Can All Societies Have Laws - Essay Example

ANTHROPOLOGICAL ARGUMENTS By: + Society and Law Sally F. Moore onceclaimed that, “No society is without a law” and that “no society is outside the purview of legal anthropologists1” One of the highly contentious topics is anthropology where differing opinions are normally expressed regarding humans especially concerning the law. In the very early years, the topic of anthropology was debated but one view that seemed to be widely accepted asserted that cultures normally evolve progressively and uniformly. Many of the anthropology scholars borrowed a leaf Charles Darwin’s theory of evolution for humans, and stated that similarly, cultures evolved. However, as new scholars kept on emerging, these theories were challenged. Today, some argue that contrary to the earlier assertions that all societies conform to each other at some point, not all cultures have law, thus negating the issue of conformity. In light of these debates, this paper seeks to analyse these anthropological arguments in a bid to establish if all societies have laws. Consequently, diverse groups holding different cultural behaviours forming every society, laws are inevitable. One of the reasons the topic of cultural law comes up is because of yet another controversial debate of cultural relativism. In anthropology, cultural relativism asserts that each society holds its own practices and values2. Many, if not all, of these values and practices seldom compare to other societies thus making each society unique. In a bid to ensure that the observation of these values is retained, societies tend to have laws that hold them together. Since cultures are found universally, it therefore, confirms that all societies have a law. Furthermore, cultural relativism tends to be concerned with showing respect to varied cultural laws without setting values. That is to say, one culture could be engaged in a practice that another considers bad yet the latter cannot express its disapproval. It is because of cultural relativism that different societies are able to have own law3. When not interfered with, these societies tend to form a unique setting in the society that consequently sets each other apart. Clearly, with cultures evolving from various stages, it is inevitable to have these laws. Interestingly, other scholars argue that despite the evident variance of social practices by different cultures, all tend to have a particular commonality. This group of individuals’ contest that just like there is a variance in civilization, cultures, too, take various stages4. Sachs echoes the sentiments5. He claims that even though cultures may follow different routes and diverse periods, there tends to have a common ending. Worth noting here is that this group does not argue that cultures do not have a law. Rather the argument is that societies have a law but takes various forms before corresponding to others. Notwithstanding these assertions, others are of the opinion that some cultural practices ought to be discontinued as they extreme. Although cultural relativism seeks to ensure that each side retains its practices without interference from another, some could not be accepted in the modern days6. For instance, some societies have no problem with eating domestic animals including cats and dogs, a culture that contradicts a majority of environmentalists. A case in point, some states like Pennsylvania allows the eating of cats and dogs where the societies involved argue that the consumption helps in building immunity to disease7. While a case like this could be argued as harmless to some, it goes against other cultures. While still at this, the study of anthropology cannot be complete without a mention of one Montesquieu whose perceptions and assertions concerning the pastoralists elicited a debate. Thomas Montesquieu’s argument concerning pastoralists and shift-cultivators offered a new platform for further debate8. The argument originates from the fact that these societies are not centralised. Because of this lacking in central coordination, some argue that such communities do not have a law. Instead, Montesquieu argued that these have what is called mores, and that code of conduct is only practiced when issues to with land emerge. For that reason, these communities cohesion is based more on customs than laws. As is the case with anthropologists, some accepted the assertions by Montesquieu while others vehemently argued against them. This kind of reasoning by Montesquieu was erroneous in the sense that it portrayed the societies without laws as backward and morally inferior. Further, arguing that the societies relied solely on the customs in their decision making especially when it entails disputes would be inaccurate because decisions are normally made within some laws. In short, the fact that these communities do have some codes of conduct implies that laws are in place, and thus cannot be judged otherwise9. Conversely, others felt that Montesquieu’s conclusion was accurate since some communities especially the ones mentioned by Montesquieu exhibited such behaviours. Instead of having laws that are applied on regular basis, these communities employ cultural practices more than laws. Further, the application of these codes is not done in a way to coerce others into obliging, but rather it is widely accepted among the members of the societies. Because of having these attributes of cultures, this cannot then be termed as a law but a custom10. Perhaps one of the reasons the debate of law and societies concerning anthropology keeps heating up is because of the definition. The efforts have been made to have a definition of law in order to have uniformity in all societies. This step has been necessitated by the fact that some argue on the law as being universal in all societies11. Conversely, others hold the view that customs cannot be equated to laws thus a distinction exists. This distinction causes all this debate because to some, customs cannot be termed as laws. On the other hand, laws, irrespective of they are arranged or frequency of application remain laws12. In addition, there is this notion that some of the cultural practices do not constitute a law because they lack the very essential attributes of a law. A law ought to have a sense of authority where the warring parties in a particular society obey its demands. Additionally, both parties involved have to view the law as the final irrespective of whether one’s needs were addressed. Then, each has to accept the law as the source of the solution to whatever problem parties in a particular culture may be having13. Therefore, when and if a society lacks in having a clear system fitting these attributes, it becomes somewhat hard to identify its law. However, the above statements were highly debated and termed as having shallow information when it comes to systems of law in a society. In the modern anthropology, law exists in two forms: Self-help and Court systems. In the latter, they exist without a centralised system that is tasked with settling disputes. However, this does not negate that these are laws that are strictly adhered to by the concerned societies. Self-help system, also termed as ad hoc take two forms including Familial and Mediator. In the case of Familial, decisions and actions are taken either by families’ senior members of the family’s involved or senior relatives. The mediator process engages a third party who remains neutral in a bid to see justice is14. Clearly, even if a society has no clear legislation, this case proves that despite having unclear laws, societies do have laws. Such a court systems would be applicable in more civilised societies15. Normally, these systems ensure that justice is done for the wronged party but has to be in line with the larger society’s constitution. That is to say, when a society decides court systems will be used as the centres for justice seeking, a constitution has to be in place. When a society chooses this as the method resolving disputes, some cultural practices may not be considered when it comes making a decision. The West has been seen as one that embraces the court system more than the self-help one where individuals file their grievances in a court of law. Besides being used is settling disputes, the courts in the West are also used in managing conflict. Unlike in other parts of the world, even some of the smallest of offenses are resolved in courts unless parties agree between themselves. In such cases, individuals may seek legal redress depending on other factors, which may be influenced by either upbringing or religion16. This scenario is somewhat different in some other parts of the world where whether it is dispute of conflict management, self-help systems are used. For instance, many pastoralist communities in Africa seldom utilises the court systems in their dispute resolution despite its existence17. Instead, self-help system is rampant for a couple of reasons one of which has to do with time. Some consider it tedious to engage a legal battle given the length of time it would take to resolve. Others find it unnecessary to follow such a process when the issue being disputed has to do with natural resources. Again, some avoid it because it would be seen to jeopardise the relationship between members of the community. It is of great importance to note that societies are not limited to communities, but could also be a congregation. Earlier it was noted that Moore claimed all societies have a law whether knowingly or otherwise. Law is not limited to a community supports these claims. As long as people have, a common interest law simply exists, including workplaces18. Talal Asad was one of the fiercest anthropology scholars who exhibited peculiar style of researching about the topic of the law. Unlike the other anthropologists who were fervently critical of the religion. Many admired Assad’s tenacious-yet-gentle approach19. Due to the advancement of civilisation, a lot has changed about anthropology, and some scholars argue drastic measures ought to be taken. It is imperative that anthropologists rediscover their unique narrative art, and plunge further into modern issues. Another historic figure whose opinions precisely fit those of Eriksen was Max Weber who stated that modernism disregards anthropology yet the time the latter ought to excel20. While it is indisputable civilisation will continue to evolve, the issue of laws in a society will never head into the oblivion. This is because a society has to have ways on how the ever-unavoidable issue of conflict will be resolved. Even though there could be a change in the systems, it is factual to state that law will always be within. To sum it up, law and society seem irreplaceable as evidenced by the facts provided herein. Even though this is a topic often debated as per individual understanding, the ethnographic evidence involving the West and the African societies prove that law is within every society. Whereas some communities embrace mediation, arbitration and conciliation, this paper has revealed that some codes of conduct are applied. The pastoralist communities in Africa and other regions embrace Self-help, which in itself has some rules. Here, either relatives and family members or a combination of a third party handles the disputes. Conversely, much of the civilised regions, like the West, prefer the court system. Regardless, of the system chosen, this proves Sally Moore’s words that no society is devoid of a law however hidden it may seem. Bibliography Andelson, J. and Lockyer, J. (2006). Anthropology of Intentional Communities and Communal Studies. Anthropology News, 47(5), pp.30-30. Bailey, G. and Peoples, J. (2011). Essentials of Cultural Anthropology. 7th ed. US: Cengage Learning Chokr, N. (2007). Who is (not) afraid of (cultural) relativism?. Tracés, (12). Cownie, F., Bradney, A. and Burton, M. (2013). English Legal System in Context 6e. 6th ed. UK: Oxford university press. Cordy, J. (2010). Eating our own dog food. ACM SIGPLAN Notices, 45(2), pp.3-4. Eriksen, T. (2006). Engaging anthropology. 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