Comparative Criminal Law and Enforcement: Preliterate Societies

Most stereotypes of preliterate societies have not withstood the empirical test. Preliterate societies, like modern ones, support various, and sometimes contradictory, systems of rules. Adjectives that apply to the law of some African societies—communal, restitutive, cloaked with magic-religious beliefs—do not apply to the Australian aborigines, the Plains Indians of North America, or other societies that may be more individualistic and dominated by consensual, rather than litigious, thinking in relation to law.

One can no longer argue that small, face-to-face societies are more peaceful or that large and complex societies, where relations between strangers predominate, are more naturally crime-prone. It is not true that preliterate societies use negotiation to the exclusion of arbitration or mediation, or that industrial societies use adjudication to the exclusion of negotiation. Collective liability is as much a part of the thinking of contemporary insurance companies as it is of traditional Berbers. Preliterate law may be flexible and highly effective or highly unpredictable and destructive because of the absence of formalized controls. There are wide differences in the degree to which societal wrongs are recognized and punished. Research on exogamy rules (patterns of marrying outside the group) has revealed that official sanctions vary from one society to another in response to violation of these rules and include death, fines, beating, banishment, and invoking the disapproval of supernatural forces.

The rare attempts by anthropologists to define the nature of "primitive" crime have frequently placed undue emphasis on categories drawn from Western cultures. Although few efforts have been made to produce a definition of crime that can be applied cross-culturally, it seems clear that the results of norm violations across cultures are loss of status and change in social position. The development of a cross-cultural understanding of "crime" may lie in the study of those normative violations that consistently result in downward change in the social rank for the violator. Such patterns will vary in meaning with authority structures that may be consensual or authoritarian. In preliterate societies the numerous combinations of structures provide means for preventing the escalation of conflicts, and yet they also generate interconnecting systems of behavior in the domains of kinship, economics, politics, and law that give the air of suitability to acts which, to the Western mind, may appear deviant.

Essentially, similarities in social structure and culture will produce similarities in criminal offenses and in the management of such offenses. In small-scale settings, where people know one another and share a broad range of personal ties, there is a special kind of indirect social control that is absent from, or almost inoperative in, settings where anonymity functions as an escape from the controls of kin and neighbor. In this second setting, criminal offenses are increasingly a result of the interaction between people who do not know one another. In the West, such offenses are met directly with sanctions that are likely to be repressive and penal rather than restitutive. Gluckman has noted that the range of relevance is narrow in cases involving strangers and broad in those involving kinsmen. A dispute between two parties who are strangers need not end in reconciliation, but rather can be adjudicated and end in a clear decision. Changes in relationships between disputants and population movements accompany modernization processes. With development new states use transplant law to monopolize the legitimate use of violence and social control in general. Other systems of control either cease to be important, in which case there is increased dependence on police enforcement, or they compete with imported law. In other words, political encapsulation brings into contact different systems of right and wrong and different ideas about who is a wrong doer and how to treat them.