Historical and anthropological jurisprudance

The Romantic Reaction

Two principal movements emerged as a reaction to the natural law thinking of the eighteenth century. One was the school of legal positivism; the other, by way of contrast, relied upon a mystic sense of unity and organic growth in human affairs. The Romantic Movement was it self part of a surge of the human mind against the classical and rationalistic standards of the eighteenth century in favour of feeling and imagination, and this impact was felt espessially in the realm of art and literature. Its influence in the sphere of thought was equally pervasive. The impulses stirring in both fields emerged strikingly in Rousseau, whose writings revealed not only a new literary style but also a belief in the mysterious entity of the collective. An even profounder attachment to the organic roots of society was evinced by Edmund Burke, who, by emphasising the national foundations of mysterious force which move society, gave the organic approach its link with nationalism that became so prominent a feature during the nineteenth century.

Herder and Hegel

But it was in Germany that this new movement was to find the most fertile soil. The Germans have been described as the people of the romantic counter-revolution against the rationalism of the Enlightenment-of the mystical uprising against intellectual clarity.

The most formidable and influential among the founders of this new movement was Herder, who rejected the universalising tendencies of the French philosophes and stressed the unique character of every historical period, civilisation and nation. Every nation possesses its own individual character and qualities and none is intrinsically superior to others. Any attempt to bridge these innumerable manifestations under the general command of a universal natural law based on reason was inimical to the free development of each national spirit (Volksgeist) and could result in imposing a crippling uniformity. Herder, however, unlike his follower Hegel, viewed the bureaucratic state with unqualified antipathy; the state robbed men of themselves, and was a substitution of machinery for life.

Hegel, on the other hand, extolled the state as transcending individualistic interest. Conflict between these could only be overcome by the conscious direction of the state. Far from advocating an authoritarian regime, Hegel regarded the state as the means of securing national freedom and strongly attacked the Prussian State of his day for leaving no free play ti individuals or to groups. Nevertheless, every developed state, at least in an ideal sense, was an absolute end-in-itself, enjoying total sovereignity and autonomy as regards its neighbours. Hegel did not foresee the chauvinist force of nationalism, which was to develop in the course of the nineteeth century, and which ignored all his stress on freedom as the very essence of the state. Thus, by exploiting his fame while distorting his philosophy, a doctrine emerged based on glorification of an authoritarian state, viewed as an organic entity superior to the individuals comprised in it and dedicated to a national policy with war as an instrument of natonal achievement.

The German Historical School

To Herder, perhaps influenced by Vico, is principally due a new approach to history as the life of communities, rather than concerned with the exploits of kings, statesmen, generals and other so-called great men. But Herders particular originality and influence was due to his belief that different cultures and societies developed their own values rooted in their own history, tradition and institutions, and that the quality of human life and its scope for self-expression resided precisely in this plurality of values, each society being left free to developed in its own way.

Out of this ferment of ideas there arose the great German Historical school of the nineteeth century, one of whose early off-shoots way the historical school of jurisprudence associated with the name of Savigny.

F.K. Von Savigny

Savigny rejected natural law. To him a legal system was part of the culture of people. Law was not the result of an arbitrary act of a legislator but developed as a response to the impersonal powers to be found in the peoples national spirit. This Volksgeist a unique, ultimate and often mystical reality was, Savigny believe, linked to the biological heritage of a people.

Savigny successfully used his Volksgeist theory to reject the French Code and the move to codifications in Germany. As a result German law remained, until 1900, Roman law adapted to German conditions with the injection of certain local ideas. But Savigny was not just a theorist. As historian he set himself the task of studying the course of development of Roman law from ancient times till its existing state as the foundation of the civil law of contemporary Europe. This led him to hypothesise that all law originated in custom and only much later was created by juristic activity. He concedes that in the earliest time to which authentic history extends, the law will be found to have already attained a fixed character, peculiar to the people, like their language, manner and constitution.

Rather like Spengler a century later, Savigny sees a nation and its state as an organism which is born, matures and diclines and dies. Law is a vitl part of this organism. Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. Nations and their law go through three developmental stages. At the outset of the nation there is a political element of law; there are principles of law which are not found in legislation but are part of national convictions (Volksglouben). These principles are implicitly present in formal symbolic transactions which command the high respect of the population, form a grammar of the legal system of a young nation, and contitute one of the systems major characteristics. In its middle period law retains this political element to which is added the technical element of juristic skill. This period is the apogee of a peoples legal culture and is the time when codification is feasible. It is desirable only so that the legal perfection of the period can be preserved for posterity. With the decline of a nation law no longer has popular support and become the property of a clique of experts. In time even this skill decays. Ultimately, there is loss of national identity.

The Volksgeist Some Problems

The writers of this persuation seem to assume that every people is in some way an identifiable entity, with a corporate conviction or will of its own. This approach later crystallised in Gierkes theory of the real personality of corporate bodies, and his desire to establish the superiority of Germanic law, as against Roman law, in countenancing this view. We are thus, in the first place, required to accept that collective groups possess some kind of metaphysical personality distinct from the members comprised in the group, a view which recalls the old fallacy that words are names of things and that there must be a distinct entity denoted by every word. But, more than this, it is implied that the nation of a people is aperfectly definite one that can be applied to specific groups which possess this mysterious collective consciuosness. This appears to postulate a degree of unity of thought and action in particular nations, races, or inhabitants of political units, of which there is little evidance in human history. And it seems to ignore the role and effects of conquest by war; the position of enslaved and servile populations; and the control of nations and empires by ruling minorities, and the manner in which these latter may impose new patterns on their subjects (whether in the spirit of a creative minority in Toynbees sense, or of a power elite in that of Wright Mills is immaterial). Nor does this theory deal adequately with the introduction of alien law and custom by peaceful penetration, as in the case of a Western code being adopted in such a country as modern Japan. Savigny was much exercised by the remarkable phenomenonof the so-called "Recepion of Roman Law into Germany in the sixteenth century, which he regarded as the greatest and most remarkable action of a common customary law in the beginning of the modern age. His explanation of this, however, as having being adopted into the popular conciousness of the German People is hardly convincing, and is really little more than a legal fiction. That to probe the spirit of the German Volk Savigny went straight back to Roman Law is perhaps the strangest of paradoxes in Savignys thought.

Legislation and Jurisprudance

It must be admitted that the historical school had at least, if in a most confusing manner, grasped the important truth that law is not an abstract set of rules simply imposed on society, but is an integral part of that society, having deep roots in the social and economic habits and attitudes of its past and present members. Moreover, equally acceptable is the view that judges and lawyers generally, as forming part of the society in which they live and have their being, reflect many, if not all, the basic habit and attitudes of their society, so that the development of the law, so far as it rests in their hands, will probably conform in aboard and general way to patterns of behavior which are widely approved or at least accepted in that society. But this is far from saying that the judge, in reaching a decision or framing a rule, is acting as a mere organ of the peoples consciousness. A great deal of law, for one thing, is highly technical, and a legal profession, like any other compact body, develops an impetus of its own which may lead it in many directions, and by no means only in that one which would be approved or even understood by the popular consciousnesscould it be pretended (remarks Sir Carleton Allen) that a pious faith in the sanctity of seisin burns in the bosom of the Commonwealth suffising all its members with a health glow ?. Again, the judge, though he may be representative of his country and age, nevertheless has a creative function in developing the law, which cannot be exercised by merely imagining how society as a whole would be decide the question before him, even assuming society is capable of forming any view at all. And to assert that in some inexplicable and metaphysical manner the judjes thought somehow connects on each occasion with the Peoples mind is the merest subterfuge. Even Savigny recognises that owning to the complexity of developed law the precise details of decisions are a specifically juristic task beyond the scope of the popular consciousness. But the gap is not bridged by simply postulating an automatic correlation between lawyers law and popular consciousness (or perhaps one should say, in more modern phraseology, sub-consciousness). Nor can this be laid down even as a desideratum, for on many issues public opinion may be non-existent, hopelessly divided or unascertainable, and on some matters at least the judges must be expected to set a higher standard than one which is in fact observed or accepted by the mass of the community. This is to say nothing of the view, already discussed, that law is it self the moulder of custom rather than the reverse.

As for legislation, Savigny seemed greatly to underrate its significance for modern society. A progressive society, as Maine later pointed out, has to keep adapting the law to novel social and economic conditions, and legislation has proved in modern times the essential means of attaining this end, however imperfectly. And with this objective, those who exercise the legislative authority have frequently, while paying heed if not lip service to public opinion, to provide a lead in many directions where the public is confused or undecided, and even in some cases where there may be widespread hostility to a proposed reform.

Sir Henry Maine (1822-1888)

In England the historical approarch, divested of its mystical adherence to the Volksgeist, made important advances in the pioneering hands of Sir Henry Maine. Maine opposed to rationalising theories of natural law and the utilitarian school a serious endeavour to study the nature and development of early law both in its actual historical context, and also as illuminated by the study of developed societies in the contemporary world. I practice this meant for Maine principally the early law of Greece, Rome and the Old Testament, supplemented by the native law of India.

Maine was also a man of his time, and the impact of biological evolutionary theory was such that his work on legal development was set within a unilinier evolutionary framework. He justified this in terms of the stability of human nature, a concept akin to that found in naturalist writers such as Maritain. But, as Pospisil has noted, Maines contribution to jurisprudance lies not so much in his specific conclutions as in the empirical, systematic, and historical methods he employed to arrive at his conclutions, and in his striving for generalizations firmly based on the empirical evidance at his disposal. He blazed a scientific trail into the field of law, a field hitherto dominated by philosophizing and speculative thought.

Law and Anthropology

One of Holmess many pieces of advice was to the effect that if your subject is law, the roads are plain to anthropology, and it was perfectly proper to regard and study the law simply as a great anthropological document. Yet until the early part of the twentieth century it was common to view law in a rigid and narrow way. Primitive peoples without formal legal codes, courts, policemen or prisons were thought to lact anything that might be dignified by the appelation law. It was a characteristic of early or tribal society. And often custom was conceived of as absolute rigid, complete conformity being enforced by the the over-whelming power of group sentiment, amply fortified by religion and magic. Nor was it doubted that in some way custom was inferior to law.

Even in the twentieth century anthropologists using a folk rather than an analytic concept of law have been inclinied to deny that simpler society had law. Radcliffe-Brown defined law, after Austin and Pound, as social control through the systematic application of the force of politically arganised society. His pupil, Evans-Pritchard, utilised this conceptual framework in his studies of the Nuer of the Sudan. They had no law for although there are conventional compesations for damage, adultery, loss of limb and so forth, there is no authority with power to adjudicate on such matters or to enforce a verdict. Malinowski, whose studies of the Trobriand Islands were some of the earliest and most influential participant observations of a primitive society, was critical of this type of etnocentrism. It was wrong, he claimed, to define the forces of law in terms of central authority, codes, courts, and constables. The Trobianders, society was orderly even though these were lacking. He accounted for this in terms of reciprocity, systematic incidence, publicity and ambition. Thus, by means of a primitive stop-list, a failure to comply with a mans economic obligation, for example to make a customary payment, would result in the economic support of the community being withheld from defaulter, who would thus be left helpless and alone. Milanowskis description of social order in terms of felt reciprocities and interdependencies glosses over the normative element in it. As Hamnett writes, this implies an automatic adherence to practice. In envelopes the concept of a rule with, what Hart calls, an internal aspect, and is not merely convergent habitual behaviour.

A different approarch from Malinowskis is to be found in Max Gluckmans studies of the Barotse. The Lozi, he states, have law as a set of rules accepted by all normal members of the society as defining right and reasonable ways in which persons ought to behave in relation to each other and things, including ways of obtaining protection for ones rights. Law is also a specific social fact. It influences the behavior of both Lozi judge and public and it will be distinguished by observers, and distinguished by the people, from other types of socila fact. Fallers studies of Basoga follow Gluckmans approach.

A common approach today is to focus not on law as such but on methods of handling disputes. Definitional questions are sidestepped and attention concentrated on the institutions and techniques for resolving conflict, whether or not these deserve to be designated as legal. The behaviouristic lens of legal realism and the interest of political scientists and sociologists in the problems of conflict resolution have been pervasive influences. The collaboration of Llewellyn and Hoebel in The Cheyenne Way is a particularly fruitful result of this orientation. It not only raised new problems and set new standards in the analysis of tribal law but it served as a model for examining how law-jobs were handled in a particular society. Hoebel, indeed, described Primitive Law as the henchman of Legal Realism. The analysis of trouble cases in The Cheyenne Way has been described as laws principal gift to anthropology. Others have been influenced by Realism. Pospisil, after examining the important attributes, functions and processes of law in tribal and civilised societies, concludes there is no basic qualitative difference between them. Law, he believes, manifests itself in the form of a decision passed by a legal authority. This perspective has also been a stimulus towards theories of dispute institutions in society, such as is found in the writings of Richard Abel.

There are limitations in this approach. All becomes subordinated to the analysis of procedures, strategies and processes. The study of substantive concepts and rules is of secondary importance and no real attention is given to definitions of law. There is also the danger that courts and decision processes of complex modern societies will be the models against wich to measure simpler ones. Some tribals societies have courts which we would have no difficulty in recognising as such ordered proceedings as the Eskimo song-contest or drumming the scandal among the Tiv ? Gluckmans studies of the judicial process among the Barotse have led him to conclude that this corresponds with more than it differs from the judicial process in Western society. But he is dealing with a society which is sufficiently developed to possess established judicial tribunals. He has been concerned to posit what he regard as minimum requirements of procedure to characterise a particular conflict resolution as a judicilal process and he rejects both the song-contest and drumming the scandal as not legal. There is a danger that, in searching for adequate categories, Gluckman may be guilty of cultural solipsism, in taking the Barotse, who have had more contact with Western civilisation as the norm and rejecting as pre-legal, proceeding which do not meet their standards.

Another important question is the relationship between courts and norms. Do stated norms influence the actions and decisions of participants in settlement processes ? Comaroff and Roberts, in a useful paper, have studied the approach to this question among the Tswana. They note no obvious relationship between the clarity with which abstract norms are articulated, the way in which they are employed and their importance in decision-making. The invocation of norms is directly related to their utilisation in argument. In the vast majority of cases Tswana judges isolate a single issue within a dispute and hand down a decision in relation to that issue which makes no explisit reference to any norm. Norms are invoked by judges when they find it necessary to distinguish or adjudicate between a plurality of paradigms of argument.

A concentration on processes of settling disputes tends to give us a pathological picture of the societies being described. Much law, we know if facilitative and the social order is a complex programme for living together, a means of promoting interaction. An important question, therefore, is in what ways, if it all, legal behaviour which is non-legal or other than legal. What is the relationship between law and custom and socila control ? Law in our own society is just one aspect of social control.

Hoebel states that law is more than custom and less than social control. Custom consists of social norms, and social norms are sanctioned. Behaviour in accord with these norms is rewarded; that at variance with it is regarded as deviant and often responded to punitively. Social control encompasses these rewards and punishment. These sanctions may be very effective. Yet, as Hoebel notes, their simple effectiveness does not make law of them. The law, he argues, consists of social norms, plus. Ordinary day-today social control does not always work. And it is then that the law is invoked. For psychological penalties, physical or economic ones are substituted. Hoebel distinguishes law form general social norms in three ways. The real sine qua non of law in any society is the legitimate use of physical coercion. The other distinguishing marks are the invocation of authority and an element of characteristics with custom. Both consist of social norms. They have an element of regularity in common: that which is normally done (the is) and that which is expected to be done (the ought). Like custom, law is sanctioned.

Jurists and anthropologists are not agreed on the relationship between custom and law. Law grows with societal complexity, with the brokendown of organised religion, with industrialisation and bureau-cratisation. in many of the tribal societies studied by anthropolgists custom is sufficient for the needs of that society. It is all too easy to assume that because we need legal regulation that so must.

It is a common view, represented here by the extract from Bohannan, that what begins as custom become redefined in legal institutions and is then turned upon the social conflicts which custom cannot resolve. Laws, Bohannan contends, result from double institutionalisation. He recognises that this conception of the law-custom relationship is inadequate where there is more than one culture (e.g. colonial societies) or more than one centre of power, as in international relations or stateless societies. This view has been attacked by Stanley Diamond, one of a growing number of Marxist anthropologists. To Diamond custom represents order : law is the anthonym and not the synonym of order. He sees law as cannibalising the institutions which it purports to reinforce. He draws particular attention to the repressive process by which governments have geined sovereignty over peoples in Africa. Like all Marxists Diamond idealises primitive society : the cleavage into classes being akin, in Marxist thought, to the Fall of Man.

In the last thirty years anthropologists studying legal processes have placed greater emphasis on economic factors, in particular on forms od domination and questions of social inequality. They have found Marxism a fertile source of theories of law but most have not. In general the thrust of those using Marxist theories has been to use the theories and concepts for the study of legal processes. An abiding concern in Marxist approaches is the relationship between the development of capitalism and processes of legal change. In Capitalism and Legal Change: An African Transformation, Snyder discusses the ways in which the subsumption of African peasants within capitalist relations of production has influenced legal ideas within what was a pre-capitalist social formation. He shows, rather in the manner of Renner, how, despite the apparent continuity of simple legal concepts, there was a profound transformation of concrete legal forms. In arecent article he argues that customary law has been used as an ideology of colonial domination. Fitzpatrick, by contrast, argues that in contemporary underdeveloped countries one of the functions of law is to conserve the traditional mode of production, dispite economic forces which would encourage its dissolution. He stressed the ways in which state law is used to restrict the formation of indigenous classes and attempts to demonstrate how pre-capitalist law constitutes pre-capitalist modes of production, and is constituted by it.

The novelty of approaches such as these, apart from using an explicitly Marxist analysis, is that, as one would expect, attention is given to the role of the state in less developed communities. Fitzpatrick for example has examined the establishment of village courts in Papua New Guinea and concluded that, contrary to the official version of why these were established, they are in effect an extention of state apparatuses of social control into rural villages. He also found that they enhanced the formation of class alliances.

The scope and nature of legal anthropology has changed and broadened considerable in the recent past. The concern of the legal anthropologist are now similar to those whose concern is general social theory and the sociology of law. Roberts, in an important article, picked out what he considered to be the distinctive contribution of the legal anthropologist. This lies in research methods and in an emphasis on modes of dispute settlement, the litigants perspective in dispute and informal alternatives to courts, matters certainly neglected by mainstream jurisprudance and only recently considered by sociologists of law. The importance of a focus on dispute processes is considered in the next section.

DISPUTE PROCESSES

Growing out of the anthropology of law is a vast new literature on dispute processes. As indicated already the influence of Realism played a part in this redirection but it reflected also changes taking place elsewhere in anthropological study. The methods developed by anthropologists, such as case method or situational analysis, once used in traditional anthropological settings, were soon adapted to study dispute processes in the United States and other developed countries.

Not only is there a shift from organisation to process but this is accompanied also by one from groups to networks of individuals. Attention is no longer concentrated no officials but emphasis is given to action of parties to dispute and their perceptions of action. For example, Starrs research in Turkey showed how, in disputing, rural villages formulated strategies to maintain honour or compete for scarce resources.

Out of such studies attempts have been made to theorise about dispute processes. There are a number of attempts at typologist. Roberts, drawing on Bohannans stark dichotomy of law and war, has suggested fighting and talking. He argues that to be successful, bilateral negotiation must be seen as the right way of resolving a dispute: the ready disposition to talk and the conciliatory gesture must represent approved responses. Talking, on the other hand, has little chance of success where honour demands retaliation to an assumed wrong and where conciliatory approaches are likely to be identified as signs of weakness. To Brenda Danet there are seven types of dispute process: physical violance, appeals to the supernatural and the use of magical procedures and aviodance or ostracism as relatively non-verbal modes of processing disputes: shaming, reconciliation rituals, verbal contests and settlement-directed talking as relatively verbal modes. Koch diferenciated six procedures based on the presence or absence of a third party and the mode of its intervention and, secondly, the nature of the outcome. (Avoidance, negotiation and coercion were dyadic procedures; mediation, arbitration and adjudication were triadic)

Once anthropologists turned their attention away from stateless societies to their own more complex Western world, their concerns also shifted. A striking feature of contemporary anthropological research into legal processes has been the concentration on the problem of differential access to justice and alternative informal dispute resolution mechanism associated with, what has come to be known as, delegalisation. A good example of the former is Galanters exploration of why, as he puts it, the haves have come out ahead. Part of the answer lay in the various alternatives to the court system. Delegalisation is thought to have obvious benefits but anthropologists working largely though not exclusively within a Marxist framework have questioned these. Thus, Abel has shown that delegalisation presupposes equality between social actors, a high degree of normative consensus and the existence of adequate informal controls. He concluded that in capitalist societies where these conditions did not exist delegalisation was detrimental to the interests of the weak. This is, of course, an implicit recognition of the value of the rule of law, an ideal usually rejected by Marxist thinkers.

Legal anthropologiests have also turned their attention to system of alternative legal culture in industrialised countries. Greenhouse examined southern Baptists in the United States who specifically eschew the courts because they believe that an adequate Christian life can only be led by following the law of God. Merrys studies of small claims courts and meditation in the United States has thrown light on popular legal discourse. Engel has done innovative work on the way parents of children with special needs use myths and narratives. There has been work too on legal language (speech styles, speech and power, rule-talk and relationship-talk), on legal documents (for example on the cultural characteristics of documents), and on relationships between ordinary and judicial culture. A particularly interesting example of this is the work of Lawrence Rosen on Islamic justice. He found that the discretion of the Qadi judge and the cultural concepts and social relations to which they are inextricably tied.

Where once the focus was focus was external (a good example was the way Gluckman used the reasonable man concept in Barotse society), legal anthropology today focuses on local understanding of law and legal practice from the perspective of the insider.

LEGAL PLURALISM

Legal pluralism is a species of normative pluralism. Normative pluralism is an everyday experience for all of us (the rules of the road, of grammar, of our workplace, etc). Legal pluralism refers to legal system, networks or orders co-exiting in the same geographical space. A good example was found in colonial South America where three legal systems could be found operating in parallel: there was the law of Spain imposed by the Spanish conquerors and administered though colonial governors, the laws of the indigenous Indian populations, and also the law of the Church through the Inquisition. A generation ago it stood for state legal pluralism (the typical colonial country had a plural legal system). Now it tends to be assumed that the idea of a pluralistic legal system is imposible. Rather, it is usually now thought that in all societies there is a plurality of legal orders with official state law as only one these. This :new legal pluralism moves away from question about the effect of law on society or even the effect of society on law toward conceptualizing a more complex and interactive relationship between official and unofficial forms of ordering. Instead of mutual influences between separate entities, this perspective sees plural forms of ordering as participating in the same social field.

An excellent example of this is Santoss study of the squartter settlement of Pasargada in Rio de Janeiro. He unthink the state and state law as privileged units of analysis by demonstrating that both are reproduced and legitimated through various tangential methods. He examines thirteen local dispute settlements in Pasargada.

Future ; This contants preservation of law is effected by tradition and this is conditioned by , and based upon , the not sudden but ever gradual change of generations . the independence of the life of indifiduals , here asserted of law, appertains first to the unchanged continuation of the rules of law : it is secondly too the foundation of the gradual formation of law and in this connexion we must ascribe to it a special importance .

This view in which the indifidual people is regarded as the generator and Subject of mpositive of practical law may appear too confined to some who might be inclined to ascribe that generation rather to the general spirit of humanity than to that of a particular people.On closer examination these two views do not appear conflicting.what work in an individual people is merely the general huma spirit which refeals itself in that people in a particular manner.The generation of law is a fact and one common to the whole.This is conceivable only of those between whom a communion of thought an action is not only possiblebut actual.Since then sucha communion exists only within the limits of an individual people so here also can practical law alone be created,although in itsproduction,the ewxpression of a generative principle common to men in general,isperceived,but on the peculiar will of individual peoples of whichperhaps no single trace might be found in other peoples. For this productof the people,s mind is sometimes entirely peculiar vto a single people.thoghtb sometimes equallypresent in several peoples.

Customary law

This name may easily mislead is into the following course of thinking.When anyting whatever needed to be done in a jural relation,it was originally quite indifferent what was done accident and arbitrary will anyhow settled the decision.if the same case presented itself a second time.it was easier to repeat the sane dicision that to deliberate upon an new one and with each fresh repetitionthis procedureof necvessity apearedmopre convenient and more natural,thus afterafter a while such a rule would become law as had originalyno greater claim to prevail than an opposite rule and the causeof origin of this law was custome alone .If one looks at the true bases of positif law at the actual substance of it,he will see thet in the veiew cause and and effect are exactly reversed.that basis has its existence its reaslity in the common consciousness of the people.This existence is an invisible thing;by what means can be recognize it?We do so when it reveals

F.K Von Savigny

Itself in external act when it steps forth in usage,manners,custominthe uniformity of acontinuing and therefore lasting manner of action we recognize the belief of the people as its common root and one diametrically opposite to bare chance.Custom therefore is the badge and not a ground of origin of positive law.However this error which converts custom into a ground of orogin has also an ingredient of truth which must now be reduced to its proper dimensions.Besides those bases universally recognized in the consciousness of a people and undoubted,there are naby determination as to details which have in themselves.a less certain existence they may obtain such an existence:they may obtain such an existence by being through constant practice brought more vdefinitely to the consciousness of the people itself,,Legislation

,,If we enquire first as to the content of written law,mined by the mode of derivation of the law they are already present people law supplies those content or what is the same think.written law giving power the alreadypresent people law supplies thuse content or what is the semetink,writtwn laws is the organ of people is law if one were to doubt that,one must conceive the lawgiver as standing apart from the nation,he however reather stands in its center so that we have to regard this positionof the legis lator as dependent upon the diferrent arragement of the legislative power in this or that constution. Whether a prince makes the law or a senate or a langer collection of people formed by Election or perhaps the arrangement of serval such powers Is furnished for Legislation , the essential relation of the Legislator to the peoples law is not at all changed and it is again owing to the error of the conception censured above , if some believe that real people s laws is only contained in the laws made by selected representatives

The influence of Legislation upon the progress of law is more important than Upon its original formation . If through changed mannaers ,views , needs ,a changein the existing law becomes necessary or if in the progress of time entirely new legal institutions are necessary, these new elements may indeed be introduced into the existing law by the same innate invisible power which originally generated the law . it is however precisely here that the influence of Legislation may become must obviously beneficial, nay indispensable . since those operative principles only enter gradually, there of necessity a rises an interval of uncertain law and this uncer tainty is brought end the by the expressions of the law

Lastly into the history of every people, enter stages of development and con ditions which are no longer propitious to the creation of law by the general consciousness of a people. In this case this activity , in all cases indispensable , Will in great measure of itself devolve opon Legislation

Juristic law

It is a natural consequence of the development of nations that as oulture progrgress, special activities and acquirements should separate and thus form separate occupations for the different classes. Thus also law , originally the common property of the collective people , by the more extended relations of active life is developed in so special a manner that it can no longer be mastered by the

Historical and anthropological jurisprudence

Knowledge uniformly spread among the people. Then is formed a special order of persons skilled in law who as an actual part of the people , in This order of thought represent the whole . the law is in the particular consciousness of This order , merely a continuation and special unfolding of the peoples law . it leads hence fortha double life; in outline it continues to live in the common consciousness of the people , the more minute cultivationand handing of it , is the special calling of the order of jurists

Relation Between Sources Of Law

From the previous exposition it follows that originally all positive law is peoples law and that side by side with this spontaneous generation, comes Legislation (Often even in early times ) enlarging and propping it up . Then by the progressive development of the people . legal science is added ; thus in Legislation and the science of law , two organs are furnished to peoples law , each of which simul taneously leads its independent life . if lastly in later times ,the law forming energy departs from the people as a whole . it continues to live in these organs . Then since the largest and most important part of the old peoples law have been incvorporated into Legislation and legal science , that law shows itself very little in its original shape but merely appears through their medium . thus it may happen that peoples law may be almost hidden by Legislation and legal science in which it lives on, and that the origin of existing positive law , may be easily forgotten and misunderstood . Legislation especially , in its external influence vhas such a preponderance , that the delusion easily arises that it is the sole true ground of original of law and that all others must be considered in the subordinate position of a mere supplement or adjunct to it . Law however is never in a healthy condition, unless these law forming powers work harmoniously together, none of them isolating itself from the others : and science Legislation and legal science are the continuous product of individual consciousness and reflexion , it is also of importance that correct views of the origin of positive law , and of the true conexion of the powers co- operating in that production , should obtain and assert the mastery

SIR HENRY MAINEAncioent law

The earliest notions connected with the conception, now so fully developed , of a law or rule of life, are those contained in the Homeric words themis and themistes themis it is well know , appers in the later greek pantheon as the goddess of justice, but this is modern and much developed idea , and it is in a very different sense that Themis is described in the lliad as the assessor of zeusit is nowcleary seen by all trustwhorthy observers of the primitive condition of mankind that , in the infancy of the race , men could only account for sustained or periodically recurring action by supposing a personal agent . Thus , the wind blowing was a person and of course a divine person ; the sun rising , culminating , and setting was a person and a divine person ; the earth yielding her increase was a person and divine . As, the ,in the physical world, so in the moral. When a king

Sir Henry Maine

Decided a dispute by a sentence , the judgment was assumed to be the result of direct inspiration .

Even in the Homeric poems we can see that these ideas are transient. Parities of circumstance were probably commoner in the simple mecanicm of ancient society than they are now , and in the succession of similar cases awards are likely to follow and resemble each other . Here we have the germ or rudiment of a custom . a conception posterior to that of Themistes or judgment . however strongly we ,with or modern associations , may be inclined to lay down a priori that the notion of a custom must precede that of a judicial sentence , and that a judgment must affirm a custom or punish its breach , it seems quite certain that the historical order of the ideas is that in which i have placed them.

Customary Law

The important poin for the jurist is that aristocracies were universally the depositaries and administrators of law. They seem to have succeeded to the prerogatives of the king, with the important difference , however , that they do not appear to have pretented to direct inspiration for each sentence. The connection of ideas which caused the judgment of the patriarchal chieftain to be attributed to super human dictation still shows itself here and there in the claim of a divine origin for the entire body of rules , or for certain parts of it, but the progress of thought no longer permits the solution of particular dispures to be explained by supposing an extra- human interposition. What the juristical oligarchy now claims is to monopolise the knowledge of the laws . to have the exclusive possession of the principles by which quarrels are desided. We have in fact arrived at the epoch of customary law . Custom or obsesvances now exist as a substantive aggregate , and are assumed to be precisely know to the aristocratic order or caste.our authorities leave us no doubt that the trust lodged whit the oligarchy was sometimes a abused , bu it certainly ought not to be regarded as a mere usurpation or engine of tyranny . before the invention of writing , and during the infancy of the art, an aristocracy invesded with judicial privileges formed the only expedient by which accurate preservation of the customs of the race or tribe could be at all approximated to . Their genuineness was , so far as possible , insured by confiding them to the recollection of a limited portion of the community.

The epoch of customary law , an of its custody by a privileged order , is a Very remarkable one . The condition of jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. The law , thus know exclusively to a privileged minority , whether a caste , an aristocracy , a priestly tribe , or a sacerdotal college , is true unwritten law . Except this , there is nosuch thing as unwritten law in the world . English case- law is sometimes spoken of as unwritten , and there are some English theorists who assure us that if a code of English jurisprudence were prepared we should be turning unwritten law into written a conversion , as they insist , if not of doubtful policy , at all events of the greatest seriousness ., Now it is quite true that there was once a period at which the English common law might reasonably have been termed unwritten . The elder English judges did really pretend to knowledge of rules , principles , and distinction which were not entirely revealed to the bar and to the lay public. Whether all the law which they claimed to monopolise was really unwritten , is exceedingly questionable ; bua at all events , on the assumption that were was once a large mass of civil and criminal rules know exclucively to the judgres, it presently ceased to

Historical and Anthropological Jurisprudence

Be unwritten law . as soon as the courst at Westminster Hall began to base their judgments on cases recorded, whether in the year books or elsewhere, the law which they administered became written law . At the present moment a rule of English law has first to be disentangled from the recorded facts of adjudged prited precedents , then thrown into a form of words varying with the taste , precision, and knowledge of the particular bjudge, and then applied to the circumstances of the case for adjudication . But at no this process has it any characteristic which distinguishes it from written law . it is written case law, and only different from code law because it is written in a different way.

From the period of customary law we come to another Sharply defined epoch in the history of jurisprudence . We arrive at the era of codes , those ancient codes of which the twelve tables of rome were the most famous specimen . in Greece in Italy , on the Hellenised seaboard of western asia , these codes all made their appearance at periods much the same everywhere , not , I mean , at periods identical in point of time . But similar in point of the relative progress of each community, everywhere , in the countries I have named , laws engraven on tablets and published to the people take the pleace of usages deposited with the recollection of a privileged oligarchy . it must not for a moment be supposed that the refined considerations now urged in favour of what is called codification had any part or place in the change I have described . The ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing . It is true that the aristocracies seem to have abused their monopoly of legal knowledge , and at all events their exclusive possession of the law as a formidable impediment to the success of those popular movements which began to be universal in the western world. But though democratic sentiment may have added to their popularity , the codes were certainly in the main a direct result of the invention of writing . Inscribed tablets were seen to be a better depository of law , and a better security for its accurate preservation . than the memory of a number of persons however strengthened by habitual exercise.

The movement of the progressive 72 societies has been uniform in one respectThrough all its course it has been distinguished by the gradual dissolution of family dependency , and the growth of individual obligation in its place . The individual is steadily substituted for the family , as the unit of which civil laws take account . The advance has been accomplishedat varying rates of celerity , and there are societies not absolutely stationary in which the collapse of the ancient organisation can only be perceived by careful study of the phenomena they present . But whatever its race , the change has not been subject to reaction or recoil . and apparent retardation ewill be foud to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. Not is it difficult to see what is the tie between man and which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the family . It is Contract . Starting , as from one terminus of history, from acondition of society in which all the relations of persons are summed up in the relations of family , we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals .

The word Status may be usefully employed to construct a formula expressing the law of progress thus indicated , which , Whatever be its values , seems to me to be sufficiently ascertained. All the froms of status taken no tice of in the law of persons were derived from , and to some extend are still coloured by , the powers and privileges anciently residing in the family . If then we employ status agreeably with the usage of the best writers , to signify these personal conditions

Sir henry Maine

Only, and avoid applying the term to such conditions as are the immediate or remote result of agreement , we may say that the movement of the progressive societies has hithero 73 been a movement from Status to Contract

E . A . HOEBELThe Law of Primitive ManThe Functions of Man

Law Perfoms certain Functions essential to the maintenance of all the most simple societies

The first is to define relationships among the members of a society ,to assert what activities are permitted and what areruled out . so as to maintain at least minimal intregation between the activities individuals and groups within the society.

The second is derived from the necessity of taming naked force and directing force to the maintenance of order . it is the allocation of authority and the determination of who may exercise physical coercion as a socially recognized privilege right, along with the selection of the most effective froms of physical sanction to achieve the social ends that the law serves.

The third is the disposition of trouble cases as they arise.

The fourth is to redefine relations between individuals and groups as the conditions of life change. It is to maintain adaptability .

Purposive definition of personal relations is the primary law -job .other aspects of culture likewise work to this end, and , indeed , the law derives its working principles ( jural postulates ) from postulates previously developed in the nonlegal spheres of action. however, the laws important contribution to the basic organization of society as a whole is that the law specifically and explicitly defines relations . it sets the expectancies of man to man and group to group so that each knows the focus and the limitations of its demand rights on others, its duties to others, its privilege rights and powers as against rights, and its immunities and liabilities to the contemplated or attempted acts of others. 75 This is the barebones job , as karl Llewellyn likes to call it. It is the ordering of the fundamentals of living together.

No culture has a specific starting point in time : yet in the operation of the first function it is as though men were getting together and saying to each other , Look here ! Lets have a little organization here or well never get anywhere with this mess ! Lets have a clear understanding of whos who , what we are to do, and how we are going to do it ! in its essence it is what the social contract theorists recognized as the foundation of social order. Historical and Anthropological Jurisprudence

The second function of the law the allocation of authority to exercise coercive physical force- is something almost peculiar to things legal.

Custom has regularity , and so does law . Custom defines relationship , and so does law Custom is sanctioned , and so is law . But the sanctions of law mayinvolve physical coercion . Law is distinguished from mere Custom in that it endows certain selected individuals with the privilege-right of applying the sanction of physical coercion ,if need be.the legal,let it be repeated ,has teeththat can bite.But the biting.if it is to be legal and not mere gangsterism,can be done only by those persons to whom the law has allocated the privilege-right for the affair at hand.

We have seen that in primitive law authority is a shifting. Temporary thing. Authority to enforce a norm resides(for private wrongs)with the wronged individual and his immediate kinsmen-but only for the duration of time necessary to follow the proceduralstaps that lead to redress or punishment of the culprit.In primitivelaw the tendency is to allocate authority to the party who is directly injured.This is done part out of convenience,for it is easier to let the wronged party assume the responbilityof legal action.It is also done because the primitive kinship group,having a more vital sense of entity,is naturallycharged with aheavier emotional effect.In any event,when the community qua community acknowlwdgesthe exserciseof force by a wronged person or his kinship group as correct and proper in a given situation,and so restrainsthe wrongdoer from striking back,the law prevails and order triumphs over violence.

We have also found in our studiesb of primitive societies that in alimited number of situations authority is directly exercised by the communityon its ownbehalf. It takes the form of linch law in some instances where clear procedures have not been set up in advance,as in the Comanche treatment of excessive sorcery and Shoshone treatment of cannibalism Lynch law among primitives ,however is not a backsliding from,or detouringaround ,established formal lawas it is with us.It is a first fitful step toward the emergence of criminal law in asituation in which the exercise of legal power has not yei been refined and allocated to specific persons, It is a blunt crude toolvwielkded by the gang hand of anoutraged public.

Yet lynchlaw is rare among primitive. Event the simplest of themhave crystallized standarts as to what constitutescriminal behavior.,an the exercise of public authority is delegated to official functionaries-the chieftain.the councilof ciefs and the councilof elders.

Power may sa\ometimes be personal,as is the power of the bully in the societyos small boys,and as was to some extent the power ofwilliam the Conqu eror..but personaltyrannyis a rare think among primitivebrute force of the individualdoes not prevail.Chiefs must have followers.Follower always impose limitations on their leaders.Enduring power is always institutionalized power . It is Trans personalized . It resides in the office , in the social status , rather than in the man. The Constitutional structures of the several tribes examined in this book have all clearly revealed how political and legal authority are in each instance delimited and circumscribed.

This point is emphasized only to dispel any residue of the hoary political philosophies that assumed whitout basis in fact that primitive societies existed under the rule of fang and claw .

However , the personal still obtrudes. An Office although culturally defined is , after all , exercised by an individual . And who that individual is at any moment certainly makes a difference . There is leeway in the exercise of power just at there are limits . A man may be skilled In finding the evidence and the truth the cases he must judge and in formulating the norms fit the case in

E . A . Hoebel

Hand or he maybe all thumb . He may be one who thirsts for power and who will wield all he can while grasping for more . or he may shrink from it . power defined through allocation of legal authority is by its nature trans personalized ,yet by the nature of men it can never be wholly depersonalized.A franklin Roosevelt is not a Warren Harding

The third function of law calls for littlew additional commentsome troubelcases pose absolutely new problems for solution .in these cases the first and second function may predominate.Yet this is not the instance of most legal clashes in which the problem is not the formulation of law to cover a new situation but rather the application of pre-existing law.These cases are disposed of in accordance with legal norms already set before the issue in question arises.The job is to clean the case up,to suppress or penalize the illegal behavior and to bring the relations of the disputants back into balance,so that life may resume its normal course.This type of law work has frequently been compared to work of the medicalpractitioner.It is family doctor stuff essential to keeping the social body on its feet. In more homely terms,Llewellyn has called it,garage repair work on the general order of the group when that general order misses fire,or grinds gears ,or even threatens a total breakdown. 77 It is not ordinarily concerned with grand design,as is the first law-job. Nor is it concerned with redesign, as is the fourth.It works to clean up all the little social messes (and the occasional big ones) that recurrently arise between the members of the society from day to day.

Most of the trouble cases do not , in a civilized society,of themselves loom large on the social scene although in a small community even one can lead directly to a social explosion if not successfully cleaned up . Indeed in a primitive society the individual case always holds the threat of a little civil war if procedure breaks down,for from its inception it sets kin group against kinm group-and if it comes to fighting , the number of kinsmen who will be involved is almost always immediately enlarged. The fight may engulf a large part of the tribe in internecine throat cutting. Relatively speaking each run of the-mill trouble case in primitive law imposes a more pressing demand for settlement upon the legal system than is the case with us.

While system and integration are essential ,flexibility and constan revisionore no less so. Law is a dynamic process in which few solutions can be permanent.Hence ,the fourth function of law :the redefinition of relations and the reorientation of expectancies.

Initiative with scope to work means new problems for the law .New inventions,new ideas,new behaviors keep creeping in. nay,sweep in, when two unlike societies come newly into close contact. Then the law is called upon to decide what principles shall be applied to conlicts of claims rooted in disparated cultures .do the new claims fit comfortable to the old postulate ?78 must the newly realized ways of behaving be wholly rejected and legally suppressed because they are out of harmony with the old values ? or can they be modified here and altered there to gain legal acceptance ? or can the more difficult operation of altering or even junking old accommodate a new way be faced ? Or can fictions be framed that can lull the mind into acceptance of theof the disparate new without the wrench of acknowledged junking of the old?what is it that is wanted ?the know and habitual ,or the promise of the new and unested?Men may neglect to turn the law to the answer of sunch question . But they do not for long.Troubel cases generated by the new keep marching in. and the fourth law job presess for atrtention.

Recapitulationof just one Cheyenne case will throw the process into focus. The acquisitionof horses greatly altered all plains Indian cultures .one important

Historical and Anthropological Jurisprudence

Cheyenne basaic postulate ran.79 Except for land and tribal fetishes,all material goods are private property but they should be generaously shared with others.when in come to horses this led some men to expect that they could freely borrow horses without oven the courtesy as asking. For horse owner this goto the point of becominga serious nuisance,as in the sance a pawnee and wolf lies Down.80 wolf lies down put is trouble case to the members of the elk Soldier society ,They got his horse back for him with a hand some.free will ofeering of additional,damagesfrom the defendant to bootlhe trobel.the troble case was neatly disposed ofbuth the elk soldiers did not stop there.There was some preventive channeling of future behavior to be done. Hence the Now we shall make a new rule 81there shall be no more borrowing of horses without asking.If any man taxes anothersgoods without asking we will go over and get them back for him. More than that if the taker tries to keep them,wew will give him a whipping here was the fourth function of law being performed .The lines for future conductre horse were made clear.

Work under function IV 82 represented social planning brought into focus bythe case of the instantand with an eye to the future.

The problem of reorienting conduct and redirectingit through the law when new issues emerge is always tied to the bare bones demand of basic organization and the minimal maintenance of order and regularity.it may also shade over into work colored by a greater or lesser desire to achieve more than a minimum of smoothness in social relations.when this becomes an important aspect of law work,a special aspect of law-ways activity may be recognized ? The creation of techniques that effectively solve the problems posed to all to other law jobs so that the basic values of the society are realized through the law and not frustrated by it.

The doing of it has been called by Llewellyn Juristic Method . it is the Method not only of getting the law jobs done but going them with a sure touch for the net effect that results in smoothness in the doing and a harmonious wedding of that is aspired to by men and what is achieved through the law . it is the work not just of the craftsman but the master craftsman.

Skill in Juristic Method may be the unique quality of a great judge or chief who judges for his people . In which case you may have a single man , or occasional men . cropping up to soften hard shell legalism . Or it may become an institutional quality of a whole system in which a tradition of Method is to keep one eye on the ultimate social goals of men and another on the working machinery to see that it is steering towards those goals. For juristic Method , while it works on the immediate grievance to see that justice receives its duc , also looks beyond to discern as far as possible the ultimate effect of the social policy that the ratio decidendi will produce . it weighs and balance the rights of the individual in this particular case against the need for order per se and the far running needs of the group as a whole . it recognizes that regularity exists not only for the sake of regularity , which is no Ding an sich , but as a means to social and individual existence . But it also know that absolute regularity is impossible in social and individual existence .But is also knows that absolute regularity is imposible in social physiologi .it seeks as best it may to keep the working law fleksible enouhto allow leeway at the points where leeway will not cause the social fabric to part at the seams, and at the same time it seeks to maintain sufficient stiffness in the fibre of the law so that it will not lose its binding effect

E . A . Hoebel

Admittedly it would be hard , if not imposible , to scale a society on a measure of juristic Method. Yet , grossly perceived , it can be seen to exist among primitives, often in large degree , and I venture to state in large degree , than in the archaic law of some of the Mediterranean civilizations, and in England after the common law had hardened and before equity had been created to countract its unrea sonable effects.

If ever sir Henry Maine fixed an erroneous notion on modern legal historians, it was the idea that primitive law once fofmulated . is stiff and ritualistic ( and by implication weak in juristic method ) 83 in most primitive trouble cases vthe situation is surprisingly fluid , but flowing within channels that are built by the preexisting law and moving to a reasonably predictable settlement b. The channels, however , shift and bend like the course of a meandering river across the bed of a flat flood plain , though flowing ever in a given direction . Men are at work on the law.

The very fact that bulk of the substance and procedure of primitive law emerges through case action involving claim and counterclaim , pleading and counterpleading , tends to keep legal behavior relatively close to the prevailing social values. Which way a new issue will go will depend not alone upon the facts but also upon the skill of the litigants in framing the issue and arguing the relevance of their respective positions to the prevailing social ideas of right conduct and group well being or upon persuasivaness in argument that a new orientation of values is in order to meet changed conditions , even though the though man and his kinsman , though wrong may sometimes make his position stick with naked force . thus, the wise claimant argues his case not in terms of This is good me but rather by maintaining this it what we all want and should do If he is a primitive advocate , it is more likely than not that he will also insist ..., if he can , that this is the way it has beem from time immemorial . But the past certainly has no inflexible grip on primitive law .

Fiction is one of the great devices of juristic method by means of which men fit new legal norms into old principles so as to reorient counduct without the eed to junk long standing postulates. Except for the universal practice of adoption , wrereby outsiders are identified as if they are actually kinsmen primitive men do not have to rely too heavily on the subterfuge of fiction to achieve legal change. Nevertheless , when the need is there many tribes have had recourse to it use .

An outstanding example may be foud in adoptive marriage among the patrilinal groups of Indonesia . The important value for these people is to maintain the unbroken continuity of the paternal lineage . To do this , a family without sons adopts their daugthers husband as a son with the effect that her children remain whihin their clan and their inheritance will remain within their line 85

Thus far .we have been concerned with the functions of law in their universal aspects. Do these lead to universal principles of content ? yes , but among the highly diversified cultures of the primitive world they are few and very generalized for the most part.The one assumption of overwhelming importance underlying all primitive legal and social systems is the postulation of magico religious forces as being superior to men , and also that spirit beings have emotional intelligence similar to mans .its effect on the law system is variable . it is strongest in its consequences among those people whose religion emphasized the role of ancestral spirit . and where the anger vof spirits is believed to jeopardize the well being of the entire society . The sins that arouse such anger are almost certainly taken upby the law as crimes.Almost universally ,excessive abuse of personal control of supernatural power (sorcery out of hand)is treated as acrime.on the other hand ,appealto the supernatural to solve problems of evidence through use of oracles,divination

But the very concept of legal pluralism has difficulties . 52 Twining draws attention to a number, 53 First , conceptual problems arise about when , Where and how to draw distinactions between legal and non legal phenomena, and between legal orders ,systems traditions and cultures . secondly , very few orders or systems of norms ar complete , self contained or impervious . Thirdly ,co- exsisting normative and legal orders interact in complex ways somestimes they sustain or reinforce eac other ; often they influence eac other through intraction , imposition and transplantation 54 Fourthly , there is a tendency to romanticize 55 Fifthly ; it is wrong to conflate normative pluralism with the idea of a pluralistic approach to or the bringing of multiple perspectives to bear on a phenomenon 57 There is a lot of criticism of the concept of legal pluralism 58 Teubner , noting how it appeals to post modernists , 59 observes that they give vague answers to the connections between the social and legal fields interpenetrating , inter twined , integral , superposed , mutually constitutive , dialectical. it is , he coments , the very charm of postmodernism 60 Teubners a answer is to subject the concept of legal pluralism to autopoietic analysis . But does this advance our understanding of legal pluralism ? 61 Tamanaha fiercely attackes legal pluralis approaches because they confuse the idea of law 62 How is lawdistinguished in a pluralist view from other normative systems ? What makes a social rule systems legal ? Does not legal pluralism confer the label law promiscuously on rule systems or normative orders ? 63 A theory of legal pluralism could lead to a position In which drawing a clear line between state and society , even between the public and the becomes problematic 64 in the

F.K VON SAVIGNYSystem of Modera Roman Law

In the gereral consciousness of a people lives positive law and hence we have to call it peoples law ( volksrecht ) is a by no means to be thought that is was the particular members of the people by whose arbitrary will , law was brought forth ; in that case the will of indifiduals might perhaps have selected the same law, perhaps however and more probably very varied laws. Rather is it the spirit of a people living and working in common in all the indifiduals, which gives birth to positive law which therefore is to the consciousness of each indifidual not accidentally but necessarily one and the same. Since therefore we acknowledge an invisible origin of positive law we must as to that origin , renounce documentary proof : but this defect is common to our and every other view of that origin , since

We discoverin all people who have ever presented themselves withim the limits of authentic history an already existing positive law of which the original generation must lie beyond those limits . There are not wanting proofs of another sort and suitable to the special nature of the subject matter . Such a proof lies in the universal , uniform recognition of positive law and in the feeling of inner necessity with which is conception is accompanled . This felling expresses itself most definitely in the primeval assertion of the divine origin of law of statutes ; a more manifest opposition to the idea of its arising from accident or the human will is not to be conceived . A second proof lies in the analogy of other peculiarities of people which have in like manner an origin insable and reaching beyond authentic history , for example , social life and above all speech . in this found the same independence of accident and free individual choice , the same generation from the activity of the spirit of the people working in common in each individual ; in speech too from its sensible nature , all this is more evident and recognizable than in law , Indeed the individual nature of a particular people is determined and recognized solely by those common directions and activities of which . Speech as the most evident obtains the first pleace.

The form however in whichlaw lives in the common consciousness of a people is not that of abstract rules but as the living intuition of the institutions of law in their organic connecxion , so that whenever the necessity arises for the rule to be conceived in its logical form . This must be first formed by a scientific procedure from that total intuition . That form reveals itself in the symbolical acts which display in visable shape the essence of the jural relation and in which the primitive laws express themselves more intelligibly than in written laws . In this view of the origin positive law , we have at present kept out sight

F. K . Von Savigny

The progress of the life of a people in time . if we now look also at this operation upon law we must above all ascribe to it an establishing force . The longer the convictions of law live in a people, the more deeply they become rooted in it . moreover law will develop itself by use and what originally was present as a mere germ will by practice assume a definite shape to the consciousness . however in this way the changing of law is also generated . for as in the life of single men, no glimpse of complete passiveness can be perceived , but a continual organic development , so is it whit the life of peoples and whit each single element of which that concrete life is composed . Thus we in speech a constant gradual shaping and development and like manner in law . this gradual formation is subject to The same law of generation from inner power and necessity , independent of accident and individual will , as its original arising was . but the people experiences in this natural process of development , not merely a change in general, but it experiences it in a settled , regular series of events and of these each has its peculiar relation to the expression of the spirit of the people in which the law is generated.

This appears in the clearest and strongest manner in the youth of a people for then the connexion is more intimate , the consciousness of it is more generally diffused and is less obscured by the variety of individual cultivation . moreover in the same degree in which the cultivation of individuals becomes heterogeneous and predominant and in which a sharper division of employment , of acquire ment, and of rank produced by these , enters , the generation of law which rest upon the commo consciousness becomes more difficult ; and this mode of gen eration would disappear altogether if new organs for that purpose were notformed by the influence of these self same new circumstances these organs oflegislation on the science of law of which the nature will be immediately explained.

This new development of law may have an entirely different relation to the originally existing law.New institutions of law may be generated by it.The existing law transformed or it may be entirely swept away if it has become foreignto the thought and need of the age.

People (Volk)

The generation of law bhas been preliminarily posited in the people as the active,personal subject.The nature of this subject will not be more accurately defined.If in the examination of the jural relation,we remove by abstraction,all its special content ,there remains over as a common nature,the united life of a plurality of men regulated in a defined manner.we might naturally be led to stop short at this abstract conception of a plurality and regard law as its discovery,withoutwhichthe external freedom of no individual could subsist,but such and accidental meeting of an undefined multitude is a conception both arbitraryand entirelywanting in truth:and even ifthey found themselves so met together,the capacity for producing law would be entirely wanting since with a need the power of at once supplying it,is not given .In fact we find so fwar as history informs us upon the matter,that wherever men live together,the stand in an intellectual communion which reveals as establishes and develops itself by the use of speech.In this natural whole is the seatof the generation of law and in the common intelligence individuals,is found the power of satis fying the necessity above recognized.

The boundaries however of individual nations are certainly undefined and wavering and this state of doubt also shows itself in the unity or variety of the law engendered in them. Thus as to kindred races it may appear uncertain whether they are to be regarded as one people or as several ; in like manner we also frequently find in their law not an entire consonance , probably however an affinity

Historical and Anthropological Jurisprudence

Even Where the unity of a people is undoubted 66 within its limits are of ten found inner circles which are included in a special connexion side by side with the general union of the people , as cities and villages , guilds and corporations of every sort which altogether form popular divisions of the whole . in these circles again a special generation of law may have its seat as particular law, side by side with the general law of the nation which by that particular law is on many sides complete or altered.

When we regard the people as a natural unity and merely as the subject of positive law , we ought not to think only of the individuals comprised in that people at any particular time , that unity rather runs through generations con stantly replacing one another , and thus it unites the present with the past and the M. GLUCKMANJudikal Process among the Barotse(revised ed. 1967)

The Reasonable Man

It is perhaps now reasonable time that I gave the Lozi89 phrase for a reasonable man. It is clear from the texts and from my discussion of the preceding cases that in practice judges do not often use such a phrase explicity, but that the reasonable man in usually implicitly present when they contrast reported behaviour with the norms of behaviour of particular position. One general phrase in Lozi is mutu yangana:mutu = person, and ngana = mind, wisdom, intelligence, intellect, reason, sense, commonsense. From the many contexts in which I have heard mutu yangana used, I consider it is best translated as a man of sense, with the meaning thet Jane Austen brought out in Sense and Sensibility ... It includes the idea of having sound principles. This is made clearer in the more common general Lozi phrase used in contexts where people are being judged: mutu yalukile, of which an upright man is probably the best English rendering. ---Lukile is an adjective from the verbal root kuluka, to go straight, to stand upright. Straighforwadness, uprightness, decency, principle, virtue, are therefore the qualities which the Lozi demand of people. This demand includes both sense or reasonableness (ngana) and uprightness (kuluka).

That Muti yalukile, an upright man, embraces both sense and uprightness is apparent if we recall the cross-examination and judgements in cases cited. In The Case of the Biassed Father90 the village headman would have behaved sensibly and uprightly if he had been impartial in setttling the dispute between his sons and his nephews, as would SAYWA in The Case of the Violent Councillor had he not backed his own children. Reference to any of the praises or reprimands bestowed by judges emphasizes this partial identification. However, the identification is only partial, and mutu yangana and mutu yalukile are distinguished. For though the judges assess behaviour, in considering evidence, by the standard of the upright man, and urge this standard on litigants, the law only demands reasonable behavior --- the standard of the sensible man. Hence the upright man does not have mistresses, but the law only requires that a man should not neglect his wives while he pursues mistresses, and allows him mistresses if they be not married to others . . .

Lozi judges do not make continual explicit use of the general phrase for a reasonable man because in most cases they are giving judgments on the behaviour of persons occupying specific social positions in multipex relations ---they are chiefly concerned with relationships of status. Therefore the judges more often work explicitly with the phrases, a good husband, a sensible induna, and so on. Indeed, they often use the term for the social position without using the qualificative. This in itself states the norms of cusomary behaviour and reasonable fulfilment of obligations. The emphatic use of terms defining social position is very common in praising people. For example, Lozi rarely speak of a woman as an intrustrious gardener without adding, Kimusalf (shes a wife ), or, Komwana (shes a child), since gardening is so important a duty of women. Similarly, when it became known how much Nyambe, the son of NAWALA Mutondo, had brought back from Johannesburg for his kin, people said of him: Kimwana, uezize---hes a child, he has done [what he ought to have done].This phrase, Uezize, (he [or she] has done) is often used on its own of a man who has fulfilled his obligations, beyond reasonable demands. Similarly, Lozi says, Hes a chief---an induna---a headman---a subject, for political positions; Hes a fisherman---a herdsman---a servant, for employees; hes a magician---a smith---a potter---a carver, for specialists; and so forth.

Judges also use this common practice of reference, and in doing so they are setting up the differentiated standard of the reasonable and perhaps even upright incumbent of a particular social position. Recall what ALULEYA said to one nephew in The Case of the Biassed Father: You, B, I see you are really a man, because you said, My brothers, do not leave home. And you went to your father to adjust matters. You should have persisted more, but your behaviour when you returned to Loziland shows you are really a man: A man here means one who tries to see that a family dispute is argued out and settled.

Again, in The Case of the Man who Helped his Mother-inlaw Cross a Ford a judge praised a girl who said she could not live with her husband after he saw her two maternal uncles wives naked and slept with one of them. He told her husband: I support your wife; she is a good girl, a true woman [wife]. If our children were the same, we would have children. Here the girl is praised because she recognizes her duites as a woman and wife of their wives seducer, so he is a woman.

This usage is not, of course, peculiar to the Lozi. We have it in phrases such as, hes a man---a gentleman---a sportsma---a king, and so on. In both cultures it implies approbation of a person showing the qualities and conforming to the norms demanded of a certain social position; or in the negative---as hasimulena yo, he is not a chief,---it states disapprobation of a person who has failed to show these qualities, or has exhibited contrary qualities, and has violated the appropriate norms demanded of a certain social position; or in the negative---as hasimulenayo, he is not a chief,---it states disapprobation of a person who has violated the appropriate norms. Note how in The Case of the Eloping Wife the judges said of her insults to her father: Now your father has no child . . . Find another father.

Terjemahan

Sejarah dan antropologi jurisprudance

The Romantic Reaksi

Dua gerakan utama muncul sebagai reaksi terhadap pemikiran hukum alam abad kedelapan belas. Salah satunya sekolah positivisme hukum; yang lain, dengan cara kontras, diandalkan rasa mistik kesatuan dan pertumbuhan organik dalam urusan manusia. Gerakan Romantis apakah itu bagian diri dari gelombang pikiran manusia terhadap standar klasik dan rasionalistik abad kedelapan belas mendukung perasaan dan imajinasi, dan dampaknya ini terasa espessially di ranah seni dan sastra. Pengaruhnya di bidang pemikiran adalah sama meresap. Impuls aduk di kedua bidang muncul mencolok di Rousseau, yang tulisan-tulisannya mengungkapkan tidak hanya gaya sastra baru, tetapi juga keyakinan dalam entitas misterius kolektif. Lampiran bahkan profounder ke akar organik masyarakat yang tampak oleh Edmund Burke, yang, dengan menekankan dasar-dasar nasional kekuatan misterius yang bergerak masyarakat, memberikan pendekatan organik hubungannya dengan nasionalisme yang menjadi begitu menonjol fitur selama abad kesembilan belas.

Herder dan Hegel

Tapi itu di Jerman bahwa gerakan baru ini adalah untuk menemukan tanah yang paling subur. Jerman telah digambarkan sebagai "orang-orang romantis kontra-revolusi terhadap rasionalisme Pencerahan-of ... pemberontakan mistis terhadap kejelasan intelektual.

Yang paling tangguh dan berpengaruh di antara para pendiri gerakan baru ini adalah Herder, yang menolak kecenderungan universalisasi dari para filsuf Perancis dan menekankan karakter unik dari setiap periode sejarah, peradaban dan bangsa. Setiap bangsa memiliki karakter tersendiri dan kualitas dan tidak ada yang secara intrinsik unggul daripada orang lain. Setiap usaha untuk menjembatani manifestasi tak terhitung di bawah komando umum dari hukum alam yang universal berdasarkan alasan yang bertentangan dengan perkembangan bebas dari setiap semangat nasional (Volksgeist) dan bisa mengakibatkan memaksakan keseragaman melumpuhkan. Herder, bagaimanapun, tidak seperti nya pengikut Hegel, dilihat keadaan birokrasi dengan wajar tanpa pengecualian antipati; negara "dirampok orang dari diri mereka sendiri," dan merupakan substitusi dari mesin untuk hidup.

Hegel, di sisi lain, memuji negara sebagai melampaui kepentingan individualistis. Konflik antara hanya bisa diatasi dengan arah sadar negara. Jauh dari advokasi rezim otoriter, Hegel dianggap negara sebagai bentuk pengamanan kebebasan nasional dan sangat menyerang Negara Prusia pada zamannya untuk tidak meninggalkan gratis bermain ti individu atau kelompok. Namun demikian, setiap negara bagian yang dikembangkan, paling tidak dalam arti ideal, adalah jumlah kedaulatan mutlak end-in-sendiri, menikmati dan otonomi dalam hal tetangganya. Hegel tidak meramalkan kekuatan chauvinis nasionalisme, yakni mengembangkan dalam perjalanan abad nineteeth, dan yang mengabaikan semua stres tentang kebebasan sebagai inti dari negara. Dengan demikian, dengan memanfaatkan ketenarannya saat mendistorsi filsafatnya, doktrin yang muncul atas dasar pemuliaan negara otoriter, dipandang sebagai suatu entitas organik lebih unggul dari individu terdiri di dalamnya dan didedikasikan untuk kebijakan nasional dengan perang sebagai instrumen prestasi Natonal.

Sekolah Sejarah Jerman

Untuk Herder, mungkin dipengaruhi oleh Vico, adalah terutama karena pendekatan baru untuk sejarah sebagai kehidupan masyarakat, daripada peduli dengan eksploitasi raja, negarawan, jenderal dan orang-orang besar lainnya yang disebut. Tapi orisinalitas tertentu Herder dan pengaruh adalah karena keyakinannya bahwa budaya dan masyarakat yang berbeda mengembangkan nilai-nilai mereka sendiri berakar dalam sejarah mereka sendiri, tradisi dan lembaga, dan kualitas hidup manusia dan ruang lingkup untuk mengekspresikan diri tinggal tepatnya di pluralitas ini nilai-nilai, setiap masyarakat yang dibiarkan bebas berkembang dengan caranya sendiri.

Dari fermentasi ini ide muncullah sekolah Historical besar Jerman abad nineteeth, yang salah satu awal off-tunas cara sekolah sejarah yurisprudensi yang berkaitan dengan nama Savigny.

F.K. von Savigny

Savigny menolak hukum alam. Baginya sistem hukum merupakan bagian dari budaya masyarakat. Hukum itu bukan hasil dari tindakan sewenang-wenang legislator tetapi dikembangkan sebagai respon terhadap kekuatan impersonal dapat ditemukan di semangat nasional rakyat. Ini Volksgeist "realitas yang unik, akhir dan sering mistis" itu, Savigny percaya, terkait dengan warisan biologis orang.

Savigny berhasil menggunakan teori Volksgeist untuk menolak Kode Perancis dan pindah ke kodifikasi di Jerman. Sebagai hukum hasil Jerman tetap, sampai tahun 1900, hukum Romawi disesuaikan dengan kondisi Jerman dengan suntikan ide lokal tertentu. Tapi Savigny bukan hanya sebuah teori. Sebagai sejarawan dia mengatur dirinya tugas mempelajari program pembangunan hukum Romawi dari zaman kuno sampai negara yang ada sebagai landasan hukum perdata Eropa kontemporer. Hal ini menyebabkan dia berhipotesis bahwa semua hukum berasal adat dan lama kemudian diciptakan oleh aktivitas hukum. Dia mengakui bahwa "dalam waktu paling awal yang sejarah otentik meluas, hukum akan ditemukan sudah mencapai karakter tetap, khas orang-orang, seperti bahasa mereka, cara dan konstitusi.

Agak seperti Spengler abad kemudian, Savigny melihat bangsa dan negara sebagai suatu organisme yang lahir, dewasa dan diclines dan mati. Hukum adalah vitl bagian dari organisme ini. "Hukum tumbuh dengan pertumbuhan, dan memperkuat dengan kekuatan rakyat, dan akhirnya meninggal pergi sebagai bangsa kehilangan kewarganegaraan nya. Bangsa dan hukum mereka melalui tiga tahap perkembangan. Pada awal bangsa ada "politik" unsur hukum; ada prinsip-prinsip hukum yang tidak ditemukan dalam undang-undang, tetapi merupakan bagian dari "keyakinan nasional" (Volksglouben). Prinsip-prinsip ini adalah "secara implisit ada dalam transaksi simbolis resmi yang memerintahkan penghormatan yang tinggi dari populasi, membentuk tata bahasa dari sistem hukum dari negara muda, dan contitute salah satu karakteristik utama sistem. Dalam hukum periode yang tengah mempertahankan ini "politik" elemen yang ditambahkan "teknis" unsur keterampilan hukum. Periode ini adalah puncak dari budaya hukum rakyat dan adalah waktu ketika kodifikasi layak. Sangat diharapkan hanya