Comparative Criminal Law and Enforcement: Preliterate Societies

Surviving preliterate societies are increasingly being encapsulated by the modern bureaucratic state, a process that began under colonial governments and has developed further under conditions of independence. Creating central administrations has had a pervasive influence on local communities by acting as a brake on inter-village hostilities. Elizabeth Colson reports that before becoming subjects of the British colonial administration, the Valley and Plateau Tonga of Zambia lived in fear of intervillage raids. Of course, the fear of violence in such societies led to avoiding and preventing violence, but where insecurity was common, colonial governments may have been welcomed as allies.

On the other hand, political encapsulation forces collision and collusion. The Indonesian state and Papua New Guinea entered into economic development by invading indigenous territory, whereby local people became trespassers on their own land. Resisters are considered criminals. In addition, encapsulation may establish "insider-outsider" distinctions that were absent prior to the introduction of modern politics, and may open opportunities for those who see an advantage in using violence. Power is now an issue. Among the Maya Indians of Guatemala, an encroaching Guatemalan state system has been associated with the disintegration of village leadership and with increased resort to homicide for the management of problems and disputes in the community. Alternatives to, and controls over, the use of physical violence resulted from the nature of contact between the two types of systems—state and village. The contact between local and state organizations produced a similar result among the Sidamo of southwest Ethiopia. The Sidamo have increasingly neglected procedural rules of community law, developed a preference for revenge, and refused to accept traditional sanctions. The increased use of national courts underlies these changes in the manner of labeling and processing.

However, not all contacts between indigenous and state systems of control produce similar results. The mountain Zapotec use harmony legal models to control the amount and impact of state judicial involvement in village affairs. It is considered a serious offense against the autonomous Zapotec village to aid the state in gaining control over the processing of a dispute settlement. Most villages are able to maintain control over their customary boundaries of authority by maintaining effective mechanisms for local dispute settlement. Indigenous communities may not define state law as "legal" when the state actively participates in disputes that villagers wish to settle among themselves.

Although crimes, from the Western perspective, are violations of the law, violations of the law from the cross-cultural perspective are not necessarily crimes. Radcliffe-Brown's definition of crime in primitive societies as a violation of public order is cross-culturally inapplicable if the exercise of a penal, rather than a civil, sanction is at issue. Research on preliterate societies has not yet established that the cost to the victim is the criterion commonly applied in classifying behavior as criminal or in establishing the severity of the offense. What has been established is that societies without criminal populations are those that prevent individuals from obtaining criminal status through their behavior, not those that prevent violations of the "law." The record on world societies has well illustrated that crime is a cultural construct.