Comparative Criminal Law and Enforcement: Preliterate Societies

Order and disorder. Theories have been proposed to explain the relation between modes of production and the organization of social controls. For example, a number of anthropologists observed that hunters and gatherers do not develop means for adjudicating disputes, but rather for avoidance of disputes. Order and disorder are present in both small and large societies. For this reason, the presence or absence of order (however one measures order) is not easily explained by theories of size, means of livelihood, or ecology. Although understanding diversity in relation to law is crucial to understanding prestate societies as a group, law as it relates to order can never be comprehended by universal rules of evidence outside the context of the particular society that houses this law.

A productive approach to an examination of order and disorder is to analyze the influence of social organization. Most ethnographic studies of a specific society describe how relationships or institutions function to coordinate social activities or to organize social relations, or they describe how the society is disordered by just such factors. In the social organization of the Mexican Zapotec town of Talea, the binding force of reciprocity and the principles of social organization provide systematic ordering (Nader). The ties that link citizens are those of kinship, locale, common work interests, friendships, and shared obligations and values. Three dimensions of Talean social organization best indicate the manner in which principles of social and cultural control operate outside of governmental organization.

First, in Talea all groups, whether kinship, governmental, or religious, are organized hierarchically according to sex, age, wealth, or experience. Second, a value is placed on symmetry (a term that translates as equality only in some contexts), which serves to level relationships. Such leveling mechanisms as those that redistribute wealth from the rich to the poor mediate the harsher aspects of hierarchy but do not sabotage the virtues of superordinate-subordinate relationships. The third dimension of Talean social organization brings people together as groups or as individuals, and at the same time divides them by linking some of them with different groups. These three dimensions stratify, level, and integrate the town: they reinforce hierarchy and symmetry by buttressing traditional and changing values, and they strengthen the linkages by ensuring the presence of third parties in case of dispute. Asymmetry is both unappealing and dangerous; it is often the underlying cause of envy, witchcraft accusations, and court disputes. The integrative links between individuals and groups provide a safety valve and with the aid of harmony ideology cool most disputes before excessive pressure builds up.

The Taleans are therefore a relatively peaceful people, unlike their neighbors in the mountains, the people of Yalalag, who have a high annual rate of violent killings. Yalalag, divided into two traditionally opposed parts, each with its own leaders, illustrates that without social and cultural principles that link groups together, discourse in the peaceful settlement of disputes does not develop. Although Talea and Yalalag are similar in cultural history, size, ecology, and economy, differences in social organization have produced different means for managing problems and disputes. The Taleans tend to use third-party mechanisms and coercive harmony, whereas the people of Yalalag use self-help tactics such as assault, battery, and killing.

The social correlates of relatively violent or peaceful societies have been the subject of extensive research. For example, studies on preliterate societies have correlated place of residence after marriage with the management of conflict. H. U. E. Thoden van Velzen and W. Van Wetering have examined the question of residence and violence cross-culturally and have found a consistent relationship between the predominant use of passive means of managing conflict, and the use of matrilocal residency rules, which locate married couples with maternal relatives. They also recognized the relationships between residence with the paternal relatives of the group, the development of mutually exclusive fraternal interest groups, and the frequent use of physical violence among males within such societies.

Koch found a relationship between patrilocality and the use of physical violence in the Jalé society of western New Guinea (Irian Jaya). In the New Guinea highlands most disputes are of the intermunicipal sort, like contemporary international conflicts in which a sovereign power does not exist. The Jalé are a farming people who live in villages divided into two or more wards. The wards form the principal war-making units in intravillage and intervillage conflicts. There are no political and judicial offices, and thus self-help—often in the form of violent retaliation—is an institutionalized method of resolving conflicts when negotiation fails.

A number of problems are evident in Jalé conflict management. The first is the snowball effect of inadequate procedures to deal with grievances: if there are no authorities capable of settling conflicts, even minor disagreements may escalate into war between whole villages. A second is the potential of every retaliation to generate new troubles. Brakes are provided by kinship and residence, but these are not strong enough to prevent escalation in any particular conflict. Such observations support the proposition that both the style of conflict resolution and the occurrence of conflict derive from a society's principles of human association.

The factor of early environment. A cross-cultural study of the correlates of crime by the psychologists Margaret Bacon, Irvin Child, and Herbert Barry examined the frequency of theft and personal crimes (defined to include assault, rape, suicide, sorcery, murder, and making false accusation) in forty-eight preliterate societies. They found that both types of offense are more frequent in societies having polygymous mother-child households than in those societies with monogamous, nuclear households.

Whiting expanded on this work and examined the idea associating household organization and conflict frequencies in six cultures. Her study combined social, structural, and psychological variables to test this hypothesis: If, during the first two or three years of life, a boy is frequently with the mother and only infrequently with the father, he will identify strongly with his mother; if, later in life, he is living in a world dominated by men, he will face internal conflict, which may lead to attempts to prove his masculinity. The "masculine protest hypothesis" was concerned with the sex identity conflict theory: where the father has less importance in infancy and where men have higher prestige and salience from childhood on, violence becomes an expression of "protest masculinity," as among the Gusii of Kenya or the Khalapur Rajput of India.

Witchcraft in preliterate societies. Like killing, the act of sorcery or witchcraft is not necessarily a wrong; rather, it depends for its cultural meaning on the context and locus of the action and on who is involved. Furthermore, in many societies there is no division between the natural and the supernatural. For the Mexican Zinacantecans, earthly conflicts are only manifestations of conflicts between supernatural beings and people, often expressed by means of witchcraft. The Kapauku of New Guinea consider killing by arrow, by sorcery, or by forced violation of food taboos to be identical crimes, since all are attacks on people. The Gwembe Tonga of Zambia treat poisoning and sorcery in the same manner; the Tonga reason that they are functionally identical, since both are covert attacks that make people fall sick. The Barotse and Gisu of Zambia and Kenya and the Sepik of Melanesia believe that no death or illness is entirely natural. Each death brings the question, "Who has caused this?"

In witchcraft societies people usually fear sorcery, although not everyone condemns it. At times sorcery is condemned, but sorcerers are not punished. The Sepik rarely accuse anyone of sorcery, because they fear reprisals from evil spirits. Among the Gisu, a sorcerer will be killed if the whole community agrees to the killing. In many societies sorcery was formerly sanctioned by death, but today this penalty is considered illegal under state law, and, indeed, such traditional punishment is now defined as murder by some national legal systems.

The identity of the initiator of witchcraft is important, especially since witchcraft itself is frequently inferred from death or sickness rather than directly observed. Among the Azande of the Sudan, people accused of witchcraft are usually those whom people in the community already had cause to hate. Women can be vulnerable to charges of witchcraft in partrilineal societies, where they are seen both as outsiders and as a divisive force. Men may or may not accuse lineage members, depending on whether rivalry or solidarity is paramount.

Some have examined witchcraft as an index to social disorder. Agricultural, rather than pastoral, communities tend to have witchcraft outbreaks as a response to overpopulation, scarcities, or inequalities. Witchcraft in such settings allows people an excuse to leave the community either because they have been accused or because they are afraid of being witched (Colson). Gluckman connected the witchcraft out-break of 1957–1958 among the Barotse with societal strain caused by the young going off to work and bringing back money, which resulted in loss of prestige by powerful tribal elders. The accusations of witchcraft in this instance were by the young against the old. Waves of witchcraft accusations may be connected with changing times, as among the Barotse; with stress and periods of unrest, as among the Tonga; and with the absence of centralized political machinery, as among the Paiutes of the United States. During Great Britain's colonial period, the use of witchcraft by indigenous peoples led to heated debates among British administrators, who were called upon to maintain the native customary law according to their policy of indirect rule, which incorporated indigenous law.