Law and Justice in Simple Societies | Anthropology Optional for UPSC PDF Download

Law and Justice in Simple Societies

Definition and Meaning of Law
Law can be defined as a social norm whose violation beyond permissible limits evoke a formal procedural response initiated by an individual or group that possesses the socially recognized privilege right determining guilt and of imposing sanctions upon the wrong doer. However, there is considerable amount or controversy regarding the definition of the primitive law because we do not find legal institutions in many of such societies. Radclffie-Brown states that some simple societies have no law although they have customs which are supported by sanctions. On the other hand, in tribal societies we find normative rules designed for protecting human life and property, the prohibition of incest, the condemnation of adultery and other sexual offenses and the rules designed to inhibit greed and inordinate ambition. Such rules are also found in modern societies. They are enforced through sanctions. The deviants from these rules fear death, physical ruin and expulsion from community -inflicted either by the society or through the supernatural agencies.
Hobhouse and Wilson have postulated legal institutions, as    necessary to take the existence of law. Malinowski states that "the fundamental sanction of law is to curb certain natural propensities and control human instincts and to impose a non-spontaneous compulsory behavior". That is to say, firstly legal sanctions operate when violent human emotions tend to burst through the limits bf the customary behavior and secondly there is integral relation and similarity between psychological motives leading to legal offences and those upon which the effectiveness of the legal sanctions depends.

Law and Custom
Law especially primitive law, cannot be considered apart from the totality of the customary rules governing human behavior.
Law is not merely a part of a vague continuum of custom. Let us compare the following statements: "it is custom meal at mid-day" and "it is the custom to kill a man convicted of witchcraft". Different, human motives and involved in maintaining the effectiveness of the two customs. The former is observed largely as a matter of convenience because no one particularly wants to deviate from it. In the second case, violent anti-social passions are involved; accordingly most stringent penalty is imposed by the society. This give us a clue to a possible distinction between law and custom. It-may be held that law only enters where selfish anti-social and disruptive tendencies are likely to violate customary usage Drastic measures are taken to prevent this.
We normally find a coordinated system of specific rules which define correct behavior in social situations and which are supported by various types of sanctions. Sanctions are essentially mechanisms of validation of form of human behavior which make custom effective.
What do we mean by the legal aspect of the institution in human societies? In the context of the civilized, we should define law in terms of murder, theft, bigamy or in terms of such offences as selling groceries after fixed hours, parking cars in wrong places, etc. Offences such as theft, adultery, incest occur with monotonous regularity in primitive societies also. Therefore all societies have rules which direct human behavior and control human impulses. Mostly they are obliged because it is usually easier and profitable to conform. There are certain rules which repress human passions such as greed, fear, hate, jealousy, variety and sexual desire. But the nature of human impulses is such that they render quite useless the usual forces of social restraint. In such cases, the society meets by an appeal to or harnessing of those very forces which tend towards disruption.
Radcliffe-Brown wrote that some simple societies .have no law although they have customs. Evan-Pritchard writes that within the Nuer tribe there is law (settlement of disputes, payment of compensation etc.). But if a Nuer is injured by another tribal, there is no arbitration; it is justified only through retaliation. Every society has rules that it calls laws, others call them as customs. Both laws and customs expect a man to believe in a particular way. Some people use a safer word  to denote them as customary laws.

Law And Custom - A Comparison
In order to get a deeper insight into the nature of Law and Custom, we may establish a difference between the two.
(1) Law is a make Custom is a growth Law is explicitly and deliberately made by the definite power of the stale,  where as custom is a group procedure that h as gradually emerged, without expressed enactment, without any constituted authority to' declare it; to apply it and to safeguard it. Custom .emerges spontaneously without and guide or direction. Law is consciously created and put into force at the moment of its enactment. In other words, law is a make, custom is a growth.
(2) Law needs a special agency for enforcement Custom does not Law is applied by a special agency and is sanctioned by an organized coercive authority. Custom does not need any special agency for the application it is enforced by spontaneous social actions. No physical penalty visits a violator of custom whereas punishment is meted out to one who violates the law.
(3) Law is specific Customs are not Law is specific, definite and clear. One can know what the . laws of the land are. Customs are not definite and clear. They are not codified in any single book so that it becomes difficult to know all the customs of the land.    
(4) Law is more flexible and adaptable than Customs Law can readily adjust itself to changing conditions whereas customs cannot be ready changed. Customs are relatively fixed and permanent. In times of crisis, a law can be immediately enacted to meet the emergency. A sudden change cannot be brought about by a custom. The more dynamic the society, the less is the reliance placed on traditional customary rules and more it is placed on newly enacted legislations. Roscoe Pound stated that "Law must be stable and yet it cannot stand still”. Thus law is more flexible and adaptable than custom. This is because law can be introduced; amended or abolished with relative ease, where as to reform or adjust the custom is an arduous task.
(5) Customs fade and disappear without formal abolition and without recognition by any authority, but laws disappear only when are abolished by a recognized authority just as formal enactment of law is necessary for it to come into effect, so its formal abolition is necessary to stop its binding influence.
(6) Law is more idealistic than Custom Law tends to be more idealistic than customs, it is the offspring of mind and directed to aims which are far above the actual practice of society, custom is the product experience and mainly concerned with the daily routine of life. ‘ Law reforms those customs with are out of tune with the changing harmony of the society. It even may abolish certain customs which strike a discordant note.
(7) Law generally deals with matters which are vital to the life of society whereas the subject matter of custom is more ordinary and familiar.
Though law is different from custom, it does not mean, however, that they are completely poles apart. Both a custom and law supplement and complement each other Activities which were once performed unconsciously are now consciously and deliberately formulated. According to Maine, there is always a necessity for law to adjust itself to social needs and social opinion. When a law expresses the moral consensus of the society, it will be effectively enforced, if law is not backed by firm moral consensus, its effective enforcement is less likely. Law divorced from custom is bound to become artificial and would not be seriously observed by the people. For example, the Sarda Act prohibiting marriage of children is more honoured by people in its breach than observance. A law which does not give official sanction to customs loses a certain force of sentiments, which customs have behind them and which help in obedience. Customs are more important than laws and upon them in great measure, law depends. “The law touches us but here and there, customs are what vex or sooth, corrupt or purify, exalt or debase, barbarize or refine us by constant steady, uniform, insensible operation, like that of air we breath in".
Customs consolidate law and facilitate practice. If the law is not aided by customs, it cannot succeed. To quote james Wilson "of all yet suggested the mode for the promulgation of human law by custom seems the most significant and most effectual. It involves in it internal evidence of the strongest kind that the law has been introduced by common consent and that this consent rests upon the most solid basis - experience as well as opinion. This mode of promulgation points to the strongest characteristic of liberty as well as of law. For a consent thus practically given must have been given in the freest and most unbiased manner". Laws' which are not supported customs have little chance of being enforced. Certainly a law cannot succeed permanently if it is opposed by deep-seated customary attitudes.
Custom is an important source of law. The passing of laws against certain principles can be effective when the mores underlying those practices are in the process of disintegration and a considerable number of people longer hold to them because then it is mostly a matter of forcing the reluctant ones to accept the new legal way.
Just as custom supplements law, so law also supplements custom. Law functions as an educator. It creates a moral consensus where none exists. Today Jaw is being used to change obsolete customs like un touch ability, dowry system, child marriage etc. In the primitive societies customs served to regulate the conduct of life, but in modern societies, customs become blurred and are challenged by newly emerging loyalties and interests. The custom becomes less a guideline to conduct, sets limits less, where men are motivated not so much within family and territorial community as by shared interests in secondary group associations. Today, law takes an even larger part in social control. There are several reasons for it.
(1) Customs lack an agency of authority Jurisdiction due to which the interests of the community do not Remain fully secure. Law with special agency of enforcement is required if interests are to be pursued in peace.
(2) It is a shortcoming of custom that it cannot adapt itself readily to changing conditions. Being fixed and permanent, customs change very slowly. Social necessities are always in advance of custom. Therefore, to meet the social necessities and for quick adaptation to changing conditions, another type a code is demanded; a code which does not slowly evolve but one which is made exclusively for the situation. Consequently, a whole system of law sprang up for regulation. Societies became so convex and devices were so new that deliberate regulation became necessary.
(3) Since there are different customs of different groups, there have to be a single and uniform rule of behavior where it is desirable, it is necessary to supplement custom by law.
The above reasons justify the growth of law into the voluminous codes of modern states.
Law and Social Control Law is the subject which can be treated in more than one context. The functional significance of law is to control the most violent, passionate and disruptive propensities of the individual by the frustration, actual or potential, of the same or similar  propensities in the interests of the social order. The legal function of law extends to the correction of minor offences, to the settlement of disputes and to the regulation of administrative procedure. However, the primary function of law is defined as something vital to the existence of every human society. It is certainly an aspect of government because government is expected to maintain law and order. Just because it deals with the rules of conduct, it also belongs to a wider field of social control.
Radcliffe-Brown wrote that law is "social control through the systematic application of the force of the politically organized society. He feels that "fundamental rules of all societies are the same. They safeguard life a limb rights in wives and rights in property". Gluckman says that societies without courts Have 'rules of law' but not legal rules. He calls such societies as legal. Radcliffe Brown calls them as ‘‘jural". The term is derived from the Latin word 'jus' meaning a right.

Origin and Nature of Primitive Law
Law among most of the peoples is riot the result of deliberate planning. It has spontaneous growth. When an individual has developed an atypical behavior it is an idiosyncrasy. When some people share it, a fashion comes into existence. When junior generation is effected i.e., when it is passed down to the next generation, it results in a custom or usage. When does custom transform into law? Hoebel and Lowie says that when somebody communally takes steps to deal  with a breach of custom, it results into law, emerges as a result of slow and*spontaneous process of growth through customs and usages. In primitive societies; we do not normally find legislation as we find in civilized societies. What we find is that there is only a customary Jaw; Hartland says that law in a primitive or tribal society is the totality^ of the customs. Whenever laws come into existence, the whole society is responsible for it but not a selected people like legislature. Characteristics of Primitive Law
1. Primitive law is conceived, largely in terms of kinship rather than in territorial terms i.e., sociopolitical organization is based more on kinship ties.
2. Primitive law coincides more closely with ethical notions, hence, public opinion in primitive societies originate from the moral notions of the concerned! There is no exception for it and so protection no against it. Hence, in primitive societies public opinion is more, powerful.
3. It fails to discriminate public and private wrongs in the crimes as in the texts of our jurisprudence.
4. Primitive law is predominantly a criminal law (law relating to criminal offences]. The scope for civil law (law relating to ordinary private matters.) in primitive jurisprudence is limited.
5. Everybody in primitive society is its representative and policeman.
6. As laws coincide with ethical norms, a breach of norm would often amount to sim Sin is feared as it is believed to bring supernatural punishment.
7. In primitive societies intention and provocation in determining legal actions are irrelevant because of supernatural punishment.
8. The main characteristic feature of the primitive of law is the kinship tie and collective responsibility of kin. When there is no state, each kin group has to depend and protect its members. Without collective responsibility it is difficult to defend people.
9. Evidence in giving justice in primitive societies is of two ways.
(i) The accused is asked to go through ordeals like putting hands in boiling water or oil etc., if they accused escapes without any injury he is considered not guilty.
(ii) Oath is administered in the name of God.
10. Punishment in primitive societies is normally eye for eye, murder for murder, leg for leg etc.

Differences between Primitive Law and Modern Law The following are the important differences between the Primitive law and the Modern law