Professional Documents
Culture Documents
Reviewed Work(s): The Judicial Process among the Barotse of Northern Rhodesia by Max
Gluckman
Review by: Samuel Enoch Stumpf
Source: Harvard Law Review, Vol. 69, No. 4 (Feb., 1956), pp. 780-787
Published by: The Harvard Law Review Association
Stable URL: https://www.jstor.org/stable/1337489
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780 HARVARD LAW REVIEW [Vol. 69
campaign further helps to bring the marginal voters into one or the
other camp. Undoubtedly, the vigorous Truman campaign of I948,
which contrasted with that of Dewey, helped bring many back into the
Democratic fold.
Underlying the voting process as described by Berelson and his
colleagues are two related factors: first, there is a large area of agree-
ment between the two parties and between voters of different political
persuasions; secondly, politics is not a major concern for the majority
of the American electorate. Since the outcome of the election makes
little difference to the average voter, his interest is low and conformity
to the political climate he sees about him comes easily.
Perhaps the most provocative statements in Voting are about the im-
plications which the authors draw for our political system. Our tradi-
tional view, displayed in every civics textbook, has been that democracy
works best when each citizen is highly concerned with political affairs,
holds strong opinions, and votes according to a rational appreciation of
his own interests and those of the commonwealth. We all know how
far short of this ideal the mass of our citizens fall, a state of affairs
on which Voting provides ample documentation. Yet political democ-
racy endures, and has been, by and large, quite successful in grappling
with its problems.
The authors suggest that perhaps we have erred in insisting that
every citizen be politically active in a high degree. High interest might
produce a splintering of the electorate along many lines, destroying the
two-party system. A balance has to be drawn between cleavage and
cohesion, and the low political interest of American voters apparently
helps bring together the electorate once the heat of the campaign has died
away. Furthermore, the authors suggest, the group voting pattern lends
a stability to our government. Sharp fluctuations in the political line-up
are prevented by the resistance to change presented by such patterns of
voting. Flexibility in the political system, however, is maintained by
the marginal men who stand between the major social groupings.
Voting is the best example known to this reviewer of the power of the
new research techniques of the "behavioral sciences" and the relevance
of their findings to our understanding of society.
PETER H. Rossi *
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I956] BOOK REVIEWS 78i
has the problem of primitive law been given such thorough treatment.
But unlike Maine's works, the present book deals with a solid, wide,
and rich variety of fact, not with generalizations. The author's analysis
is, moreover, far more exciting than Maine's since his acquaintance with
his data is firsthand and recent and not derived from ancient literature.
The book is based upon several years of field work in Barotseland dur-
ing which the author observed and recorded proceedings in the native
courts. To set this book in perspective, something should be said first
about the Barotse.
Actually, the cases in this book are taken from the proceedings of the
courts of the Lozi tribe, one of many which are collectively known as
the Barotse. This dominant tribe of the Barotse nation is located in a
flood-plain which runs I20 miles from north to south along the Zambezi
River, the plain being twenty-five miles across at its widest. The Lozi
tribe, which was created sometime before i6cc A.D., numbers 70,000
to 8o,ooo people, and they are the formal rulers of the Barotse Province
of Northern Rhodesia, which has a population of 260,000 to 300,000
people. The author points out that the Lozi have no particular mythol-
ogy. The people do not write. They have ironic folktales, many pene-
trating maxims, and songs praising persons and things. They seem to be
keen historians and wise philosophers. The Lozi believe that they have a
genius for law and government, and with this estimate the author
agrees. They have a constitution under which the king and his councilors
are bound by law, the premise being that the king can, but should not,
do wrong. The center of personal, social, and the simple economic life
is the village, which is under a "headman." Foreign influences include
the work of the Paris Evangelical Mission, which has since i885, accord-
ing to the author, turned the Lozi into a nation of pagan-Christians,
and the British South Africa Company, whose influence, starting about
i900, has not significantly affected Lozi thinking about law, though it
has affected the hierarchical structure of the courts.
The Lozi court is held in an imposing building whose long roof covers
a rectangular area of ground where all the participants have specially
assigned places to sit. Cases are heard by a court composed of three sets
of councilors, each set placed according to rank at a different distance
from the seat of the king, who does not usually attend. The litigants sit
before these judges along with their kinsmen and witnesses. The
plaintiff states his case without being interrupted even if he injects
irrelevant details, and the defendant replies in the same way. There are
no lawyers representing either party. After statements by both sides,
the court, that is, the various councilors present, cross-examine the
parties and their witnesses. When all the evidence has been heard, each
councilor, beginning with the lowest rank, gives his judgment. The
senior councilor formulates the final judgment, which is subject to the
ruler's approval. The hearings are conducted with elaborate etiquette.
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782 HARVARD LAW REVIEW [Vol. 69
II.
In this case the wife sued for divorce mainly on the grounds that her
husband committed adultery with her mother's brother's wife, who ranks
as her mother. She also brought forward proof that before this her
husband had neglected her and taken goods from her, and to redress this
had paid a pot to her father. Later, when her father was ill, the husband
had not come to visit him, nor had the husband come to mourn on her
father's death. I give some representative judgments:
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I956] BOOK REVIEWS 783
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784 HARVARD LAW REVIEW [Vol. 69
new quarrel' . . . 'I support your wife; she is a good girl, a true
woman. If our children were the same, we would have children. She
sees the incest, and asks, "Is it my husband who goes to my mother?" '
. . . 'You slept with your wife's maternal uncle's wife, or you would have
appealed [he had been fined in a separate case for this adultery]. The
law does not agree that one enters the hut of another man, or ask his
wife for snuff, outside of him' . . . 'The law of nakedness is inherent,
it comes from childhood; small boys and girls hide their genitals. And
as IMENDA, my lord, says, the law of hiding from women crossing water
is from King Lewanika [d. i9i6]. Also, as IMENDA says, you were not
protecting her from crocodiles or you would have worried about the
other woman. If it were I, I would fine you for three things: (i) cross-
ing the water with naked women, against the law of Lewanika; (2) not
being afraid of the nakedness of your mother-in-law which is sleeping
with your mother-in-law; and (3) sleeping with another man's wife'
. . . 'I do not enter into the affair of the pot or the other affairs. Your
wife is freed by your crossing the water with her mother. To sleep with
your mother-in-law and to commit shame by seeing her naked are the
same thing. You cannot call your mother-in-law to see you undress, or
sleep. I see your wife is truthful when she says she cannot return to
you. I might have returned your wife on the other affairs because you
paid a pot, but I am stopped by the crossing of water with your mother-
in-law. I do not separate these. Your wife is freed, unless you are given
her by the NGAMBELA (Ri)' . . . 'Man, I speak by the law. I would
have called as witnesses the people of the village where you and she
slept, but in the other kuta you admitted your wrongdoing-crossing
the water with a woman who ought not to be seen familiarly. You
cannot even do that with a sister-in-law [with whom there is a joking
relationship]. It shows you look on her as a wife. And even if it is an
ordinary woman you should fear to cross. But bukwenyani (relationship
of parent-in-law and child-in-law) is a thing brought by God. You are
mad. Your wife asks for a divorce and I free her' . . . 'You, my
kinsman, I cannot be a renegade. You call your mother-in-law sister-
in-law. You know one must avoid one's wife's maternal uncle's wife in
the village. To cross water with a woman, an ordinary woman, is bad.
You did with your mother-in-law, she was naked and you carried her
dress. This is like sleeping with her. This is a terrible thing by our law:
to have intercourse with a dog, to have intercourse with a cow, to have
intercourse with a tabooed person like your mother-in-law here. So the
girl can come out of your hut.'
* . . . (PP. I48-50)
III.
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1956] BOOK REVIEWS 785
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786 HARVARD LAW REVIEW [Vol. 69
IV.
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i956] BOOK REVIEWS 787
Probably never in the history of our own or any other legal system
have lawmakers essayed to devise a comprehensive system of legal con-
trols for an industry as far in advance of that industry's development as
the United States Congress has attempted for our congeries of atomic
industries. For once the lawyers have been ahead of the scientists and
the engineers. Whether their achievement, the Atomic Energy Act of
I954,3 will prove to have been at the cost of sound planning, experience
alone can demonstrate. In the interim, the resulting array of unknowns
and uncertainties has created problems for the officials who must ad-
minister the act, for the industrial firms subject to it, and for the authors
of works like the one under review.
Fortunately, the authors of this commentary are well equipped to
speculate concerning the problems of interpretation and application to
I Southern Pac. Co. v. Jensen, 244 U.S. 205, 22I (I9I7) (dissenting opinion).
10 CARDOZO, THE GROWTH OF THE LAW 87 (I924).
1" Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United
States, I36 U.S. I, 48-50 (i890).
* Chairman of the Department of Philosophy and Lecturer in Jurisprudence in
the Law School. Vanderbilt University.
' Member of the New York, Tennessee, and District of Columbia Bars.
2 Member of the New York and District of Columbia Bars.
3 68 STAT. 9I9 (I954), 42 U.S.C. ?? 20II-28i (SuPP. II, 1955).
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