Strouthes D.P. Law and Politics: A Cross-Cultural Encyclopedia
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LAW AND
POLITICS
A
CROSS-CULTURAL ENCYCLOPEDIA
ENCYCLOPEDIAS
OF
THE
HUMAN EXPERIENCE
David
Levinson,
Series
Editor
LAW AND
POLITICS
A
CROSS-CULTURAL ENCYCLOPEDIA
Daniel
P.
Strouthes
ABC-CLIO
Santa Barbara, California
Denver, Colorado
Oxford, England
Copyright
©
1995
by
Daniel
P.
Strouthes
All
rights reserved.
No
part
of
this publication
may be
reproduced, stored
in a
retrieval system,
or
transmitted,
in any
form
or by any
means, electronic,
me-
chanical,
photocopying, recording,
or
otherwise, except
for the
inclusion
of
brief
quotations
in a
review, without prior permission
in
writing
from
the
publishers.
Library
of
Congress
Cataloging-in-Publication
Data
Strouthes, Daniel.
Law and
politics:
a
cross-cultural
encyclopedia/Daniel
Strouthes.
p. cm. —
(Encyclopedias
of the
human experience)
Includes
bibliographical
references
and
index.
1. Law and
politics—Encyclopedias.
I.
Title.
II.
Series.
K487.P65S77 1995
340'
.03'—dc20
95-46014
ISBN
0-87436-777-8
(alk.
paper)
02
01 00 99 98 97 96 95 10 9 8 7 6 5 4 3 2 1
(he)
ABC-CLIO,
Inc.
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Cremona Drive, P.O.
Box
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Barbara, California
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This
book
is
printed
on
acid-free paper
Manufactured
in the
United
States
of
America
Preface,
ix
Maps,
xiii
ABANDONMENT,
3
ACEPHALOUS SOCIETIES,
3
ADOPTION,
4
ADVERSE
POSSESSION,
7
AGE
SET,
8
ANARCHY,
10
ARISTOCRACY,
10
ASSOCIATIONS,
10
AUTHORITY,
14
AUTOCRACY,
16
BAND,
19
BIG
MAN,
22
BLACK
MARKET,
24
CANON LAW,
27
CAPITAL PUNISHMENT,
28
CHARTER
MYTH,
30
CHIEF,
30
CITIZENSHIP,
33
CIVIL LAW,
37
CIVILIZATION,
37
CLASS,
38
COLLECTIVE LIABILITY,
41
COMMON LAW,
42
COMPARATIVE
LAW,
43
CONDOMINIUM LAW,
46
CONFESSION,
47
CONSTITUTION,
48
CONTRACT,
58
CORPORATION,
61
COUP,
63
CRIME,
65
CUSTOMARY
LAW,
70
DEMOCRACY,
75
DISOWNMENT,
75
EQUITY,
77
EXPROPRIATION,
77
EXTORTION,
78
FACTION,
81
FAMILY
LAW,
84
FEUD,
86
FISSIONING,
88
V
CONTENTS
CONTENTS
FRAUD,
90
FUNCTIONS
OF
LAW,
90
FUNDAMENTAL
LEGAL CONCEPTIONS,
91
GERONTOCRACY,
93
GUARDIAN,
94
HEADMAN,
95
HOMICIDE,
97
INHERITANCE,
103
INTERNATIONAL
LAW,
108
JURISDICTION,
117
JURISPRUDENCE,
118
JUSTICE,
125
KINGSHIP,
129
LAW,
133
LAW
ENFORCEMENT,
134
LEADER,
136
LEASE,
138
LEGAL ANTHROPOLOGY,
140
LEGAL
DECISION,
147
LEGAL
FICTION,
148
LEGAL REALISM,
148
LEGAL
RIGHT,
148
LEGALISM,
149
LEGITIMACY
IN
LAW,
154
LEGITIMACY
IN
POLITICS,
156
LICENSE,
158
LITIGATION,
159
MARRIAGE,
163
MARXISM,
165
MILITARY SOCIETIES,
170
MISPRISION,
172
MONARCHY,
172
MULTIPLICITY
OF
LEGAL LEVELS,
173
NATURAL
LAW,
179
OATH,
181
OLIGARCHY,
183
ORDEAL,
183
OWNERSHIP,
185
PACIFICATION,
187
PATRIA
POTESTAS,
189
PATRON-CLIENT
RELATIONSHIPS,
190
PERSONAL
PROPERTY,
192
PERSONALITY
PRINCIPLE
OF
LAW,
192
PLUTOCRACY,
193
POLITICAL ANTHROPOLOGY,
193
POLITICAL CORRUPTION,
198
POLITICAL ECONOMY,
201
POWER,
203
PROCEDURAL
LAW,
203
PURGE,
208
REAL
PROPERTY,
211
REASONABLE
MAN,
213
REBELLION,
214
RECIDIVISM,
216
RESjUDICATA,
219
REVENGE,
220
REVITALIZATION
MOVEMENTS,
222
RIGHTS,
CHILDREN'S,
225
RIGHTS,
HUMAN,
227
RIVALRY,
232
SANCTION,
235
SEGMENTARY
LINEAGE,
235
SELF-REDRESS,
237
SERVITUDE,
243
SERVITUS,
244
SLAVERY,
245
SORCERY,
249
STATE,
250
STATUS
AND
RANK,
254
SUBSTANTIVE
LAW,
255
TERRITORIAL PRINCIPLE
OF
LAW,
257
TERROR,
257
vi
CONTENTS
THEFT,
257
WAR,
267
THEOCRACY,
259
WORLD
SYSTEM,
272
TREATY,
260
TRESPASS,
263
Bibliography,
275
TRIBE
AND
TRIBALISM,
263
Illustration Credits,
285
TRIBUTE,
265
Index,
287
vii
Law and
politics
are two
central features
of all
human
cultures. Politics
is
about
the
ways
in
which power
is
exercised
in a
society. Because
power
is
exercised
by all
members
of
every soci-
ety,
politics
is a
cultural universal, that
is, it is
found
in all
cultures. Law, because
it
also deals
with
the use of
power,
is a
component
of
poli-
tics.
But law
also encompasses those principles
of
behavior
that
the
people
in a
society think
are
so
important that they must
not be
violated.
Is
law,
like politics,
a
cultural universal, common
to all
societies? Some experts have argued
that
law
exists only
in
technologically advanced
so-
cieties,
particularly those
in the
West.
They
as-
sociate
the law
with black robes, thick tomes,
wood-paneled court rooms,
and
juries.
When
they
go to
Mongolia,
to
central
Africa,
or to
Native
American communities
in
northern Que-
bec and do not see
these things, they assume
that
law
does
not
exist
in
these places.
But
while some societies lack these
West-
ern
features
of
law, every society does have
so-
cial
and
cultural institutions that
we
know
by
the
term law.
All
societies have legal authorities
(whom
we
usually call judges)
who
make deci-
sions
in
cases
of
dispute, decisions
that
are
regu-
larly applied (applied
the
same
way in
similar
situations)
and
made
on the
basis
of
principles
that
can be
stated. Furthermore, these decisions
state
the
rights
of one
party
and the
duties
of
the
other
in
relation
to the
principle.
These
prin-
ciples
we
know
as
laws. Every single known lan-
guage
has a
word that
is
synonymous with
our
English word
"law";
only
the
English word
"law"
is
different,
in
that
it
alone
refers
not
only
to the
principles
behind legal decisions
but
also
to
leg-
islation,
the
rules made
by
legislators.
In
short, there
is
very good behavioral
and
linguistic evidence that
law is
universal
to all
societies.
So, if
both
politics
and law are
univer-
sal,
why
should
we
bother
to
learn about
the le-
gal and
political systems
of
societies other than
our
own?
We
need
to
know about legal
and po-
litical systems
for
three main reasons.
First,
to
acquire practical knowledge
so
that
one
can
participate
in the
political
and
legal
af-
fairs
of one s own
society.
A
good example
of
this
is the
training
one
receives
in law
school,
which
is
geared toward
a
knowledge
of the law
of
one
society,
so
that
one can
practice law.
In
this type
of
learning,
it is
perfectly reasonable
to
restrict
one s
focus
to the
legal
or
political sys-
tem of the
society
in
which
one
will
be
active,
although
it is
always better
to
have
a
wider base
of
knowledge than
that
provided
by a
study
of
one
legal
or
political system.
Second,
to
learn about
the
unique
features
of
an
historical event
and to
draw attention
to
that which
is
different
about that event. Here
too,
it is
reasonable
to
have knowledge
of
only
one
political
or
legal system,
the one
belonging
to the
society being studied, although
for
ana-
lytical purposes
it is
always better
to
have
a
wider
base
of
knowledge.
Third,
to
understand
the
concept
of law as
a
whole
from
a
scientific
point
of
view.
With
this approach
we ask
about
how law and
poli-
tics work, what their component parts are,
what their
functions
are, etc.,
so
that
we can
IX
PRI;I;ACI:
PREFACE
make
generalizations about
law and
politics
across
cultures.
We
want
to be
able
to
say,
for
example,
that
law
always does
x
y
or
that
it al-
ways
changes
in
way
y
when
a
society
is
exposed
to
influence
z.
In
order
to
understand
the
concepts
of law
and
politics
this
well,
it is
necessary
to
under-
stand them
as
they
are in all of
their
manifesta-
tions.
We
cannot understand
law
without
understanding
law in
Morocco,
in an
American
Indian band
in
Brazil,
in a
Thai
village, etc.
If
we
were
to say
that
we can
understand either
law
or
politics
by
studying just
one
society's
ex-
ample,
it
would
be
like claiming
that
we
could
know
all
about
the
subject
of war by
studying
the
American Revolutionary War.
It
cannot
be
done.
Not
only
do
other wars occur
for
com-
pletely
different
reasons,
but
they have greatly
differing
tactics, strategies, weapons,
and
his-
torical
developments. Imagine
if
Norman
Schwarzkopf,
who led
allied military
forces
in
the
Persian
Gulf
War,
had had
only
the
strate-
gic and
tactical knowledge
that
could
be
gained
from
studying
the
American Revolutionary War.
It
would have been
a
disaster, because
he
would
not
have been able
to
make generalizations about
or
predict
the
actions
of the
enemy.
In the
scientific study
of law and
politics,
scholars
try to
make generalizations
and
predic-
tions about
the fields of
law
and
politics
as
whole
entities
as
well
as
their component concepts.
One
example
of how
this process works should show
this approach clearly.
For
many decades,
if not
centuries,
it was
established
as a
valid generali-
zation about
law
that
all
legal systems made
use
of the
principle
of res
judicata (Latin
for
"the
thing that
has
been decided"),
the
principle that
all
legal disputes
are at
some point
finally de-
cided, i.e., they cannot
be
further
pursued,
by
appeal
or by any
other means,
by any of the
par-
ties associated with
the
case. Legal scholars
as-
sumed
that
res
judicata
is
universal
to all
societies
because
it was
found
in
every society whose
le-
gal
system
had
been studied,
and
because
it
seemed
to
fulfill
a
main function
of the
law—
putting disputes
to
rest
forever.
This
function
was
assumed
to be
central
to the
nature
of the
law
in
that
it was
believed
that
law
existed
to
put
disputes
to
rest with
finality so
that
the
people involved could
get on
with their lives
and
with doing
the
productive work
that
keeps soci-
eties
going.
In
other words,
if
there
was no res
judicata
in
law,
why
would
law
exist?
This
generalization stood
as
absolute
fact
for
a
long time until
the
1980s,
when
the
anthro-
pologist Rebecca French discovered that
for
civil
law
cases (cases
of
private wrongs),
the
Tibetan
legal system does
not
have
res
judicata.
The
rea-
sons
for
this
are
discussed
in the
entry
on res
judicata. But,
for the
purposes
of
scientific
en-
quiry,
it is
enough
to say
that
the
generalization
concerning
res
judicata
is
false
for at
least
one
society,
thereby demonstrating
it to be not
uni-
versal
to all
legal systems.
In
this manner
the
science
of
human behavior advances.
Without
French
s
study
of
Tibetan
law,
we
would
be
fur-
ther away
from
a
true knowledge
of law as it
actually exists
in
human societies
and
about
the
function
of law
generally.
And it is for
this rea-
son
that law, politics,
and any
other
field of hu-
man
behavior must
be
studied across
all
cultures
if we are to
arrive
at an
accurate portrayal.
The
goal
of
this volume
is far
more modest
than
to
achieve
a
scientific
breakthrough. Rather,
it is to
provide readers with
the
definitions
and
cross-cultural patterns
or
variations
of
some
of
the
central concepts
of law and
politics.
In ad-
dition, there
are
some concepts, such
as
mispri-
sion, that
are
quite uneven
in
their distribution
in
the
legal systems
of the
world,
and for
this
reason
alone they
are of
interest
and are
included
here. Each entry provides
a
definition
of the
concept
and
gives some background data that
the
reader
may use to get a firmer
understand-
ing of the
concept.
I
have tried
to
incorporate
data
from
a
variety
of
different
societies
so
that
the
reader
can
have
a
multidimensional view
of
the
manifestations
a
concept takes
in
different
X
PREFACE
legal systems.
In
every entry,
my
goal
has
been
to
provide
a
precise
and
accurate definition
for
an
important concept,
as
well
as
some concise
background detail
and
discussion, using data
gathered
from
a
variety
of
legal
and
political sys-
tems
around
the
globe.
In
many entries,
I
have
included
an
illustrative example
of a
concept
from
U.S.
law and a
contrasting example
or ex-
amples
taken
from
another legal system
or
sys-
tems
so as to
make
the
multicultural approach
more clear.
I
have also where relevant included
the
text
or
extracts
of
text
from
original legal
documents
so as to
provide readers with
a
knowl-
edge
of how law is
practiced
in
various societies.
Acknowledgments
I
would like
to
thank
a
number
of
people
for
help that
I
have received
in
writing this book.
First,
I
would like
to
thank
my
parents
for
their
emotional
and financial
support.
I
thank
my
graduate school advisor,
Leopold
Pospisil
of the
Anthropology Department
of
Yale
University,
for
his
wisdom
and for a
significant portion
of
the
ideas
on law and
politics that
I
have used
in
this book.
I
also thank
the
Micmac people
of
Eskasoni,
Nova
Scotia,
who
with great patience
and un-
derstanding helped
me to
learn about their cul-
ture
and
society.
I
thank them
as
well
for
their
friendship,
which
has
been
of
great personal
value
to me.
Finally,
I
wish
to
thank
The
Jacobs Funds
of
the
Whatcom
Museum Society,
the
Canadian
Embassy,
and the
American
Philosophical
So-
ciety
for
their
financial
support
of my
work with
the
Micmac
in the
years 1985 through 1987.
XI