Strouthes D.P. Law and Politics: A Cross-Cultural Encyclopedia
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PROCEDURAL
LAW
This
description
is of
orthodox political
economy.
It is
"orthodox"
in
that
it
remains faith-
ful
to the
style
of
analysis used
by
Marx
and
Engels. More recently, political economists have
been studying noncapitalist societies
and
show-
ing
that
even here there
are
upper classes
that
exploit members
of the
lower classes, just
as
Marx found
in
capitalist
and
feudal societies.
The
term
political'economy
is
today
often
used
to
refer
to an
actual economic system
in
which
the
economy
is
manipulated politically
by the
powerful
for
their
own
economic
benefit
and to
the
economic detriment
of
other people.
The
term
has
often
been used
to
describe
the
eco-
nomic
relationship between colonial powers (the
politically powerful
who
benefit economically)
and
the
indigenous peoples
of the
colonies
who
suffer
economically
from
the
colonial
relationship.
See
also
WORLD
SYSTEM.
Alverson,
Hoyt.
(1978)
Mind
in the
Heart
of
Darkness.
Marx, Karl,
and
Friedrich Engels.
(1968)
Karl
Marx
and
Friedrich
Engels:
Selected
Works
in
One
Volume.
Power
is
defined
as the
ability
to
influence
the
behavior
of
another
in a
way
that
is
desired.
We can
see, therefore, that
power
can
come
in
many forms.
There
is
mili-
tary power,
of
course, which
can be
used
to
force
an
entire nation
to
accede
to
another nations
demands.
There
is
also
the
power
a
child
may
have
over
his or her
parents when
she
sheds tears
to
induce them
to
behave
in the way
that
he or
she
wants.
One of the
more interesting sorts
of
power
to be
found
in any
society
is
supernatural power.
Many Jews, Christians,
and
Muslims attribute
supernatural
power
to
their God, even though
these same people
may
disdain
the
concept
of
magical causation
as
mere superstition.
The
Micmac, although
Catholic,
have
a
very
strong belief
in
supernatural power other than
that
coming
from
God.
They
believe
that
any-
one
with
great ability
or
skill
in one
kind
of ac-
tivity,
say
music,
lumber]
acking,
or
even speaking
the
Micmac language,
is
acknowledged
as a
kinapy
an
individual with supernatural power.
See
also
AUTHORITY; LEADER; POLITICAL
ANTHROPOLOGY
Lukes, Steven.
(1974)
Power:
A
Radical
View.
Strouthes, Daniel
P.
(1994)
Change
in the
Real
Property
Law
of
a
Cape
Breton
Island
Micmac
Band.
Procedural
law
regulates
the
legal process itself;
it
determines just
how le-
gal
actions
are
adjudi-
cated. Procedural
law
settles problems
of
juris-
diction, allocation
of
authority (who
is the
legal
authority),
the
sanctions that
may be
applied
in
a
particular case, court proceedings (such
as
whether
the
public
is to be
admitted
to the
court-
room),
and
matters pertaining
to the
process
of
appealing verdicts. Procedural
law
includes
the
laws
determining what
is a
proper legal hearing,
the
steps involved
in
such hearings, what con-
stitutes evidence
and
what evidence
may be ad-
mitted,
the
form
of
legal arguments
in a
legal
hearing,
who may
have standing
in a
legal case,
who may be
permitted
to
make arguments
in a
legal hearing,
if and in
what
form
testimony
is
203
PROCEDURAL
LAW
POWKR
PROCEDURAL
LAW
made,
and if and in
what
form
interrogation
takes
place.
In
short, procedural
law
regulates
all
facets
of the
conduct
of a
legal hearing
and
adjudication,
but not the
substantive laws
themselves.
One of the
parts
of
procedural
law in
some
legal systems
is the
making
of the
charge, which
outlines
the
offense
on
which
the
accused
is to
be
tried.
As
shown
in the
following decision
from
Rhodesia (now Zimbabwe),
the
particulars
of
the
charge
can be
very important (The
Rhode-
sian
Law
Reports
1966:
552-555).
REGINAV.HORNE
Appellate Division, Salisbury
Quenet,
J. P., and
Macdonald,
J. A.
2nd
August
and 2nd
September, 1966
Criminal
law-Copper
Control
Act
[Chapter
226]
-s. 6
(2)-contravention
of-essentials
ofof-
fence-not
alleged
in
charge-fatally
defective-
whether
appellant
can
waive
right
to
complain
of
irregularity
Appellant
was
charged with contravening
s. 6
(2)
of the
Copper
Control
Act
[Chapter
226],
but
the
charge omitted
to
allege that
the
per-
sons
from
whom
he
purchased
the
copper were
neither "dealers
nor
licensed
dealers."
It was
contended
by
appellant
that
this
was not an
essential element
of the
offence,
or, if it
was,
it
could
be
implied
from
the
charge. Alterna-
tively,
it was
contended that appellant
had
waived
his
right
to
complain
of the
irregular-
ity,
and the
proceedings were
not
vitiated.
Held,
setting aside
the
convictions
and
sentence:
(1)
That
the
words "other than
a
dealer
or
licensed dealer" constituted
an
essential
el-
ement
of the
offence,
and
were
not
simply
words
of
exception, exemption
or
excuse.
(2)
That
to
imply
an
essential element
of
an
offence,
from
a
charge which
did not al-
lege
it,
must mean that
an
accused
is
presumed
to
know
the
essential elements
of a
statutory
offence,
and, knowing them,
be
able
to
sup-
ply
any
words omitted
from
the
charge.
This
was
an
untenable argument.
(3)
That,
if a
charge disclosed
no
offence,
any
conviction under
it was
devoid
of
legal
effect,
and, even
with
an
appellant's
assis-
tance,
an
appeal court cannot validate such
proceedings.
M. R.
Tett
for the
appellant.
/
A. R.
Giles
for
the
respondent.
MACDONALD,
J.
A.:
The
appellant
was
convicted
of
contravening
s. 6 (2) of the
Cop-
per
Control
Act
[Chapter
226],
as
amended,
and
sentenced
to pay a fine of 30
pounds
or,
in
default
of
payment,
one
months imprison-
ment with hard labour.
Section
6 (2) of the Act
reads:
"No
person, including
a
dealer
or a
licensed
dealer, shall purchase
any
cop-
per
from
any
person other than
a
dealer
or
licensed dealer unless there
is
produced
to him by
such last mentioned person
such
documentary evidence
of his
title
to
sell such copper
as may be
prescribed
or a
certificate
of
clearance."
The
charge against
the
appellant reads:
"The accused,
at or
near Salisbury,
did
wrongfully
and
unlawfully
purchase
from
Mishek
and
Deni,
Africans there
being,
170
pounds
of
copper,
and the
said
Mishek
and the
said
Deni
not
produc-
ing at the
time
of
purchase
documentary
evidence
of
their title
to
sell such copper,
that
is to say
that
the
said Mishek
and
the
said
Deni
were
not at the
time
of the
purchase
in
possession
of a
certificate
of
clearance,
and
thus
the
said accused
did
commit
the
crime
of
contravening sec-
tion
6 (2) of the
Copper Control
Act
[Chapter
226]."
In the
course
of the
hearing
of the ap-
peal,
the
Crown submitted that
the
charge
is
fatally
defective,
because
it
omits
to
allege that
204
PROCEDURAL
LAW
Mishek
and
Deni
were neither dealers
nor li-
censed dealers.
Mr.
Tett
desires
that
the
appeal
be
con-
sidered
on its
merits,
and
submits
that
the
charge
is not
fatally
defective.
In
support
of
this submission,
he
contends that
the
words
"other than
a
dealer
or
licensed dealer"
and
the
words "unless there
is
produced
to him by
such
last mentioned person such documentary
evidence
of his
title
to
sell such copper
as may
be
prescribed
or a
certificate
of
clearance" con-
stitute "exceptions, exemptions, provisos,
ex-
cuses
or
qualifications" within
the
meaning
of
s.
134 (2) (b) of the
Criminal Procedure
and
Evidence
Act
{Chapter
31].
The
latter words
unquestionably constitute
an
"exception,
ex-
emption
or
excuse" within
the
meaning
of
that
section,
but the
former
words
are of the
very
substance
of the
offence
and, unless
it can be
said
that
those words
are to be
implied
in the
charge,
the
Crowns contention
that
it is fa-
tally defective must
be
upheld.
I am
satisfied
that
the
words "other than
a
dealer
or a
licensed
dealer" constitute
an
essential element
of the
offence,
for the
following reasons:
The
con-
duct prohibited
by the
section
is not the
pur-
chase
of
copper
but the
purchase
of
copper
from
a
person
who is
neither
a
dealer
nor li-
censed
dealer.
A
charge which alleged
no
more
than that
the
accused
had
purchased copper
would certainly
be
defective.
The
words con-
stitute
an
additional element
of the
offence,
and
are not
simply words
of
exception, exemp-
tion
or
excuse.
Mr.
Tett
submits,
in the
alternative, that,
although there
is no
express allegation that
Mishek
and
Deni
are
neither dealers
nor li-
censed
dealers, this allegation
is to be
implied
from
the
fact
that
the
charge clearly alleges
that
the
purchase
was
unlawful
by
reason
of
the
failure
of
Mishek
and
Deni
to
produce
ei-
ther documentary evidence
of
their
title
to
sell
or
a
certificate
of
clearance
at the
time
of the
purchase.
In
effect,
he
submits
that,
if the
Crown specifically alleges
that
an
accused per-
son
has
failed
to
comply with
the
requirements
of
an
"exception, exemption, proviso, excuse
or
qualification,"
the
Crown must
be
taken,
by
necessary implication,
to
have alleged
all
the
essential elements
of the
offense
itself.
The
basis
for
this submission, although
not
stated,
must necessarily
be
that
an
accused person
is
presumed
to
know
the
essential elements
of a
statutory
offence,
and, knowing them,
be
able
to
supply
any
words omitted
from
the
charge.
Mr.
Tetis
approach
is
clearly untenable,
and
Mr.
Giles
is
correct when
he
submits that there
is
nothing
in the
wording
of the
charge which
implies
the
inclusion
of the
words "other than
a
dealer
or a
licensed dealer."
Mr.
Tetfs
final
submission
is
that,
if the
omission
of
these words
is a
fatal
defect,
the
proceedings
are not
vitiated thereby, because
the
appellant,
in the
course
of the
hearing
of
the
appeal,
has
expressly waived
his
right
to
complain
of the
irregularity.
In R. v.
Henchel,
1920 A.D. 575,
SIR
JAMES
ROSE
INNES
said,
at p.
580:
"I do not
think that
any
court
of
appeal
would
be
justified
in
allowing
a
conviction
to
stand upon
a
charge sheet
which discloses
no
offence."
The
same view
was
expressed
by VAN
DEN
HEEVER,
J.
A.,
in
R.
v.
Preller,
1952
(4)
S.A.
452
(A.D.),
at
473:
"A
conviction
on a
charge which dis-
closes
no
offence
is, in
itself,
a
failure
of
justice
and a
legal impossibility,
and
should
not be
allowed
to
stand."
InRogerv.
R.,
1962
R.
&N.
385,MAISELS,
J.,
dealing,
on
appeal, with
a
charge which dis-
closed
no
offence,
said,
at p.
386:
"But
SCHRIENER,
A. C. J, at p.
280, points
out
what
INNES,
C.
J.,
says,
in
effect,
in
Herschel's
case,
is
that,
al-
though
a
defect
of the
kind
now
under
discussion could have been cured
at the
trial,
it
cannot
be
cured
on
appeal."
And the
learned judge concluded,
at p.
388:
"...
that,
as the
indictment discloses
no
offence,
this court
is
obliged
to set
aside
the
conviction."
205
PROCEDURAL
LAW
Since
the
charge under consideration dis-
closes
no
offence,
the
conviction
of the
appel-
lant
was
devoid
of
legal
effect,
and it
must
necessarily follow
that
this court,
as an
appeal
court, even
with
the
appellant's assistance,
is
powerless
to
validate
the
proceedings.
If, as
Mr.
Tett
has
endeavoured
to
establish
in
deal-
ing
with
the
merits
of the
appeal, there
are
certain
facts
which
the
Crown,
to its
advan-
tage, might have established
at the
trial
but
did
not, this court, indeed, would possibly
as-
sist
in
bringing
about
a
miscarriage
of
justice
if
it
were
to
hold
that
the
appellant
at
trial
was
placed
in
jeopardy
on a
charge under
s. 6 (2)
of
the Act
when,
in
law,
he was
not.
The
charge discloses
no
offence,
and the
conviction
and
sentence,
for
this reason, must
be set
aside.
QUENET,
J. P.,
concurred.
One of the
best described examples
of the
steps
taken
in a
proper legal hearing,
an
impor-
tant
part
of
procedural law,
is
that
of the Ti-
betan legal system
as it
existed before
the
Chinese invasion
in
1959.
The
progression
of a
civil
case
is as
follows.
In
order
to
initiate
a
proper legal action,
a Ti-
betan
litigant
had to
present
his or her
case
to
the
court,
and the
court
had to
declare
it a
proper
case
before
accepting
it. The
petitioner
was
then
called
before
the
court,
and the
petition pre-
sented.
Next,
the
petitioner
was
questioned
by
the
legal authorities.
Following
this,
the
other
party
to the
dispute
was
called
before
the
court,
and
he or she
made
a
reply
to the
petition.
The
petitioner then made
a
response
to the
second
party
s
reply,
after
which
he or she was
ques-
tioned again. After this
took
place,
the
second
party
had a
chance
to
reply again
to the
petitioner's
statements.
It was
following this that
any
evidence pertinent
to the
hearing
was
pre-
sented.
At
this point, each party
to the
case
was
brought
before
the
court
and
questioned
by the
legal authorities.
The
next stage
of the
hearing
saw
witnesses called
before
the
court
to
give their
statements,
and
this
was
followed
by
their ques-
tioning.
If the
court demanded more informa-
tion,
it
ordered
an
investigation, which
was
presented
formally
to the
court.
If the
court
deemed
it
necessary,
the
veracity
of the
parties
to the
case could
be
tested.
If the
court
found
either party
to be
lying,
it
punished
him or
her.
The
court then made
its
decision
and
wrote
it
down
in a
special document. Both parties were
recalled
before
the
court
to
hear
the
decision,
and
they
then
left
to
ponder
it.
After
a
period
of
time, both parties were again recalled
to the
court
to
give their opinions
of the
decision.
The
par-
ties
then either signed
a
clause
signifying
their
agreement
to the
decision,
or
refused
to
sign
it,
signifying
that
they were opposed
to the
deci-
sion
as an
unfair
one. Copies
of the
decision were
then exchanged
by the
litigants.
The
case
was
closed
in the
following man-
ner.
The
court accepted
the
litigants'
signatures
or
refusals
to
sign
the
decision.
Any
payments
of
court costs were then made.
The
terms
of the
decision,
usually involving
the
payment
of
dam-
ages
from
one
party
to
another
or the
sanction-
ing of
either
or
both parties
by the
court, were
then carried out. Following
this,
the two
parties
to the
case made
a
formal reconciliation with
each
other. Finally,
as the
case
concluded,
the
court
had the
option
to
send
the
case
to a
higher
authority,
and
either
or
both
of the
parties
had
the
option
to
appeal
the
case.
The
series
of
steps
in the
legal hearing
in-
volving
a
crime
in
Tibet
were usually
fewer
be-
cause
the
identity
of the
criminal
was
usually
known
and the
facts
of the
case
were more eas-
ily
determined.
The
identity
of the
alleged crimi-
nal
was
usually known because most
Tibetans
lived
in
small towns
in
which everyone knew
everyone
else, including those
who
frequently
behaved
badly
or who
held grudges.
Once
a
crime occurred,
the
victim
or his or
her
family either made
a
petition
to the
legal
206
PROCEDURAL
LAW
authorities
or
informed their local governmen-
tal
official
of the
crime.
If the
alleged criminal
was
considered likely
to try to
escape,
he or she
was
arrested immediately, before
the
official
in-
vestigation
of the
crime.
The
crime
was
then
investigated
by a
clerk
from
the
district
office.
The
investigation consisted
of
collecting
evi-
dence
and
interviewing
the
victim
and his or her
family.
At
this point,
the
identity
of the
alleged
criminal
was
clearly determined
by the
investi-
gating
officials,
and he or she was
arrested
if he
or
she had not
been previously. From this point
until
the
legal authority made
his
decision
in the
case,
the
criminal
was
presumed guilty,
and any
show
of
remorse
he or she
made
was
weighed
in
his or her
favor
in
determining sanctions.
The
criminal
was
brought
before
the
court
and
the
crime
was
announced
by the
govern-
mental
official
who
presided
as the
legal author-
ity
in the
case.
The
criminal
was
then whipped
and
placed
in
jail,
and
sometimes
in
stocks
and
fetters
as
well.
The
legal authority then began
to
review
the
case
and to
hear evidence.
The
criminal,
the
victim,
and the
victim's
family
were
interviewed
by the
judge.
If the
facts
established
in
the
hearing
did not
conform
to the
criminal's
testimony,
the
judge
had the
option
of
having
the
criminal whipped.
If the
criminal's
testimony continued
to
dis-
agree
with
the
testimony
of the
victim
and the
victim's
family,
as
well
as the
other
facts
estab-
lished
in the
case,
the
case could
be
prolonged
indefinitely.
In
most instances,
on the
other hand,
the
legal authority
was
able
to
devise
a
writ-
ten
statement
of the
facts
with
which
all
parties
could agree.
The
statement, which also included
the
sanctions
to be
imposed upon
the
criminal,
was
read
to the
assembled parties
to the
case,
who
in
turn were given time
to
discuss
the
provisions
of
the
statement privately. Unless
the
case
was
to be
referred
directly
to a
higher legal author-
ity,
all
parties
to the
case then signed their agree-
ment
to the
statement.
If a
long-term
punishment, such
as
laboring
for the
victim
or
victim's
family
or
being kept under house arrest,
was
to be
imposed, guarantors
for the
imposition
of
these sanctions
had to
sign
the
statement
as
well.
Following
the
signing,
the
criminal
(or his
family,
employer, landlord,
or the
owner
of the
land
on
which
the
crime
was
committed) paid
the
monetary
fines
imposed
by the
legal author-
ity.
Court
costs
and
fees
were then paid. Finally,
the
physical sanctions imposed upon
the
crimi-
nal
were carried out, which
may
have included
whippings
and
fetters.
As
mentioned above,
the
Tibetans made
use
of
various devices, including oaths,
to
test
the
veracity
of the
parties
to a
dispute. Persons tak-
ing an
oath would have
to
loosen their hair
and
remove
amulets, knives,
and
religious strings.
Then,
while
standing before
the
portrait
of a
powerful
god or
goddess, they would swear that
they were telling
the
truth.
The god or
goddess
was
believed
to
punish those
who
lied.
In one
case,
a
woman
who
took
an
oath
that
she had
not
committed sorcery began
to
bleed
from
her
nose
shortly
after
taking
the
oath,
and she
later
died,
her
death being
attributed
to the
goddess
Lhamo,
before
whose portrait
she had
taken
the
oath.
If
both
parties
to a
case
agreed
to an
oath,
the
oath
was
considered
to
settle
the
case
be-
cause
the
supernatural sanctions
that
the
gods
and
goddesses applied
in the
case
of
liars were
so
sure
and so
severe. However,
not all
people
believed
in the
efficacy
of an
oath,
and
they were
allowed
to
prohibit
it
from
the
legal hearing.
Also, some people were alleged
to
employ
de-
ception
in the
taking
of
oaths,
and
opposing
parties
could
refuse
to
accept
the use of the
oath.
If the
established
facts
of a
case were
too
vague
for a
clear decision
to be
made
by the au-
thorities,
the
parties would
often
agree
to
allow
the
case
to be
decided
by the
rolling
of the
dice.
Again,
the
power
of the
supernatural came into
play.
Before rolling
the
dice, shouts were uttered
for
the
Dharma Protector Gods
to
make
the
dice
207
PURGE
roll
in
such
a way as to
indicate
the
truth
of the
case.
Each party rolled,
and the one who
rolled
the
highest number
won the
case.
It was
believed
that
if the
dice gave
the
highest score
to the
party
in
the
wrong,
the
gods would later punish
the
party
who won
unfairly.
The
Tibetans
also
had a
device, called
a Bab
or
Ba>
which they employed
to
ensure
that
con-
tractual obligations would
be
honored.
It set
forth
fees
that
a
party
who did not
perform
ac-
cording
to a
contract would have
to
pay.
Finally,
the
Tibetans
at one
time made
use
of
ordeals.
First,
the
person
who was to
give tes-
timony spoke
and
then
was
given
a
test
in
which
supernatural
forces
would determine
if the
tes-
timony
was
true
or
false.
These
tests typically
consisted
of a
person coming
in
contact with some
very
hot
item, such
as
boiling
oil or
water
or hot
stones.
In one
type
of
ordeal,
the
persons tongue
was
touched
to a
piece
of hot
iron.
The
individu-
als
were then examined
the
next day,
and if
blis-
ters were
found
they were deemed
to
have lied
in
giving testimony.
The use of
ordeals
in
Tibet
had
ended decades
before
the
Chinese invasion.
Yet
another
way of
handling
a
legal case
is
presented
by the
Native American people
of the
Cochiti
Pueblo
of New
Mexico.
There,
the
pro-
cedure
is
much simpler
and
faster.
A
person with
a
complaint brings
it to the
pueblo
s
governor.
The
governor himself investigates
the
matter.
He
then makes
a
decision
on the
basis
of the
infor-
mation
he has
collected
and
upon legal prece-
dent.
If he
cannot make
a
fair
decision
on
this
basis
alone,
he
convenes
a
court
of his
lieuten-
ant
and
members
of the
council.
The
court
then
hears
the
testimony
of the
parties
to the
case
and
of all of the
witnesses.
The
officers
of the
court then discuss
the
matter
and
render
a
deci-
sion.
The
governor then announces
the
decision
and
the
sanction,
if the
offender
warranted one;
sanctions
in the
early
1950s
included
fines,
com-
munity service,
and
whippings.
See
also
OATH;
ORDEAL;
SUBSTANTIVE
LAW.
Barton,
Roy F.
(1973
[1949])
The
Kalingas:
Their
Institutions
and
Custom
Law.
French, Rebecca. (1990)
The
Golden
Yoke:
A Le-
gal
Ethnography
of
Tibet
Pre-19
59.
Lange, Charles
H.
(1990
[1959])
Cochiti:
A
New
Mexico
Pueblo,
Past
and
Present.
The
Rhodesian
Law
Reports,
1966. (1966)
Ed-
ited
by H. G.
Squires.
A
purge
is the
removal
of
suspected
or
actual
political opponents
from
any
sort
of
human group, whether they
be po-
litical,
geographic,
or
commercial
in
nature.
Purges usually
refer
to the
expulsion
of
relatively
large numbers
of
people
at a
single time.
In
com-
mercial
groups, purges
may be
accomplished
through firings.
In
more purely political groups,
purges
are
accomplished through deportations,
exiles,
imprisonments,
and
killings.
The
most
infamous
use of
purges
was in the
former
Soviet Union, especially under
the re-
gimes
of
Lenin
and
Stalin. During
the
Soviet
period, direct
political
action
was
used
to
bring
about purges
far
more
frequently
than
was the
legal system, although
the
legal system
was not
inactive either. Under Stalin,
for
instance,
the
legal code
was
enlarged with
a
great number
of
new
criminal
offenses
that
were
of a
political
nature.
Most
of the
truly large-scale purges took
place under
Lenin's
CHEKA
(All-Russian
Ex-
traordinary Commission
for the
Suppression
of
Counterrevolution
and
Sabotage)
and
Stalin's
NKVD
(People's
Commissariat
for
Internal
Affairs),
political action groups with tremendous
powers
to
kill
or
imprison
in
labor camps
with-
out
legal trials.
The
activities
of the
CHEKA
208
PURC;I:
PURGE
A
purge
removes
political
opponents
either
physically
or
geographically
from
any
group.
Adolf
Hitler
determined
that
Jews
should
be
purged
as
part
of
his
goal
of
an
Aryan nation. Jewish women
and
children
were
gathered
in
Warsaw,
Poland,
in
1943
to be
sent
to
concentration
camps
and
then
killed.
were
directed against opponents
of
communism
and
the
Communist party.
The
NKVD,
on the
other hand, attacked huge numbers
of
ordinary
Soviet citizens
who
were suspected
of
disloyalty
to
Stalin,
and
even political functionaries within
the
government whom Stalin believed disloyal.
However,
the
victims
of the
NKVD
left
behind
kin and
friends,
and
often
these people wished
to
avenge these deaths.
This
led the
NKVD
to
kill
or
imprison
the kin
arid
friends
of
those
whom they
had
killed
or
imprisoned
in the first
place.
In
turn,
the
relatives
and
friends
of
these
people
had to be
dealt
with,
and so the
killings
went
on in
ever-widening circles,
and
before
Stalin
was
done
with
his
purges, millions
had
been
killed,
the
majority
of
them Soviet citizens
who had
once been loyal
to
him. Another rea-
son
for the
purges
was to fill the
labor camps;
Stalin needed
a
great deal
of
cheap labor
for his
building
and
industrialization plans,
and he be-
lieved
that
the
best
way to do
that
was
with
forced
labor.
The
legal system
was
especially decimated
by
the
purges,
and it was
left
with virtually
no
personnel
with legal training.
loffe,
Olympiad
S., and
Peter
B.
Maggs.
(1983)
Soviet
Law in
Theory
and
Practice.
209
REAL
PROPERTY
Real property
refers
to
property
that
is not
movable, such
as
land
and
buildings
that
are
permanently attached
to
the
land.
Real property also includes
the
miner-
als
beneath
the
surface
of the
land.
The
term
real
property
was
given this name because earlier
English speakers believed
that
land
and
perma-
nent buildings
had
more intrinsic worth than
moveable
items,
or
"personal
property,"
and
thus
was
more genuine
or
"real."
The
term
real
prop-
erty
may
also
be
abbreviated
as
realty. Real
prop-
erty
law is
sometimes called
land
tenure.
The
laws
that
govern
the use and
transfer
of
rights
in
real
property are,
in
European, U.S., Canadian,
and
many
other legal systems,
different
from
those
regulating personal property.
In the
United States,
for
example,
sale
of
rights
in
real property usually
requires
the use of a
deed, whereas
the
sale
of
rights
in
personal property usually does not.
Likewise, real property
is
frequently leased,
whereas
personal property
is not
normally leased.
The
division
of
property along these lines does
not
appear
in all
cultures.
In
many socie-ties,
for
example, buildings
are
personal property.
Among
the
Ifugao
of the
Philippines,
for
example, houses
are
frequently disassembled
and
moved
by
their owners. Houses
are
sometimes
sold
and
then moved
for use by the
purchaser.
Among
the
Ifugao,
it is the
house
that
has
value,
not the
land upon
which
it is
situated. Likewise,
trees
such
as
coconut,
coffee,
and
areca
trees also
have
value
and are
owned, whereas
the
land upon
which they grow
is
valueless
and
therefore can-
not be
sold
or
owned.
Under
the
laws
of the
United
States,
Canada,
and the
countries
of
Europe,
all
land
that
is not
owned
by
individuals
or
groups
of
individuals
is
owned
by the
state
or the
crown.
This
is not so in
many societies, including
the
Ifugao.
There,
only three kinds
of
land
may be
owned.
Land
that
is
used
for the
cultivation
of
rice
and
forested land
are
owned
by an
individual
or
family
until they
are
sold
or
given
to
another
party. Land used
for the
cultivation
of
sweet
potatoes
is
owned
by the
cultivator
so
long
as he
cultivates
it;
when
it
grows over
with
weeds
and
trees,
it may be
used
by
anyone
who
cares
to
clear
the new
vegetation
and
grow another
few
crops
of
sweet potatoes.
All
other land
is
unowned
or
free
land
that
may be
used
by
anyone.
The
types
of
ownership
are
linked
to the
length
of
time
that
the
land
is
valuable. Forested lands provide
wood
in
perpetuity unless
too
many trees
are
cut.
Likewise, rice
fields,
or
padis,
produce rice
as
long
as
there
is
sufficient
water
for the
rice plants
to
thrive. Both
of
these types
of
land
are
owned
in
perpetuity.
As
well,
they
may be
pawned
to
another
if the
owner needs money;
the
lender
has
the
right
to
farm
the
rice
fields
until
the
owner
pays
back
the
money
he has
been lent.
Sweet potato
fields
only produce usable amounts
of
sweet potatoes
for a few
years, until weeds
grow
to the
point
that
cultivation becomes more
work
than
it is
worth.
Thus,
sweet
potato
fields
are
only owned
as
long
as
they
are
cultivated.
Among
the
highly mobile Naskapi Indians
of
Labrador, Canada, there
was
traditionally
no
ownership
of
land.
The
only rights
the
Indians
211
R
REAL
PROPERTY
had, which could
be
transferred, were
rights
of
ususfructus,
or
usufruct.
Ownership
of
land,
which
is a
bundle
of
rights including those
of
usufruct,
made
no
sense
to the
Naskapi
because
they were only interested
in
using
the
animals
and
trees
on the
land
before
they moved
on to a
new
place where
the
animals
and
trees were
in
greater abundance.
The
various bands within
the
area
would give each other
usufructuary
rights;
for
instance,
one
band gave another
the
right
to
hunt porcupines
on the
land
it
used
in
exchange
for
the
right
to
hunt bears
on the
other band's
land. Individuals
and
families
had
exclusive
hunting rights
on
specific
tracts
of
land,
but
this
may
have been because
of
competition
for
fur-
bearing animals
as a
result
of the
fur
trade, which
was
introduced
by
white people.
These
tracts
of
land have been called hunting territories,
and
their
use is
governed
by the
headman
of the
band,
who
must also resolve disputes over hunting ter-
ritory use.
Hunting
territory boundaries
are
made
up of
natural
features
of the
land, particu-
larly streams
and
rivers.
The
Gusii people
of
western Kenya actually
developed
for
themselves
a new
system
of
real
property
law in the
period
from
1925
to
1950.
This
development occurred
as a
result
of a
great
increase
in
population.
The
Gusii
are
farmers
who
raise
both
crops
and
livestock.
Prior
to the
1920s,
there
was
plenty
of
land
for
everyone
to
farm.
If one
could
not get
land
from
one's
par-
ents,
one
simply went
into
the
bush
and
cleared
whatever clan-owned land
one
wanted (all Gusii
lands
were owned collectively
by
clans).
By the
1920s,
however, there were
so
many people
in
Gusii society that land
was
becoming
insuffi-
cient
in
quantity. Land that
one man had in
mind
for
his
young
son's
future
use
often
turned
out
to be
land that
a
neighbor
had in
mind
for his
own
son's
future
use. Also, people began
to put
up
fences
and
hedges
to
keep their neighbors
from
encroaching
on
their
own
farm
lands. Dis-
putes over land became more common,
and for
the first
time people began
to
take these dis-
putes
to
legal authorities.
Legal
authorities
weighed
the
strength
of
each claim
to
land
and
made decisions
as to
where
the
proper bound-
ary
lines should lie.
They
also made decisions
in
cases
concerning
the
future
use of
land (for
the
later
use of the
children
of the
parties
to the
dis-
pute).
In
such
cases,
they decided
the
boundary
lines
of
lands that were
to
become
farms
years
later.
The
main purpose
of the
decisions
of the
Gusii legal authorities concerning land
was not
to
preserve
the
rights
of
those
who had
strong
claims
to
land ownership,
but to
provide
all
Gusii
with relatively equal amounts
of
land.
Thus,
the
goal
of the
Gusii land tenure system
is
very dif-
ferent
from
our
own.
Our
land tenure system
strives
to
protect
the
ownership rights
of
valid
landowners,
no
matter
how
much land
one
owns.
Thus,
in our
society, there
are
people
who may
own
real estate worth hundreds
of
millions
of
dollars, while other people
are
homeless.
The
Gusii system strove
to
eliminate great
differences
in
the
amount
of
land members
of the
society
could own,
at
least
in its
earliest stages.
Various
aspects
of a
society's
real property
law can
tell
a
great deal about other aspects
of
the
culture. Among
the
Yoruba
of
Nigeria, there
traditionally
was no
such thing
as
tenancy.
This
was
because
the
land
for a
community
was
con-
trolled
by the
community
and
owned
by
indi-
viduals.
Thus,
if one is by
descent
a
member
of
the
community,
one
thereby
has
automatic
ac-
cess
to
land ownership.
If one is a
stranger
to
the
community, then
one
either becomes
a
natu-
ralized member
of the
community,
and
thus able
to own
land within
its
bounds,
or
moves
on to
another place. Naturalization meant,
for a
man,
that
he
married women within
the
community
and
swore loyalty
to the
community's chief.
See
also PERSONAL PROPERTY.
Barton,
Roy F.
(1969
[1919])
Ifugao
Law.
212
REASONABLE
MAN
Lips, Julius
E.
(1947)
"Naskapi
Law."
Transac-
tions
of the
American Philosophical
Society
37(4):
378-492.
Lloyd, Peter
C.
(1962)
Yoruba
Land Law.
Mayer, Philip,
and
lona
Mayer. (1965)
"Land
Law in the
Making."
In
African
Law:
Adap-
tation
and
Development,
edited
by
Hilda
Kuper
and Leo
Kuper,
51-78.
REASONABLE
MAN
The
term
reasonable
man
refers
to a
society's
ideas
about what
is
reasonable
behavior
by
determining
what
a
reasonable
man
would
do in a
given situ-
ation.
These
standards
are not
part
of any
society's
codified law,
but
rather come into play
in
judicial proceedings
and
vary
from
society
to
society.
The
concept
of the
reasonable
man is
common
to all
legal systems, although
the
people
using
it may not be
able
to
state
it as a
distinct
concept.
Among
the
Barotse
of
Africa
the
concept
of
the
reasonable
man was
applied
in
determin-
ing
basic legal standards.
The
Barotse have
two
standards
in
their law:
(1) the
reasonable
man
and
(2) the
ideal man.
The
ideal
man is one who
behaves
in the
best possible manner
in all
con-
ditions. Such
a man
obviously does
not
exist.
But if one
behaves
at the
minimally correct stan-
dards
of
behavior,
one
behaves
as a
reasonable
man
would and, therefore,
in a
legal fashion.
In
Western legal systems
and
some other
places,
the
reasonable
man is a
hypothetical
man
who is
used
in the
judgment
of an
accused per-
son.
The
actions
of the
accused
are
compared
with what
a
reasonable, normal person would
do in the
circumstances
in
which
the
accused
found
himself during
or
after
the
commission
of a
crime
or
civil
offense.
Would
a
reasonable
man
who had
just committed
a
robbery
be
run-
ning down
the
street wearing clothes other than
athletic clothes? Yes.
The
shooting
of a
police-
man
by Lee
Harvey Oswald
was
consistent
with
what
a
reasonable
man
would have done
after
shooting
the
president
of the
United States
and
being confronted
by the
policeman. Acting
as a
reasonable
man
would
after
commission
of an
offense
is
taken
as a
form
of
proof
of
guilt.
The
concept
of the
reasonable
man
comes
up in the law in
many
different
guises
in
differ-
ent
societies.
It
does
not
always
refer
to
people
who
have committed crimes
and who are
being
judged
on the
basis
of
their behavior
after
the
crime.
For
example,
an
Ifugao
man or
woman
can
divorce
a
spouse
if
that
spouse
is
unreason-
ably
jealous
or
unreasonably lazy.
If an
Ifugao
person uses another person's rice field,
and the
owner wants
it
back,
the
owner must
pay the
one who
worked
the field for his
labor, unless
that payment
is
unreasonable.
Among
the
Nuer
of
Africa,
if two
groups
are
feuding with each other,
and a man
from
the
first
group kills
a man
from
the
second group,
the
killing
is
considered
a
malicious rather than
an
accidental
killing,
since this
is
reasonable
be-
havior
for
members
of
groups that
are
feuding
with each other.
The
same
is
true
for the
Kalingas
of the
Philippines
and
there have even been
cases
there
in
which accidental woundings between
members
of
feuding groups have been called
deliberate
by the
person
who
committed
the
wounding,
so
that
he
could claim
to be
carrying
out his
obligations
in the
feud.
Among
the Tiv
of
West
Africa,
the
concept
of
the
reasonable
man
came into play
in
deter-
mining
the
degree
of
behavior that constituted
an
offense.
For
example,
the Tiv
considered
it
reasonable
for a man to
beat
his
wife,
but
unrea-
sonable
and
thus illegal
for him to
beat
her to
the
point that
she
could
not
work.
It was
rea-
sonable
for a man to
want
to
sleep with
as
many
women
as
possible,
but
unreasonable
and
there-
fore
illegal
to
commit incest
in
doing
so. It is
reasonable
(though wrong)
to
steal
from
people
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