengthening the cohesion of social relations. It is important to realize that courts, police, and the like are not necessary to achieve order in societies where there is a wide range of checks on human conduct that are functionally equivalent to enforcement agencies in state societies. Among the eighteenth-century Iroquois, for example, theft and vandalism were almost unknown. Public opinion in the form of gossip and ridicule was sufficient to deter most members of the tribe from such property crimes.