One approach, exemplified by Malinowski, is to treat as laws those rules in a preliterate society that cover the same areas of behavior as our own laws. Many anthropologists, however, have rejected this approach as a misrepresentation ok the nature of these rules. Malionowski certainly demonstrates the existence of regular, purposeful patterns of, for example, gift-exchange amongvarious segments of Trobriand society, but to designate these customary practices as a kind of commercial law is in the view of many scholars a distortion.
Instead of looking for rules corresponding to our laws, many anthropologists have resorted to the idea of the enforcement of rules by society. Thus Radcliffe-brown writes that or organized legal sanctions, and schapera argues that although “theTswana have no written or even oral codes setting aside legal rules from all others”, nonetheless “the rules of conduct distinguished from the rest by the ultimate sanction of judicial enforcement may for all practical purposes be regarded as the “laws” of the Tswana”. A broader, but essentially similar statement of this view is Hoebel’s famous definition: “ a social norm is legal if its neglect orinfraction is regularly met in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting”.
The basic approach exemplified by these views is to define legal rules in a preliterate society in term of sanctions and procedures established in order to redress violations of those rules. This approach seems to work wenfor certain kinds of rules in certain societies, but it contains several assumptions that must be more closely examined: that there exist sanctions in all societies with law, that we can define certain procedures as legal, and that disputes which arise in preliterate societies can normally be analyzed in terms of a rule and its violation.
To take the last of these assumptions first (I shallreturn to the first two points later), it is apparent from anthropological reports of tribal societies that not all disputes involve the clear violation of a rule. Sometimes two or more rules, or no rule, mar apply to a given situation, or disputes may arise simply because the legitimate claims or courses of action of two parties come into conflict. To illustrate this consider a case from the Arushaof northern Tanzania. Briefly summarized, the dispute concerns a piece of land in between two men’s fields. Ownership of the land ad long been disputed an it remained uncultivated until one of the men, without notice, hoed up and planted for himself a narrow strip of this disputed land. The other man brought the matter to the parish assembly, whence it was referred to local moot. The moot agreedthat the defendant had acted imprudently in hoeing up the disputed strip, but he was allowed to retain the piece of land, since the plaintiff had a considerable amount of land for himself whereas the defendant had little. The plaintiff had also lost much of his support in the community by the overly aggressive way in which he had brought the case and by his unwillingness to be generous to hismore needy neighbor.
One could say that this case concerns the violation of a rule, perhaps the rule that one should not cultivate land not clearly one’s own, but such an analysis would be inadequate. In the final settlement the defendant`s apparent violations of this rule is ignored in favor or other rules, such as that one should be generous toward a needy neighbor, or that one should be...