FINAL Flashcards
(43 cards)
How does Malinowski define law?
Mutual obligations – need to receive and give
Eventually turns into a binding law; it binds me to you
Makes society stick together
Functionalist idea – law serves as a function
“There are among the many norms of conduct in savage societies certain rules regarded as compulsory obligations of one individual or group towards another individual or group” without which one society could function”
Different from economics
Economics is free, while law forces you to conform to society norms
Economics is the action of swapping but law is the force behind the swapping
Economics is based on self interest, generosity, if you don’t do it then other people might not
If you fail to give the fish when they give you vegetables → ostracized → might not trade again → others won’t trade → won’t get needs met → society fails
Do laws need to be enforced?
Self enforcing because they focus on what they need right nor or what they need down the line
What is the law of Trobriand Islanders?
Rule of reciprocity based off mutual obligations
What is unrevealed about the law when one is attuned to mundane activities of daily life?
Canoe picture: M would say
Each person has an obligation to one another because they are expecting they are expecting that the hard work will grant them the fish that they catch
The trades may not always look equal
Small fish for yams
People can work through and with the law to improve their own self-ambitions, ceremonial or religious purposes
Grocery Store
Economic transaction: exchange of money for goods
Social and normative law
Why doesn’t she just walk through the store and take the stuff?
Mutual obligation to the cashier
What is the relationship between law and the individual?
What happens to individuals in earlier studies of “custom” and “tradition”
Cuts out self-interest and just say im motivated to do something
People blindly follow these customs: never think individuals to deviate from the customs
M says that it is not blind communism
How does Malinowski view law as compelling as a particular person to do something?
How do individual ambition and self-interest interact with the law
Keeps society together
Self-interest is symbiotic with the law
What does taking a sufficiently long view of the chain of transactions reveal?
Mutual obligations are holding people in their places for transactions
Reciprocity might take some time; does not have to be immediate exchange
Partake in society because outcasted if you didn’t
Ex. transaction where one receives vegetables but does not give fish in return
Ex. transaction where magician has an obligation to do ceremonies but receives no respect from the village
It might look like communism because people are seen as smaller pieces in the larger scheme of things
Malinowki distinguishes between “rules of custom” and “rules of law.” Why is this important?
Rules of custom = rules of society that everyone follows
Each society may have different set of customs
Sometimes written down, sometimes not
Includes: rules of law, sports rules, relationship rules, rules of magical right, social rules
Ex. UCI customs = zot at graduation, try to break world record
Rules of law = obligations of one person and the rightful claims of another
Category of customs
Obeyed because there is a social machinery of mutual dependence and realized in the equivalent arrangement of reciprocal services
Is the Trobriand rule of reciprocity applicable to all societies? That is, is it universal?
People don’t always listen to the rule of reciprocity because it is not a perfect world
What constitutes the “Law stuff” of a society?
Purpose of law: get people to not follow their own ambitions but instead they should take tailor their actions to make society work better
Law cleans up social messes when they are made
Neutral customs – no consequences
Ex. not getting in trouble if you don’t say “thank you”
Litigious customs – consequences for not following the law
Ex. trading the fish and vegetables
Law stuff - the whole world related to legality
Law - the norms (or the rules)
What is the particular mode of investigation that Llewellyn and Hoebel recommend? Why?
IDEOLOGICAL METHOD
Norms that are felt as proper for controlling behavior
Might just ask people for their opinions
Problem: hard to observe, could be subjective, hard to say out loud
DESCRIPTIVE METHOD
Observational; how they go through their daily lives
Problem: might get confused; ASSume
TROUBLE-CASE METHOD
Looks into the conflict or dispute on particular scenarios
Problem: doing interviews with people who weren’t necessarily involved with the conflict which can be problem because of their motivation
BEST METHOD
Why is it so important to pay attention to the “personal experience cases”?
One case does not represent everyone
It gives a feel of the society and how they function by looking at the way they resolve disputes and looking at personal cases.
They give more details and information into people’s lives.
Easier to look at social norms and legal culture
What is Gluckman’s methodology for studying the judicial process of the Barotse?
Gluckman’s strategy for studying the judicial process of the bartose was to study the law through cases and disputes he observed legal issues and how they were resolved,he learned that the law is not easily applied, everything was based upon interpretation, study the case to decide everything.
normative rules based on culture, room for adjustment based on each case. logical, sense of morality and wanting to be a “ reasonable “ man.
Law was a process
Law was not set-in stone rules; based on their culture
Judges added moral interpretations into the law
Law and morality come together to reach a specific decision
Should not allow us to predict the result of a case because laws are general principles; somehow move from general principle to specific decision
Extended case method – focused on cases and disputes but his inquiries seemed to extend past that
Looked at how the legal processes expanded outmore (encompassed family life, social ties, hierarchy . . . .)
In what ways is the social structure of the Barotse taken into consideration during the judicial process?
Reconcile and Rehabilitate these relationships (harmonize society)
Blood-kin
Should be a strong blood-kin relationship over time
Cases could be small – might not even think they will win – but speaking their peace and having a third party to add in their input to resolve their dispute
ANY and ALL problems
Anything can be brought up in the case
Husband-wife
Considered long lasting but not as enduring as blood-kin
Evidence is more narrowed
Strangers
Specific case – everything is narrowed
Only pertaining evidence allowed
Resolution should be an application of law
Who is the reasonable man? Is he the same everywhere?
Role: judges compare how individuals act to the reasonable man
“Did this person act like a reasonable man would in that situation”
Why does Moore argue a historical perspective is needed?
MALINOWSKI – short timeline
How they were acting during that time
How law existed right there did impact the society
Society continued as is with the law (reproduced itself over and over again)
MOORE – Using a long timeline shows:
How law changes over time
Certain legal traditions have remained
Changes in custom practices, change to society and why these changes have happened
Short timeline v. Long timeline
Observation v. archives (and memories)
Social reproduction and social change
How did the Chagga political economic milieu change over time?
Milieu – live in the environment (what’s around you at the time)
Shapes the types of laws at that time
Understand why individuals at that time might make the decisions they are making
Political Milieu
19th century chiefdoms → 20th century colonial state
Chiefs had the monopoly over the land but the British didn’t allow these chiefs to keep these monopolies
Economic Milieu
10th century subsistence and banana farming → 20th century coffee cash cropping
Women responsible for the substance and the men in charge of the banana
How customary is customary law?
Colonial law – trade, political structure, judiciary and courts
Customary law – land rights, inheritance, gender rights
What were the different roles of English and Cantonese languages in colonial Hong Kong?
DIGLOSSIA
Two separate worlds defined by separate languages
CANTONESE
Spoke it: Majority of people
Where spoken: home, everyday life, street transactions, vast amount of social interactions
Associated with: Inner values
What can cantonese do?: People feel more comfortable when they are less stressed, reminded of their culture, member of society, that you have similar values (what matters to me, matters to you)
ENGLISH
Spoke it: Very few elite
Where spoken: international trade, higher education, courts
Associated with: the outside language, outer values, success, internationalism stylishness, academic achievement
What can english do? An outward power, tapping into different value system, different way of acting
How did the speaking of Cantonese in the courtroom disrupt the adversarial trial?
Speaking cantonese was “looked down upon” in the sense that it was the “street language” not professional nor was it seen as the commoners language it was saved for the regular people and the uneducated. English was used because it was “prestigious” and only a few, educated, elite professionals knew it and used it.
Using cantonese in the courtroom disrupted the adversarial trial because words and phrases got mixed up and misinterpreted as well.
Why was Christian law so readily accepted by the Hawaiians?
Conversion to Christianity
Queen Hawaii eagerly agreed with the missionaries
Christianity offered Jehovah as “new god” as her personal god
Adoption of Christian written laws
Made them learn to read and write
Keep foreigners in line
In what ways did the adoption of Christian law change Hawaiian society?
Public trials and hangings
Public punishment
Transitioned punishment from the name of the queen to the name of the public
Discipline and Self-Control
Self control was the self vigilance to make sure that your weren’t acting against the Christian way
Why did Hawaiians want a constitution and even more western(ized) laws?
Debt
Special privileges for foreigners
They wanted special treatment
Makes it harder for the Hawaiian government
Declaration of rights, constitution, and extensive laws would make everyone = (no special treatment)
What are the 4 dispute discourses Hirsch describes? By whom, where, and when are they used?
Islamic Law -Islamic law- rights and duties -obeying the quran and allah. Usually men turn to islamic law more that women do, the islamic law is very favored to men and consider them to be the superior gender, they are head of the household, support the family and get the education and careers while women focus on the house duties and children and pleasing the husband.
Swahili Ethics- another muslim concept but primarily focused on justice. Doing what is right and what should be done appropriate behavior.
Spiritual Health- usually used in marriage for example if there’s a problem in the marriage spiritual health suggest its sexual relationship issues.
And it revolves around the concept that noone is at fault and both genders use it however more female related (women turn to spiritual help than men)
Kenyan Law -kenyan law is considered the State law and has British colonial state law and Written law
This discourse is mostly relevant in custom claims and property
How is heshima factored into the way a dispute is resolved?
Heshima is considered and described as respect, dignity, modesty, reputation, secured through behavior that is not shameful for example for men heshima is knowledge and money as for women heshima is respecting their morals and purity.
Heshima is factored into the way a dispute is resolved because its seen as a “structure” or “example” of how someone is to act, if the dispute is involving someone to “lose” their heshima then they find a solution in order to maintain their heshima, so in this example a woman finds herself
What should we take as the operating “law” here?
The law in this case is a “judge” or person of authority looks over the cases and disputes and solves them or gives a resolution according to what they believe will
help them conserve their heshimna.
