Explain briefly any three characteristics
of primitive law.
Answers
Primitive law is based entirely upon procedure, and it is intensely formal. Its very weakness makes it formal. Many of the legal ideas which we regard as rational, logical and inevitable, seem unknown in early jurisprudence. At primitive law, rights are not based on an orderly and logical system of legal principles.
Answer:
Hoebel decides that it is difficult to define the law by pulling from Hohfeld, and explaining that in the use of the law, we blend and confuse things that are legal and non-legal. I addition, “a definition is merely an expression of the acknowledged attributes of a phenomenon or concept,” which makes law impossible to define. Hoebel argues that the law does not exist, just like the Holy Grail, so any attempts to define law would be futile, just as each quest. It is impossible to truly define the law because there is no one guiding principle behind all human actions, so actions that are intolerable in one society may not be able to be accurately transferred to another society. In “primitive law,” the traditional examples are not viewed with the same reverence as Western law, meaning that indigenous populations laws are not as “credible” when compared to the law from colonizing powers during colonialism. When reviewing Miner and Malinowski, it is possible to view these as two different scenarios. In Miner and the Nacirema, many of the practices described are not legal in practice because they aren’t rooted in what we traditionally view as law, but as ritual. Miner frequently uses the word ceremony and ritual, and the difference is that law is known by all people, not ritualised and relegated to secrecy as seen with the Nacirema. For example, the lati pso ceremonies and practices with the witch-doctor, are not accessible to everyone, which makes it less of a legal issue and more of cultural practice. The practice as a social norm was not legal with the Nacirema in accordance to Hoebel’s definition, outside of the magical practitioners, who were the only ones who could practice, because it was not something all could participate in or were forced and coerced through force to do so. In Malinowski’s example of the Trobriand society, the example of the canoe is a simple example of legal because there is a clear delineation between the owner and the crew, and even down to the transfer of ownership of the canoe. The use of the canoe and the status of each member is dedicated and enforceable, which would apply under Hoebel’s definition of a legal social norm. While there are moral and economic obligations in place, the Trobriands were bound together through their social norms and reciprocity or repayment were reactions when social expectations were not met, leading to legal status.
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