Though customary law systems are very hard to generalize about, we may observe that in many of

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Question:

Though customary law systems are very hard to generalize about, we may observe that in many of them, the spiritual world played an important role in enforcement of the law. What was the role of the spirit world or spiritual/religious authorities in many of these legal traditions?

2. During the period of high colonialism in much of Africa, Asia, and the Caribbean, colonial officials endeavored to write down, or codify, preexisting customary laws. Why did colonial officials do this? What was the consequence?

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In this segment, we'll talk about customary, indigenous, and traditional criminal justice in places like native America, sub-Saharan Africa, Southeast Asia, and the South Pacific. To what extent are these traditions still relevant today? How do modern legal systems attempt to incorporate customary or traditional elements into their modern structures? South Africa is actually a good example of a country that's struggled with how to fit African customary law into its constitutional framework. How for instance, can you ensure that Zulu law is applied or Xhosa law or Sutu law or Tswana law in a constitution that guarantees equality-- especially where the customary tradition tends to privilege, perhaps, older men over women, children and unmarried men, like many customary criminal justice systems did? One thing English common law, Roman civil law, and Islamic law all have in common is that they are written. They are based on written legal sources. Therefore, they've developed a specialized legal class that is trained in reading and interpreting these written sources. When we talk about customary law, by contrast-- or indigenous law-- we're talking about a body of law that is historically unwritten and passed by oral traditions. Widely known among the community, sometimes there was a specialized class of persons with expertise in this law, perhaps, a village elder or something like that. It's impossible to generalize about customary law. Because the traditions vary so greatly. One major difference in customary legal systems is between a society that was highly centralized with a strong autocratic even perhaps semi-divine ruler versus societies that were headless or that were purely egalitarian that had no internal social hierarchy. Customary law in those rigid traditions looks very different. Non-Western law and religious law continue to apply in many modern legal systems, especially in the areas that concern, for instance, family law, probate law, child custody, inheritance, divorce, paternity. Very rarely does it apply in the criminal realm. In almost all countries worldwide, criminal law-- with a handful of exceptions in the Islamic world-- criminal law generally applies European-based legal principles. That isn't true for family law, which varies much more widely around the world as some countries have gay marriage. Some have polygamy. There's all sorts of variation in family law. Family law is a lot more culturally contingent. It's a lot more diverse in its legal concepts globally than something like criminal law. Customary law is most common in former British colonies. I've already mentioned that the British tended to do colonialism on the cheap. Their empire was too big to try to impose uniform laws on all their colonies.

That's different than French colonies or Portuguese colonies where the metropolitan power tended to apply a common legal framework on their colonies. So customary legal traditions generally were incorporated right into the British colonial state-- that village elders or traditional rulers were just paid by the colonial state and made to be colonial officials. However, even in countries that had modern legal systems, even in the criminal law sphere, there are still elements of customary law that survive. For instance, compensation to victims by the perpetrators-- that's recognized in some modern legal systems in places like sub-Saharan Africa. We'll also mention that many premodern societies didn't make a clear distinction between law and morality-- that it was impossible to separate the legal realm from the spiritual realm. There was a spirit world that was known. you had to follow the law in order to comply with what the spirit world wanted. And violating the law upset or offended the spirit world. That type of world view was very common. Therefore, we can't assume that there's any distinction between law and religion in that sense. It's easy to overgeneralize about customary law. We're discussing an enormous mass of extremely varied practices. From society to society, these could be extremely variable. Many communities, for instance, favored harmony or equilibrium. And they preferred restitution or restorative justice to retribution. But not all of them did. we can't assume that they did. Nonetheless, for this category to have any analytical usefulness, perhaps, a few general observations about broad practice is helpful. In general, outside of Europe, there was a historical shortage of labor and a surplus of land. The opposite was true in Europe. There was a shortage of land and a surplus of labor. That's why Europe developed strong centralized kingdoms that fought bitter border wars. And then sent their surplus of labor to the colonies. Rather, in traditional societies in native America or sub-Saharan Africa, for instance, labor was valuable.

Human beings were valuable. If you murdered someone, then the victim's family has suffered an economic loss. They no longer have that assistance, for instance, with agriculture or raising cattle or something like that-- some economically valuable enterprise. Because crime caused an economic loss to the victim's family, payment of compensation to that family was very common in many societies. If I murdered someone of your clan, I was responsible for paying, perhaps, a certain sum of cattle or something like that in order to compensate you for your economic loss. We find compensatory systems in many societies even in premodern European societies. This isn't that different than the wergild in Anglo-Saxon law for instance. And these traditions still exist in many of the world's societies. Crime could cost spiritual harm to the perpetrator. If I murder someone of your clan, that community's out of harmony, that the spirit world could visit misfortune-- perhaps, in a drought or a famine-- and that we have to restore harmony through some sort of ritual-- maybe a sacrifice, maybe payment compensation, maybe a transfer of a person from one society to the other to help with resolving that economic loss. In a small society where people are known to one another, punishments such as shame, ostracism, and even banishment, the harshest-- social death, in other words-- these punishments were very powerful-- much more powerful than our own society where people are anonymous. There was no state as we define state. Rather the state is a product of colonialism. Policing was typically done by the community at large. Only in the most centralized kingdoms would there be a separate class of law enforcement officials who would inflict the king's justice. Only in the very, most centralized societies would there be a system of criminal law where the sovereign would punish people for offending the community's laws. Typically, something like policing or criminal punishments were carried out by the community at large. Capital punishment was highly culturally contingent. Many societies didn't use capital punishment. Or if they did, it was only in extraordinary cases. They preferred compensation to the victim, for instance, or a system of shame and ostracism or banishment. But, certainly, there were many societies that did use capital punishment. And they used it fairly frequently even for things like spiritual offenses like witchcraft or sorcery. So we can't generalize about something like capital punishment. We could say, however, that imprisonment was really quite unusual up until European colonialism. Imprisonment, even more than something like capital punishment, was peculiarly a product of colonial rule. Now, today, of course, almost all of the world's societies use imprisonment as the main form of criminal punishment-- in fact, all of them really. But most societies didn't really have a system of imprisonment prior to the modern era. Are these methods of justice still relevant today? That's the question to which we'll now turn. The Melanesian societies of Papua New Guinea are an example of stateless societies. These are societies without any political centralization or political hierarchy. They're egalitarian. Legitimacy is widely dispersed in adult males and elders, not in a single ruler.

And so it's representative of egalitarian traditions in an anthropological sense. In these societies, if you murdered someone of another clan, for instance, the spirit world would be out of harmony. You would have to restore that harmony through, perhaps, a retaliatory killing, through ostracism, or banishment, through payment of compensation and with the fear that there would be spiritual harm that could befall the whole community unless that harmony were restored. Therefore, there was community enforcement of these social norms. The British believed that these quote, "primitive" practices would be replaced with the spread of civilization. In many societies, pre-colonial societies, law or these oral traditions which formed the body of law were reduced to writing by colonial officials issued as restatements or codes which satisfied a practical need for certainty, but also led to harmonization of diverse customs and froze certain customs in time. Societies based on oral traditions were able to evolve very rapidly to changing social conditions. And if you wrote down that law and you froze it in time, you removed that inherent flexibility that allowed it to evolve. Nonetheless, be cautious about over-romanticizing these forms of criminal justice. By and large, they tend to privilege older married men over, say, women, children young men and outsiders. They tended to privilege members of the community over members of other communities. And, therefore, they violate our basic notions of equality. There also could be an authenticity problem. Much of what we know about customary law or customary legal traditions were filtered through a colonial lens. These practices were written down by colonial officials and anthropologists working-- or ethnologists working for the colonial state. It's impossible to know for sure what the colonial practice actually was-- the pre-colonial practice actually was before European observers came on the scene. Are these traditional methods of criminal justice still relevant today?

One partial answer might come from the restorative justice movement, which aims to change the focus of a criminal proceeding from a perpetrator to a victim, a family or community. The crime creates real harm for many people, perhaps, the greatest harm of their lives. And how can we reduce that harm and make them whole again? That's the project of the restorative justice movement, which challenges the assumption that punishing an offender is the best way to restore justice. Restorative approaches to criminal justice allow both victims and perpetrators to be involved in the justice process and sometimes involving the entire community to be involved so that they all have ownership of the outcome through apologies, constructive dialogues, alternative punishments. We'll look at different models of this. We will call these participatory proceedings-- to be distinguished from adversarial proceedings or inquisitorial proceedings. Rather, the hallmark of a participatory proceeding is that the participation alone is a social good that just by bringing people together, you've helped the community and the victim and the offender move on. Traditionally, of course, Western law has no role for the victims at all, especially in English common law. French style civil law is a little bit better. A victim can bring a civil suit along with the prosecutor's criminal suit. But that isn't even necessarily true in common law. But there has been, even in our own traditions, increasing emphasis on the role of the victim through, for instance, victim impact statements, victim offender mediation, other mechanisms. Transitional justice advocates working in post-conflict societies have embraced these models as ways forward for societies that were previously torn by conflict. Later in this course, we'll talk about the International Criminal Court, which allows victim's representatives to participate in the criminal proceeding. So far, it's the only international criminal tribunal like this. In all trials at the International Criminal Court, there'll be a defendant and a defense. There'll be a prosecution and then there'll be the victim's representative. These are examples of participatory proceedings.

Perhaps, the most famous form of a participatory criminal justice proceeding is a truth and reconciliation commission, which grants amnesty to perpetrators or, perhaps, lighter sentences in exchange for testimony, apology, and truth telling. We just want to know what the truth is, what happened to the victims. And we're less concerned about punishing the perpetrator. This may be useful for very large scale atrocities, especially where you can't punish everyone because there's just too many perpetrators-- or situations where the formal judicial system is insufficient to resolve the dispute. Perhaps, because we're dealing with a post-colonial country and the legal system is really a colonial imposition. It operates in a different language. And it's closed. You need to hire lawyers. And most people can't afford them-- these kinds of things. Reparations are another form of restorative justice where perpetrators must pay damages to victims either individual victims or communities perhaps. The International Criminal Court has a reparations mechanism. And there have been other experiments using reparations for human rights abuses. At a higher level, many other societies have some sort of mechanism where a perpetrator must pay compensation to the victim, including in our own societies through something like tort law where if I injure you, I am responsible to pay damages to you in order to make you whole again. Many, many societies have a form of reparations like that. In fact, using compensation to resolve disputes like injuries or murders, for instance, is very, very old. It dates to very early human civilization. Whereas is criminal law, as we know it today only dates back a few hundred years. This is a very, very old-- the payment of compensation is a very, very old method of resolving disputes and one used by virtually every society in some form. One example of a customary law process that was repurposed in the modern world are the Gacaca trials in Rwanda which followed the genocide. Because you're over 100,000 perpetrators of Rwandan genocide, it would have taken Rwandan courts over a century to prosecute them all.

The Gacaca trials were, in part, a way of giving the community ownership over the proceedings and making them more legitimate, but also partially an effort at having a simplified criminal procedure that could be a little bit more efficient at processing such a large number of cases, especially for lower level perpetrators. In a Gacaca proceeding, the defendant makes a statement, perhaps, expresses remorse, perhaps makes a denial. Then the members of the community and victims can stand and give their views. When all the views have been expressed in the community, the judges who have been listening to the assembly can pronounce and give a shorter sentence or an alternative prison in exchange for the truth. There is, perhaps, arguably something a little bit inauthentic about this-- that we are using a traditional criminal justice dispute method for a purpose that it wasn't really designed for. We're taking something old and using it in a very modern way. But to the extent that it is seen as legitimate, it is an important tool of the restorative justice toolbox. Is this proceeding adversarial, inquisitorial, or participatory? If you said participatory, you would be right given the role played by the community and by the victims in the proceeding. Besides the Gacaca trials in Rwanda, there have been other examples of repurposing pre-colonial methods of criminal justice in the modern era to address and resolve human rights abuses. The Mato oput ritual in northern Uganda is an example. This was a reconciliation ritual that was used in pre-colonial times in which victims, perpetrators, and community members could gather together, share opinions, express remorse, pay some symbolic compensation and then drink a bitter herb, the herb of the oput tree. This ritual was repurposed in northern Uganda for abuses following conflicts between the Ugandan military and the Lord's Resistance Army under Joseph Kony which particularly harmed the Acholi people who lived in northern Uganda. Now, there are problems with this type of ritual that outsiders or non-Acholi people may not see it as legitimate. Because the ritual isn't theirs.

In addition, there's also converts to Christianity or Islam, perhaps, who may view these kinds of rituals as quaint or anachronistic. Nahe biti in East Timor is another example. Participants would sit on a woven mat, a biti. And then community members could give their opinions and provide testimony before the victims and the perpetrators. These rituals were used to reintegrate refugees from Indonesia once East Timor became independent of Indonesia in 1999. But, again, in both of these cases, the rituals are not necessarily-- and same with Gacaca-- the rituals are not necessarily being used in the way that they were used in the pre-colonial period. Rather, they've been repurposed for a modern situation. They're not necessarily traditional, pre-colonial proceedings as they existed. They are something that's quite modern that's dressed up to look old. But it could very well have legitimacy among people in those communities. And therefore they're important. Are these adversarial, inquisitorial, or participatory? Well, given the role of the community in the proceeding and the way in which victims are included, we might call them participatory proceedings.