Anthropological school

HoebelE. Adomson Hoebel has made a valuable contribution to Sociology of Law through his book, The Law of Primitive Man: A study in Comparative Legal Dynamics.In this book, he has discussed the nature of primitive law and its relationship with Religion and Magic.He also talks about four primary functions of law:Defining Relationships:- What acticivities are permitted and what are ruled out so as to maintain the minimal integeration between individual and society.

Hoebel2) Taming the force and directing power to maintenance of order:- It is allocation of authority and the determination of who may exercise physical coercion as a socially recognised privilege-right, along with the selection of the most effective forms of physical sanction to achieve the social ends that the law serves.3) The disposal of trouble cases as they arise, and4) Redefining relations between individuals and groups as conditions of life changes Duties, rights and powers:- Purposive definition of personal relations is the primary law-jobs.

HoebelOther aspects of culture likewise work to this end, and, indeed the law derives its working principles (jural postulates) from postulates previously developed in the non-legal spheres of action.The important contribution of law to the basic organisation 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 limitation of its demand-rights on others.Its duties to others, its privilege-rights and powers as against others.

HoebelIts duties and liabilities to the contemplated or attempted acts of others.This is the bare-bones job(Karl Llewellyn).It is ordering of the fundamentals of living together. No culture has a specific starting point.Look here! Lets have a little organisation here or we will 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 recognised as the foundation of social order.

Hoebel2)Taming of the force.a)Allocation of authority to exercise coercive physical force- is something almost peculiar to things legal.Customs have regularity, and so does law.Custom is sanctioned so is law but sanction of law may involve physical coercion, if need be.Law has teeth that can bite.Biting can be done only by those persons whom the law has allocated the previlleged rights.

HoebelIn primitive society, authority is shifting and temporary.The tendency is to allocate authority to the party who is directly Injured.In few cases, it has also been observed that in primitive societies, authority is directly exercised by the community on its own.It takes the form of Lynch law but it is rare.Power defined through allocation of legal authority is by its nature trans-personalised, yet by the nature of men it can never be wholly depersonalised.

Hoebel3) Troubled cases:In accordance with the pre-existing laws.Clean-up cases, suppress or penalise the illegal behaviour and get back to normalcy.Doctor, Garage repair.It is not ordinarily concerned with grand design as in the first case nor it is concerned with re-defining as in the fourth case.4)

Hoebel4) Redefining of Relations:- New inventions, new ideas, new behaviours keep creeping in.- The process of trans-culturation takes place.- Law is called upon to decide hat principles shall be applied to conflict of claims rooted in disparate cultures.Do the new claims fit comfortably to the old postulate?Must the newly realized ways of behaving be wholly rejected and legally suppressed because they are out of harmony with old values?The old postulate be modified here and altered there to get legal acceptance?

HoebelWhat is to be done?Troubled cases generated by the new ways keep marching in.The fourth law-job presses for attention.The relations are re-defined according to the changes that have creep in.

BohannanBohannan in The Differing Realms of Law (1965) has criticised Malinowskis approach being too undiscriminating between customary law as a whole and law in particular.According to him, law comes into being when customary, reciprocal obligations further becomes institutionalised and in such a way that society continues to function on the basis of rules.

BohannanBohnnan criticise Malinowski by stating that, it is not law that is kept in force by.reciprocity and publicity. It is custom.Law is rather, a body of binding obligations regarded as right by one party and acknowledged as the duty by the other.It has been re-institutionalised within the legal institutions so that society can continue to function in an orderly manner on the basis of rules so maintained.

BohannanReciprocity is the basis of customs, but the law rests on the basis of this double-institutionalisation.Central in it is that some of the customs of the some of the institutions of society are restated in such a way that they can be applied by an institution designed specifically for that purpose.To understand double institutionalised norms or laws is to break-up the law into smaller components, capable of attaching to persons or groups and so to work in terms of rights and their reciprocal duties or obligations.

BohannanBohannan says that for law to work there must be:1).A way of disengaging disputes from a particular Institution and engaging them in a legal institution.There must be specific ways in which difficulties can be disengaged from the institutions in which they aroseand which they now threaten and then be engaged within the process of the legal institution.

Bohannan2). A framework for handling the dispute and coming to a decision.- There must be ways in which trouble can now be handled within the framework of the legal institutions. 3). A way of re-engaging it into a previous non-legal institution.- There must be the ways in which the new solutions which thus emerge can be re-engaged within the processes of the non-legal institutions from which they emerged.

BohannanA legal institution is one by means of which the people of society settle disputes that arise between one another and counteract any gross and flagrant abuses of the rules of atleast some of the other institution of society.There are two aspects of legal institutions that are not shared with other institutions of the society.

BohannanLegal institutions alone must have some regularised way to interfere in the malfunctioning of the non-legal institutions in order to disengage the trouble-case.There must be two kinds of rules in the legal institutions:- Those that govern the activities of legal institutions itself (procedural law).- Those that substitutes or modifications or restatements of the rules of the non-legal institutions that has been invaded.(Substantive law).

BohannanLegal rights are the only those rights that attach to norms that have been doubly institutionalised.They provide a means for seeing the legal institutions from the standpoint of the persons engaged in them.Law is never a reflection of custom rather it is always out of phase with society.Indeed, more highly developed the legal institutions, the greater the lack of phase, which not only results from the constant re-orientation of the primary institutions, but also is magnified by the very dynamic of the legal institutions themselves.

BohannanThus, it is the very nature of law, and its capacity to do something about the primary social institutions, that creates the lack of phase.Moreover, even if one could assume perfect legal institutionalisation, change within the primary institutions would soon jar the system out of phase again.If there were ever to be perfect phase between law and society, then society could never repair itself, grow and change, flourish or wane.

BohannanIt is the fertile dilemma of law that it must always be out of step with society, but that people must always attempt to reduce the lack of phase.Customs must either grow to fit the law or it must actively reject it.Law must either grow to fit the custom, or it must ignore or suppress it. It is in these very interstices that social growth and social decay take place.

BohannanSocial catastrophe and social indignation are sources of much law and resultant changes in custom.With technical and moral change, new situations appear that must be legalized.Its application is somewhat different to developed and to less developed legal system.In developed legal system, legal level are traditionally concentrated in political decision-making groups such as legislature, non-legal social institutions sometimes take very long time to catch up with the law.

BohannanOn the other hand, in less developed legal system, it may be that little or no popular demand is made on the legal institutions and therefore little real contact exists or can be made to exist between them and primary institutions.Law can become one of the major innovators of society, the more effective, the greater peoples dependence on it.

GluckmanGluckman in The Judicial Process Among the Barotse of Northern Rhodesia(1967) shows:that it is obedience which is contemplated, not disobedience, in a society that rests on reciprocity but also possess a mechanism to deal with disputes.Such a society, he observed had developed the reasonable man test quite independently of the English judiciary.This assertion has given rise to much dispute.

GluckmanGluckman study identified the process of dispute resolution for barotse as involving:Reconciliation rather than ordering of sanctions.Sanctions, which will be applied only where reconciliation has failed or it is not possible.The obedience to the custom rested on the reciprocity of services.

GluckmanReasonable man concept:General phrase in Lozi is muttu yagana;Muttu- person.Yagana-mind, wisdom, intelligence, intellect, reason, sense, commonsense. An upright man embraces both sense and uprightness:The case of biased father.Standards of upright man:-Does not have mistress, but law only requires that a man should not neglect his wife while he pursues mistresses and allow him mistresses if they are not married to others.

GluckmanThe judgments are given on the behaviour of a person occupying specific social position.A good husband.She is a wife.S/He is a child.The case of biased father.The man who helped his mother in-law cross a ford. The case of eloping wife: your father has no child.It is of sociological importance because it covers the whole social process of judging people against norms.

The Second ApproachThe First approach is to define law and then how simple society fit into it.The second approach was- to understand law, we should set some boundaries for our studies.We must decide which feature of simple society we want to study.Roberts in his book, Order and Dispute (1979) suggests that the best framework is to look at order the way order is preserved in the society and how disputes are considered and solved.

The Second ApproachFreed from the corrupting influence of our ideas and rules, courts and coercion, a more complete and correct picture of primitive society can be acquired without distortion.This approach has found wide varieties between societies.Various factors push them into considering the processes of society and how they affect the individual and how he views them.

The Second ApproachDisputes are seen as a necessary part of the society and are considered from a longer term perspective.Attempts to compromise, various forms of outside intervention and how the society returns to normal.In some societies, discussion is not used to settle disputes and force is.

The Second ApproachThey help in gaining a better perspective on law and ultimately answers the question of how societies are controlled and organizations are present in different societies.The two approaches are complementary.We can learn not only about primitive law but also about our present law.

The Second ApproachThe wider perspective enables us to see that law is not a product of modern society as primitive society with wide variety of methods show us that courts and strict laws are not the only way to control society and deal with disputes.Above all, the importance of negotiation and concillation found in many studies helps to solve the dispute in present time.

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