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Limitations of the Case-Method in the Study of Tribal Law

Published online by Cambridge University Press:  01 July 2024

Max Gluckman
Max Gluckman*
Affiliation:
University of Manchester and Center for Advanced Study in the Behavioral Sciences, Stanford
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Extract

E. Adamson Hoebel is justly honoured for the contribution he made to the study of tribal law by insisting on the recording and study of what he, with the late Karl N. Llewellyn, called “trouble-cases” in their innovative book, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (1941). The fruitfulness of this method was demonstrated also by Hoebel in another book, published at virtually the same time, on The Political Organization and Law-Ways of the Comanche Indians (1940), and argued further in his The Law of Primitive Man (1954). We may see the form of these studies as emerging partially from the method of case-law in Anglo-American jurisprudence, and here the influence of Llewellyn was probably important. But concentration on specific “cases”, “situations”, “incidents”, et alia, was also part of a general tendency in social science from the 1920's onwards: the increasing focus of analysis on untangling the structure of specific situations against the general social background was marked in political science and economics (see e.g., Devons, 1960, 1970) and sociology (see e.g., Gouldner, 1954). I have discussed the general development in social anthropology (Gluckman, 1959, 1965b, 1967).

Type
Research Article
Information
Law & Society Review , Volume 7 , Issue 4 , Summer 1973 , pp. 611 - 641
Copyright
Copyright © The Law and Society Association, 1973.

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Footnotes

AUTHOR'S NOTE: I am grateful to the Center for Advanced Study in the Behavioral Sciences, Stanford, for a Fellowship during the tenure of which this essay was written, and to the University of Manchester for leave to take up that Fellowship, and to the Nuffield Foundation for a Special Fellowship enabling me to concentrate on research. I also thank Professor R. Abel who sent me a most helpful letter of comment which enabled me to clarify certain points.

References

ABEL, Richard L. (1969) “Customary Laws of Wrongs in Kenya: An Essay in Research Method,” 17 The American Journal of Comparative Law 573. Reprinted as Yale Law School, Studies in Law and Modernization, No. 2.Google Scholar
ALLOTT, Anthony N., Arnold L., EPSTEIN and Max, GLUCKMAN (1969) “Introduction” in Max, GLUCKMAN (ed.) Ideas and Procedures in African Customary Law. London: Oxford University Press for the International African Institute.Google Scholar
BARTH, Fredrik (1966) Models of Social Organization. Occasional Paper of the Royal Anthropological Institute of Great Britain and Ireland, No. 23.Google Scholar
BERNDT, Ronald (1962) Excess and Restraint: Social Control among a New Guinea Mountain People. Chicago: University of Chicago Press.Google Scholar
BLACK, Charles L. (1969) Structure and Relationship in Constitutional Law. Structure and Relationship in Constitutional Law: Louisana State University Press.Google Scholar
BOHANNAN, Paul J. (1957) Justice and Judgment among the Tiv. London: Oxford University Press for the International African Institute.Google Scholar
DESHEN, Shlomo (1970) Immigrant Voters in Israel: Parties and Congregations in a Local Election. Immigrant Voters in Israel: Parties and Congregations in a Local Election: Manchester University Press.Google Scholar
DEVONS, Ely (1958) “Government on the Inner Circle.” The Listener. 27 March 1958.CrossRefGoogle Scholar
DEVONS, Ely (1960) “The Role of the Myth in Politics,” The Listener. 21 June 1960.Google Scholar
DEVONS, Ely (1970) Essays in Economics and Administration. Essays in Economics and Administration: Manchester University Press.Google Scholar
DOUGLAS, Mary (ed.) (1970) Witchcraft Confessions and Accusations. A. S. A. Monograph 9. London: Tavistock.Google Scholar
DUNDAS, Charles (1915) “The Organization and Laws of Some Bantu Tribes in East Africa,” 45 Journal of the Royal Anthropological Institute of Great Britain and Ireland 234.Google Scholar
DUNDAS, Charles (1924) (1968, new edition) Kilimanjaro and its People. London: Frank Cass.Google Scholar
DWORKIN, Ronald (1967) “Is Law a System of Rules?” 35 University of Chicago Law Review 14. Reprinted in Robert, SUMMERS (ed.) (1970) Essays in Legal Philosophy. Oxford: Basil Blackwell.Google Scholar
ELIAS, T. Oluwale (1959) The Nature of African Customary Law. The Nature of African Customary Law: Manchester University Press.Google Scholar
EPSTEIN, Arnold L. (1954) Juridical Techniques and the Judicial Process. Rhodes-Livingstone Paper No. 23.Google Scholar
EPSTEIN, Arnold L. (1967) “The Case Method m the Field of Law” in Arnold, EPSTEIN (ed.) The Craft of Social Anthropology. London: Tavistock.Google Scholar
EPSTEIN, Arnold L. (ed.) The Craft of Social Anthropology. London: Tavistock.CrossRefGoogle Scholar
EVANS-PRITCHARD, Edward E. (1937) Witchcraft Oracles and Magic among the Azande. Witchcraft Oracles and Magic among the Azande: Clarendon.Google Scholar
EVANS-PRITCHARD, Edward E. (1940) The Nuer. Oxford: Clarendon.Google Scholar
FALLERS, Lloyd F. (1969) Law without Precedent. Chicago: University of Chicago Press.Google Scholar
FRANK, Jerome (1930) Law and the Modern Mind. New York: Howard McCann. (6th printing. London: Stevens, 1949).Google Scholar
GLUCKMAN, Max (1940) “Analysis of a Social Situation in Modern Zululand,” 14 Bantu Studies 1. Reprinted as (1958) Rhodes-Livingstone Paper No. 28.Google Scholar
GLUCKMAN, Max (1955) The Judicial Process Among the Barotse of Northern Rhodesia. The Judicial Process Among the Barotse of Northern Rhodesia: Manchester University Press for the Rhodes-Livingstone Institute. Second enlarged edition, 1967.Google Scholar
GLUCKMAN, Max (1961) “Ethnographic Data in British Social Anthropology,” N.S.9 The Sociological Review 1 (Transactions of the 3rd International Congress of Sociology, Stresa, 1959).CrossRefGoogle Scholar
GLUCKMAN, Max (1962) “African Jurisprudence: Presidential Address to Section N (Sociology) of the British Association for the Advancement of Science,” 18 Advancement of Science 439.Google Scholar
GLUCKMAN, Max (1965a) The Ideas in Barotse Jurisprudence: Storrs Lectures on Jurisprudence, Yale Law School, 1963. The Ideas in Barotse Jurisprudence: Storrs Lectures on Jurisprudence, Yale Law School, 1963: Manchester University Press for Institute of Social Research, Zambia, 1972): Manchester University Press for Institute of Social Research, Zambia, 1972).Google Scholar
GLUCKMAN, Max (1965b) Politics, Law and Ritual in Tribal Society. Politics, Law and Ritual in Tribal Society: Mentor Books.Google Scholar
GLUCKMAN, Max (1965c) “Reasonableness and Responsibility in the Law of Segmentary Societies” in Hilda, and Leo, KUPER (eds.) African Law: Adaptation and Development. Berkeley and Los Angeles: University of California Press.Google Scholar
GLUCKMAN, Max (1967) 2nd edition of 1955 (see above).Google Scholar
GLUCKMAN, Max (ed.) (1972) The Allocation of Responsibility. The Allocation of Responsibility: Manchester University Press.Google Scholar
GOULDNER, Alvin (1954) Wildcat Strike, Yellow Springs, Ohio: Antioch Press.Google Scholar
GULLIVER, Philip (1963) Social Control in an African Society: A Study of the Arusha, Agricultural Masai of Northern Tanganyika. Social Control in an African Society: A Study of the Arusha, Agricultural Masai of Northern Tanganyika: Routledge and Kegan Paul.Google Scholar
GULLIVER, Philip (1969a) “Introduction to Case Studies of Law in Non-Western Societies” in Laura, NADER (ed.) Law in Culture and Society. Chicago: Aldine.Google Scholar
GULLIVER, Philip (1969b) “Dispute Settlement Without Courts: The Ndendeuli of Southern Tanzania” in Laura, NADER (ed.) Law in Culture and Society. Chicago: Aldine.Google Scholar
GULLIVER, Philip (1971) Neighbours and Networks: The Idiom of Kinship in Social Action among the Ndendeuli of Tanzania. Neighbours and Networks: The Idiom of Kinship in Social Action among the Ndendeuli of Tanzania: University of California Press.CrossRefGoogle Scholar
HART, Herbert L. A. (1961) The Concept of Law. The Concept of Law: Clarendon.Google Scholar
HOEBEL, E. Adamson (1940) The Political Organization and Law-Ways of the Comanche Indians. The Political Organization and Law-Ways of the Comanche Indians: Contribution from the Santa Fe Laboratory of Anthropology, 4.Google Scholar
HOEBEL, E. Adamson (1954) The Law of Primitive Man. Cambridge, Massachusetts: Harvard University Press.CrossRefGoogle Scholar
HOWELL, Philip (1954) A Manual of Nuer Law. London: Oxford University Press for the International African Institute.Google Scholar
LANGE, Kathleen (1967) Justice without Judges. Unpublished M.A. thesis, University of Manchester.Google Scholar
LEACH, Edmund (1954) The Political Systems of Highland Burma. London: Bell.Google Scholar
LLEWELLYN, Karl (1931) “Some Realism about Realism,” 44 Harvard Law Review 1222 (cited David LLOYD below).Google Scholar
LLEWELLYN, Karl (1940) “Using the New Jurisprudence,” 40 Columbia Law Review 58, reprinted in Karl LLEWELLYN (1962) Jurisprudence: Realism in Theory and Practice. Chicago: University of Chicago Press.Google Scholar
LLEWELLYN, Karl and HOEBEL, Adamson, E. (1941) The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence. The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence: University of Oklahoma Press.Google Scholar
LLOYD, Dennis (1956) Introduction to Jurisprudence with Selected Texts. London: Stevens.Google Scholar
JUNOD, Henry A. (1913) The Life of a South African Tribe. London: Macmillan.Google Scholar
MALINOWSKI, Bronislaw (1926) Crime and Custom in Savage Society. London: Kegan Paul, Trench and Trubner.Google Scholar
MALINOWSKI, Bronislaw (1934) “Introduction” to Ian HOGBIN. Law and Order in Polynesia. London: Christophers.Google Scholar
MEGGITT, Mervyn (1962) Desert People: A Study of the Walbiri Aborigines of Central Australia. London: Angus and Robertson.Google Scholar
MIDDLETON, John (1960) Lugbara Religion: Ritual and Authority among an East African People. London: Oxford University Press for the International African Institute.Google Scholar
MILSOM, S. F. C. (1969) Historical Foundations of the Common Law. London: Butterwerths.Google Scholar
MITCHELL, J. Clyde (1956) The Yao Village. The Yao Village: Manchester University Press for the Rhodes-Livingstone Institute.Google Scholar
MOORE, Sally (1969a) “Law and Anthropology” in Bernard, SIEGEL (ed.) Biennial Review of Anthropology. Stanford: Stanford University Press.Google Scholar
MOORE, Sally (1969b) “Politics, Procedures, and Norms in Changing Chagga Law” in 40 Africa 321.CrossRefGoogle Scholar
MOORE, Sally (1972) “Legal Liability and Evolutionary Interpretation: Some Aspects of Strict Liability, Self-help and Collective Responsibility” in Max, GLUCKMAN (ed.) The Allocation of Responsibility. Manchester. Manchester University Press.Google Scholar
MOORE, Sally (in press) “Ritual Concord and Fraternal Strife” in S., MOORE (ed.) Communal Ideologies and Management of Disputes.Google Scholar
PENWILL, D. J. (1951) Kamba Customary Law. London: Macmillan.Google Scholar
PERISTIANY, John L. (1954) “Pokot Sanctions and Structure,” 24 Africa 17.Google Scholar
POSPISIL, Leo (1958) Kapauka Papuans and Their Law. Yale University Publications in Anthropology, No. 54.Google Scholar
POSPISIL, Leo (1971) Anthropology of Law: A Comparative Theory. New York: Harper and Row.Google Scholar
RICHARDSON, Jane (1940) Law and Status among the Kiowa Indians. American Ethnological Society, Monograph I.Google Scholar
SCHAPERA, Isaac (1938) A Handbook of Tswana Law and Custom. London: Oxford University Press for the International African Institute. (2nd edition 1955).Google Scholar
SEAGLE, William (1941) The Quest for Law. New York: Knopf. (2nd edition entitled (1946) The History of Law. New York: Tudor).Google Scholar
STONE, Julius (1947) The Province and Function of Law. London: Stevens.Google Scholar
TURNER, Victor (1957) Schism and Continuity in an African Society: A Study of Ndembu Village Life. Schism and Continuity in an African Society: A Study of Ndembu Village Life: Manchester University Press for the Rhodes-Livingstone Institute.Google Scholar
VAN VELSEN, Jaap (1964) The Politics of Kinship: A Study in Manipulation among the Lakeside Tonya of Nyasaland. The Politics of Kinship: A Study in Manipulation among the Lakeside Tonya of Nyasaland: Manchester University Press for the Rhodes-Livingstone Institute.Google Scholar
VAN VELSEN, Jaap (1967) “The Analysis of Social Situations” in Arnold, EPSTEIN (ed.) The Craft of Social Anthropology. London: Tavistock.Google Scholar