Law and the trouble with defining law.
Law as a concept has proved famously difficult to define, one because its definitions are often circular and two, because each successive definition improves upon or negates assumptions made by previous definitions. Today, the concept of law is more important than ever, with increasing globalisation and merging of cultures as well as the rise of human rights. Though we no longer see law as a matter of simple crime and punishment, we still are unable to answer precisely what law is. Is it possible to actually define law for all human beings?
John Austin famously defined law as “the command of a sovereign, backed by the threat of a sanction”, with the assumption that the sovereign is habitually obeyed (Austin 1869) This definition was challenged by Professor HLA Hart who in turn gave us one of the most famous definitions of law that is still being used today. Professor Hart defines law as a system of primary and secondary rules (not commands). According to Hart’s definitions, primary rules are those that either forbid or require certain actions and can generate duties or obligations. For a citizen with an internal perspective to the law, the existence of a primary rule will create an obligation for him or her to behave a certain way (Hart, “The Law as a Union of Primary and Secondary Rules”, p.74). Secondary rules allow for changes in primary rules and can be said to be rules about the rules (p.76). These can be of three broad types: rules of recognition, rules of change and rules of adjudication (p.76-77).
Primary rules must be combined with secondary rules in order to advance from the pre-legal to the legal stage of determination There are two minimum requirements which must be satisfied in order for a legal system to exist: 1) private citizens must generally obey the primary rules of obligation, and 2) public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct (Hart ‘The Concept of Law’,p.110) If both of these requirements are not satisfied, then primary rules may only be sufficient to establish a pre-legal form of government. Hart argues that the foundations of a legal system do not consist of habits of obedience to a legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated (p.116) Hart and Austin are both flag-bearers of the positivist idea of law as requiring enforcement and a legislative body. However, while it is often understood that law is an integral part of society, this idea is itself problematic because it rests on mainly Enlightenment understandings of social needs and institutions (or even prior to that, as when Hobbes writes “Law is the formal glue that holds fundamentally disorganised societies together.”). We have come to accept Law as universal when the fact of the matter is that many societies around the world still function without either a police force/army or a legislating body (requirements in both Hart’s and Austin’s definitions). Simon Roberts writes that popular ideas about law derive directly from the Judeo-Christian tradition of ‘commands’, somewhat like Austin’s definition of law (Roberts 2005: p.2).
The naturalistic theory of law poses a problem to the assumptions made by the Positivists, namely the idea that law is independent of acts of legislators and that it has a permanent character. Positivist ideas of law often have religious or moral overtones, tending to include the good of society or the direction of divine reason as the sanction behind law. These two schools of thought have dominated our ideas about law to such an extent that we are unable to look beyond them or to question their definitions. A big problem, in fact the biggest in my opinion, is that law has come to be equated firmly with the state and with governance. The opening chapter of Eugen Ehrlich’s great work on the sociology of law lamented the ‘the tragic fate of juristic science in its focus on the rules followed in judicial decisions and its devotion to state law’ (Ehrlich 1936: p 13)
Seek and ye shall find?
Recent scholarship has sought to fight this problem by adopting the idea of ‘legal pluralism’ as an approach, which recognises an increasing number of types of law that are not state laws. Yet the fact remains, legal pluralism is still looking for law. Italian comparative lawyer Rodolfo Sacco claims in his paper ‘Mute Law’ that ‘law preceded any individual design…and lived, even without a lawgiver’ (Sacco 1995: p.455) and that ‘Wherever we find a society we will find law’ (p.456). Geertz writes about law as cosmology or better explained as social imagination. (Geertz 1983: p.234) Another argument that tries to generalise law beyond the state is offered by anthropologist Leopold Pospisil, who believes the origin and production of law is derived from the idea of the leader and the following. Pospisil sets out to show that law is present at every level in human society, identifiable in a series of ‘legal levels’ beginning from the family. (Pospisil 1978: p.40). At each level of society there are authorities making decisions, decisions have certain attributes that yield legal rules (43). Thus, for Pospisil rules derived from authoritative decision represent the form of law. (40)
At this point in the essay, I would like to quote Paul Bohannan as a reflection of how I feel about the insistence on ‘identifying’ law and legal forms in all societies across the world:
The anthropologist’s chief danger is that he will change one of the folk systems of his own society into an analytical system, and try to give it wider application than its merits and usefulness allow (Bohannan 1957: p.5)
I believe that it is not just anthropologists, but social scientists of various disciplines who time and again make this mistake when it comes to problems of law. For example, the Nuer have no law and normal functions of legislation are not carried out by anyone. Law operates on the basis of force and therefore is weakest among groups at farthest distance from one another, in which case there are no sanctioned ways of redressing a grievance. Prophets hold the most significant ‘leadership’ position or the closest to it, in Nuer society. All disputes are generally resolved by fighting, since there are no higher authorities to appeal to and a man must fend for himself. Leopard-skin chiefs may be consulted for dispute resolution. Evans-Pritchard himself remarks that ‘The lack of governmental organs among the Nuer, the absence of legal institutions, of developed leadership, and, generally, of organized political life is remarkable’ (Evans-Pritchard 1940: p.181) He passes off their kinship system as a sort of replacement for a legal system which maintains the ‘ordered anarchy’ (ibid) of their lives, however to his credit he does not try to identify it as law.
Malinowski and Trobriand ‘law’
“In looking for “law” and legal forces, we shall try merely to discover and analyze all the rules conceived and acted upon as binding obligations, to find out the nature of the binding forces, and to classify the rules according to the manner in which they are made valid. We shall see that by an inductive examination of facts, carried out without any preconceived idea or ready-made definition, we shall be enabled to arrive at a satisfactory classification of the norms and rules of a primitive community, at a clear distinction of primitive law from other forms of custom, and at a new, dynamic conception of the social organization of savages. (Malinowski 1967: p.15-16)
As many scholars have noted, Malinowski’s impact on the field of legal anthropology has been tremendous. Conley and O’Barr write that Malinowski’s ethnographic analysis was primarily based on the observations that Trobriand society was in general orderly, that there was no evidence of police or courtrooms and that people indulged in acts of resistance despite the general orderliness (Conley, O.Barr 2002: p 856) They also found that his work showed the natives not as ‘slaves to customs’ but as thinking people bound together by the forces of economic reciprocity. Malinowski saw the rights, obligations and prohibitions born of this reciprocity as the foundation for civil law and went as far as to completely dismiss the existence of criminal law in Trobriand society.
A particular instance from Crime and Custom was used by Malinowski to prove that the Trobrianders had something that should be called law. A 16 year-old boy had jumped to his death dressed in ceremonial garb as a response to being shamed publicly for having broken the incest taboo. Malinowski had known that breaking the incest taboo was hardly grim enough to have demanded this action and it was in fact so common that there was even magical relief for those who had indulged in it. Malinowski found out that incest cases were regularly overlooked over if they were “carried out sub rosa with a certain amount of decorum, and if no one in particular stirs up trouble” (p. 80). However, the girl’s lover had shamed the boy and thus this was a particularly sticky case. Before plunging to his death, the young boy had explained himself and asked his relatives to avenge his death.
Conley and O.Barr (p.861) note
“Malinowski’s interpretation of this case yielded several significant observations. First, he viewed the story as further proof that the Trobrianders had something that deserved to be called law. The people had no police to call, no lawyers to consult, and no courts to hear the case. They did, how- ever, share the belief that a norm had been violated. And they had well defined and generally accepted, if highly flexible, methods to deal with the transgression. A related inference arose from this very flexibility. Malinowski saw in the facts of the case a complex interaction of norm, violation, tolerance, alternative remedy (magic), and ultimately, capital punishment. He viewed this complexity as compelling evidence that “primitives” were not bound by “slavish adherence to tradition” (p. 81)”
In my opinion, it would be a far stretch to mark the young boy’s suicide as evidence for an existing law. Rather, Malinowski uses the category ‘law’ to put forth his observations because it is the closest to what he is trying to describe.
What is the force behind adherence to norms in stateless societies? Without the fear of prisons and police, why do members of tribal societies conform? Yelpala (1992: p.440) traces this to a simple system of positive re-enforcement and social ridicule and even ostracisation for bad behavior. He gives the example of the Dagaaba people of Ghana:
the Dagaaba are concerned with both the law abiding and intransigent citizens. They recognize that individuals should-be rewarded for compliance with social, moral and legal norms just as they should suffer penalties for disobeying them. A reward and penalty system similar to that of the Melanesian societies exists whereby good and law abiding conduct of a particularly outstanding nature is publicly acknowledged, praised, supported and thereby rewarded; whereas bad conduct is equally ridiculed and disgraced…At least among the Dagaaba, both rewards and penalties are made to operate side by side” (ibid).
He also stresses that Western legal systems are designed to inflict punishment and penalties – only negative re-enforcements.
In summation, I think it is necessary to state that law as understood by the Western world that generated it, cannot be thought to exist universally. Though aspects of law such as conflict-resolution and punishment are universally experienced, it is not in the interest of the social sciences to pick and choose from their cultures what it seeks to find in others. As Chanok says, anthropology has made the mistake of equating law with jurisprudence and has made it difficult to mark out what law actually is. The case with Africa highlights the fact that law is not the primary means of settling dispute in any society, not even industrialised ones. It is impossible to discern whether law exists in all societies because I do not believe that currently accepted definitions of law can be extended conveniently to include all forms of social justice and retribution, even in the societies where these definitions arose. Therefore, one cannot establish whether law exists in a true sense, since any formal definition of law will be politically charged and include and exclude aspects that are socially relevant only to the society where the definition originates from.
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