On Underlying Similarities in Legal Procedure in Different Cultures

There are indeed underlying similarities in legal procedure in different cultures, including cultures that have had no contact with each other. This is not surprising, since humanity's fundamental genetic similarity has given rise to universal human impulses, such as reciprocity and revenge. The aim of law is to channel and restrain these impulses in order to advance the interests of society. Law enables greater social harmony than would the mere interplay of moral instincts, because law systematically subordinates the interests of individuals to groups that are larger than those that individuals would naturally care about. Imagine how fractured Melanesian society would have been if people had free rein to value the interests of others in proportion to their kinship. Or consider the fact that primate societies never expand much beyond the bounds of readily discernible relatedness. These examples illustrate that law – a rational, collective instrument of social organization – stands in contrast to moral instincts – which are intuitive and genetically driven – although it stems from them. (For reasons I need not get into, natural selection has almost always, if not always, acted on individuals, not groups, and therefore has produced instincts that favor one's genes, not one's society. Hence the cross-cultural incidence of ineradicable familial bonds and kin-preferencing altruism.)

Common human impulses have given societies common problems in need of legal solutions, which have themselves presented common challenges. One of these is how to ensure respect for the law. In what follows, I will discuss some of the similar ways in which the Azande and the Melanesians addressed this difficulty. To begin with, consider the use of ritual and myth to justify the law to those on whom it is imposed, thereby encouraging them to obey it for its own sake. Bronislaw Malinowski distinguishes law from other social obligations in that it is considered qualitatively more binding. He writes, "The rules of law stand out from the rest in that they are felt and regarded as the obligations of one person and the rightful claims of another." Of course, one of the reasons why this is so is that the law is backed by force, but not just any force will do if the law is to be both feared and loved. This is important because it is obviously not in a society's interests for people generally to obey the law out of fear alone. If people don’t also "love" the law – if they don't perceive its coercion as legitimate and its requirements as consistent with those of morality – then more "fear" is necessary to ensure a given level of social order. Needless to say, this is costly, risky, and oppressive. Accordingly, the Melanesians and the Azande, like perhaps all peoples, used ritual and myth to ensure that justice was done and seen to be done. As Oscar Chase observes, these practices both arose from, and reinforced, traditional cultural commitments. In the case of the benge oracle, the ritual itself was the means of dispensing justice, and acceptance of its "verdict" came naturally to the Azande. Thus the oracle was an ideal decision-making procedure for Zande law to systematize and formalize. This is not to suggest that the Azande first developed the oracle and then consciously decided to make it the cornerstone of their legal system; the process, like the development of the common law, was surely an organic one. The point is that the oracle engendered respect for the law because the Azande had mythological faith in it, and they augmented and entrenched its power through rules governing who could use it (men only), when it should be used (to resolve important, speculative questions), and what to do when one disagreed with it (it was never deemed wrong, only corrupted or misused). Regarding the Melanesians, Malinowski explains how, by requiring a certain "semi-commercial transaction" to be performed in the context of a public ceremony, they effectively guaranteed that the parties adhered to cultural values. Such a law seems easily justified as ensuring, by the light of public scrutiny, that people do what they know to be right; it does not, or at least does not appear to, make any substantive ethical demands of its own. In sum, as Chase puts it, "Social construction works best when the effect is unstated and seems part of the natural order of things." Ritual and myth serve these ends.

Another way in which these societies promoted respect for the law, as well as improved its functionality, was by building discretion into the legal process. Malinkowski notes that Melanesian legal rules were "essentially elastic and adjustable, leaving a considerable latitude within which their fulfilment [sic] is regarded as satisfactory." Similarly, Chase describes the Zande "appeals process," which culminated in the "Supreme Oracle" of the king. Naturally, these discretionary procedures enabled the legal systems of these societies to reach more reasonable, and therefore more acceptable, results; after all, the human capacity for rationalization is not quite boundless. There are clear benefits to having discretion within a legal system, primarily that it can be regulated moreso than the extralegal alternatives that would inevitably arise in response to excessive legal rigidity. However, it is arguably beneficial, and at least understandable, for discretion not to be too aboveboard. Perhaps some proponents of the American regime of plea bargaining, responsible for some 98% of all criminal convictions, would take such a position; they may claim that given the practical necessity of extracting guilty pleas, it's better for the average person not to be aware of their incidence and lose faith in the justice system. Analogously, neither the Azande nor the Melanesians fully acknowledged the disparity between law as practiced and law as professed. Through epicycles of rationalization, the Azande sustained their belief in the inherent infallibility of the benge oracle, and the Melanesians maintained that obligatory vendettas were the rule despite being carried out only under exceptional circumstances, in lieu of the more common practice of accepting financial compensation. These illusions, however incomplete, surely induced greater reverence for the law and more aversion to its transgression. Interestingly, Malinowski claims that despite its plasticity, Melanesian law was "systematically circumvented by well-established methods" (emphasis added), namely magical alternatives to the legal process. He does not clearly distinguish these magical alternatives from magical infringements. I want to briefly raise the suggestion that at least some of these alternatives should be regarded as instances of discretion within the Melanesian legal system. After all, both magic and law rested on tradition and procedure, and they do not seem to have been sharply differentiated in the Melanesian mind. There is a meaningful difference between "a system of magic consisting of spells and rites..., which when correctly carried out, is completely efficient in undoing the bad results of clan incest" and "a system of magic to estrange the affections of a woman from her husband and to induce her to commit adultery." Admittedly, both systems encouraged legal violations, but only the former can properly be characterized as remedial, akin to the legally sanctioned demand by a Melanesian clan for money in lieu of blood.