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The Reasonable Man Revisited: Some Problems in the Anthropology of Law

Published online by Cambridge University Press:  01 July 2024

A. L. Epstein
A. L. Epstein*
Affiliation:
University of Sussex
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Extract

“The reasonable man is recognized as the central figure in all developed systems of law, but his presence in simpler legal systems has not been noticed.” With this two-pronged assertion Max Gluckman (1955: 83) introduces a major theme of his analysis of the judicial process in Barotseland. The book in which he attempts this task has been widely and deservedly acclaimed, not only as a landmark in the study of primitive law, but also as an important contribution in the field of comparative jurisprudence. It has also been a work fruitful of controversy; in this paper I do not enter into the wider aspects of these controversies, but confine myself to discussion of the concept of the reasonable man. Gluckman's use of this idea is central to his description and analysis of the Lozi material, but it has had a rather mixed reception among anthropologists and lawyers alike. Thus Nadel (1956: 167), for example, while expressing certain reservations, approved on the whole and found the emphasis on reasonableness seemingly consistent with certain typical features of Lozi jurisdiction, but doubted whether this would help much in understanding practice in, say, Moslem courts. By contrast, Hoebel (1961: 437), in an otherwise favourable review, found himself unable to share Gluckman's hopes that the concept would find wide methodological use because “as an analytic concept the reasonable man is not an effective tool for the job.” Among lawyers and jurists the response was equally varied.

Type
Research Article
Information
Law & Society Review , Volume 7 , Issue 4 , Summer 1973 , pp. 643 - 666
Copyright
Copyright © The Law and Society Association, 1973.

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Footnotes

AUTHOR'S NOTE: I am indebted to Professor Geoff Sawer, Faculty of Law, Research School of Social Sciences, Australian National University for comments on an earlier draft of this paper, in particular his helpful remarks on the question of legal standards. He is not of course responsible for the blemishes that remain in the paper as it now stands. I have also benefited from comments by Professor Andrew and Dr. Marilyn Strathern and from Professor Max Gluckman. If I have treated some of Gluckman's formulations rather critically here, I hope that it will at least be plain that this treatment is in itself a tribute to the enormous stimulus I have gained from his ideas.

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