Moreover, there are certain false ideas connected with this distinction of societies into matriarchal and patriarchal that it is necessary to remove before we attempt to go further. In all societies, primitive or advanced, kinship is necessarily bilateral. But society tends to divide into segments local groups, lineages, clans, etc. When a society is divided into groups with a rule that the children belong to the group of the father we have patrilineal descent, while if the children always belong to the group of the mother the descent is matrilineal.
There is, unfortunately, a great deal of looseness in the use of the terms matriarchal and patriarchal, and for that reason many anthropologists refuse to use them. If we are to use them at all, we must first give exact definitions. A society may be called patriarchal when descent is patrilineal i. On the other hand, a society can be called matriarchal when descent, inheritance and succession are in the female line, marriage is matrilocal the husband removing to the home of his wife , and when the authority over the children is wielded by the mother's relatives.
If this definition of these opposing terms is accepted, it is at once obvious that a great number of primitive societies are neither matriarchal nor patriarchal, though some may incline more to the one side, and others more to the other. Thus, if we examine the tribes of Eastern Australia, which are sometimes spoken of as matriarchal, we find that marriage is patrilocal, so that membership of the local group is inherited in the male line, the authority over the children is chiefly in the hands of the father and his brothers, property what there is of it is mostly inherited in the male line, while, as rank is not recognised, there is no question of succession.
The only matrilineal institution is the. There is some evidence, for example, that the obligation to avenge a death falls upon the relatives in the male line rather than upon those in the female line. We find an interesting instance of this bilateralism, if it may be so called, in South Africa, in the OvaHerero tribe. The facts are not quite certain, but it would seem that this tribe is sub- divided into two sets of segments crossing one another.
For one set the omaanda descent is matrilineal, while for the other otuzo it is patrilineal. A child belongs to the eanda of its mother and inherits cattle from its mother's brothers, but belongs to the oruzo of its father and inherits his ancestral spirits. Authority over the children would seem to be in the hands of the father and his brothers and sisters.
It is now clear, I hope, that the distinction between matriarchal and patriarchal societies is not an absolute but a relative one. Even in the most strongly patriarchal society some social im- portance is attached to kinship through the mother; and similarly in the most strongly matriarchal society the father and his kindred are always of some importance in the life of the individual.
In Africa we have in the south-east a group of tribes that incline strongly to patriarchy, so much so, in fact, that we may perhaps justifiably speak of them as patriarchal. Descent of the social group, inheritance of property, succession to chieftain- ship, are all in the male line; marriage is patrilocal, and authority in the family is strongly patripotestal. In the north of Africa, in Kenya and the surrounding countries, there is another group of strongly patriarchal peoples, some of them Bantu-speaking, while others are Nilotic or Hamitic.
Between these two patriarchal regions there is a band of peoples stretching apparently right across Africa from east to west, on the level of Nyasaland and Northern Rhodesia, in which the tendency is towards matriarchal institutions. Descent of the social group, inheritance of property, and succession to the kingship or chieftainship are in the female line.
In some of the tribes marriage seems to be matrilocal, at any rate temporarily if not permanently, i. Unfortunately, on the very points with which I am now dealing the information is scanty and certainly very incomplete. There are, however, two points I wish to bring out. The first concerns the behaviour of the mother's brother to his sister's son. We are told that 'the mother's brother is a personage of vast importance; having the power even of life and death over his nephews and nieces, which no other relations, not even the parents, have; he is to be held in honour even above the father.
This is avunculi potestas, which among the Balla is greater than patria potestas. In speaking of the mother's brother, it is customary to use an honorific title given to people who are re- spected very highly' op. This kind of relation between the mother's brother and the sister's son is obviously what we might expect in a strongly matriarchal society. But how then, on Mr. Junod's theory, can we explain the change which must have taken place from this sort of relation to that which now exists among the BaThonga? This brings me to another point which it will not be possible to discuss in detail but which has an important bearing on the argument.
We have been considering the relation of the sister's son to his mother's brother; but if we are to reach a really final explanation, we must study also the behaviour of a man to his other relatives on the mother's side, and to his mother's group as a whole. Now in the Friendly Islands the peculiar relation between a sister's son and a mother's brother exists also between a daughter's son and his mother's father.
The daughter's son must be honoured by his grandfather. He is 'a chief to him. He may take his grandfather's property, and he may take away the ofi'ering that his grandfather makes to the gods at a kava ceremony. The mother's father and the mother's brother are the objects of very similar behaviour patterns, of which the out- standing feature is the indulgence on the one side and the liberty permitted on the other.
Now there is evidence of the same thing amongst the BaThonga, but again we lack the full information that we need. Junod WTites that a grandfather 'is more lenient to his grandson by his daughter than his grandson by his son' op cit. In this connection the custom of calling the mother's brother kokwana grandfather is significant.
Ju nod's theory. In a strongly matriarchal society the mother's father does not belong to the same group as his grand- child and is not a person from whom property can be inherited or who can exercise authority. Any explanation of the liberties permitted towards the mother's brother cannot be satisfactory unless it also explains the similar liberties towards the mother's father which are found in Polynesia, and apparently to some extent in South Africa.
In primitive society there is a strongly marked tendency to merge the individual in the group to which he or shei belongs. The result of this in relation to kinship is a tendency to extend to all the members of a group a certain type of behaviour' which has its origin in a relationship to one particular member of the group. Thus the tendency in the BaThonga tribe would seem to be to extend to all the members of the mother's group family or lineage a certain pattern of behaviour which is derived from the special pattern that appears in the behaviour of a son i.
Since it is from his mother that he expects I care and indulgence he looks for the same sort of treatment from 1 the people of his mother's group, i. The patterns that thus arise in relation to the. If I had time I think I could show you quite conclusively that this is really the principle that governs the relations between an individual and his mother's kindred in the patriarchal tribes of South Africa. I must leave the demonstration, however, to another occasion. I can do no more now than illustrate my statement. Junod has well shown, a payment made in compensation to a girl's family for her loss when she is taken away in marriage.
Now, since in the patriarchal tribes- — of South Africa a woman belongs to her father's people, the com- pensation has to be paid to them. But you will find that in many j i the tribes a certain portion of the 'marriage payment' is handed over to the mother's brother of the girl for whom it is paid. Amongst the BaSotho a portion of the cattle received for a girl on her marriage may sometimes be taken by her mother's brother, this being known as ditsoa. Now the natives state that the ditsoa cattle received by the mother's brother are really held by him on behalf of his sister's children.
If one of his sister's sons or daughters is ill he may be required to offer a sacrifice to his ancestral spirits, and he then takes a beast from the ditsoa herd. Also, when the sister's son wishes to obtain a wife, he may go to his mother's brother to help him to find the necessary cattle and his uncle may give him some of the ditsoa cattle received at the marriage of his sister, or may even give him cattle from his own herd, trusting to being re- paid from the ditsoa cattle to be received in the future from the marriage of a niece.
I believe that the Native Appeal Court has decided that the payment of ditsoa to the mother's brother is a voluntary matter and cannot be regarded as a legal obligation, and with that judgment I am in agreement. I quote this custom because it illustrates the sort of interest that the mother's brother is expected to take in his sister's son, in helping him and looking after his welfare. It brings us back to the question as to why the mother's brother may be asked to offer sacrifices when his nephew is sick. In south-east Africa ancestor worship is patrilineal, i.
Junod's statements about the BaThonga are not entirely clear. In one place he says that each family has two sets of gods, those on the father's side and those on the mother's; they are equal in dignity and both can be invoked op. But in another place it is stated that if an offering has to be made to the gods of the mother's family this must be through the maternal relatives, the malume op.
Other passages confirm this and show us that ancestral spirits can only be directly approached in any ritual by their descendants in the male line. The natives of the Transkei are very definite in their state- ments to me that a person's maternal gods, the patrilineal ancestors of his mother, will never inflict supernatural punishment upon him by making him sick.
I am not quite so sure about the Sotho tribes, but I think that they probably have similar views. For children are only fully incorporated in their father's lineage when they reach adolescence. So in the Transkei a woman, when she marries, should be given a cow, the uhidiinga cow, by her father, from the herd of her lineage, which she can take to her new home. Since she may not drink the milk from her husband's herd during the early period of her married life she can be provided with milk from this beast that comes from her lineage.
This cow constitutes a link between herself and her lineage, its cattle, and its gods, for cattle are the material link between the living members of the lineage and the ancestral spirits. So if she is sick she can make for herself a necklace of hairs from the tail of this cow and so put herself under the protection of her lineage gods. Moreover, if one of her infant children is sick, she can make a similar necklace which is thought to give protection to the child. When her son is grown up he should receive an uhulunga bull from his father's herd, and thereafter it is from the tail of this beast that he will make a protective amulet; similarly the daughter, when she marries, is detached from her mother, and may receive an iibulunga cow from her father.
But though, according to the statements made to me, the maternal ancestors vrill not punish their descendant with sickness, they can be appealed to for help. When, therefore, a child is sick the parents may go to the mother's brother of the child, or to the mother's father if he is still living, and ask that a sacrifice shall be offered, and an appeal for help made to the child's maternal ancestors. This, at any rate, is stated as a practice in the Sotho' tribes, and one of the purposes of the ditsoa cattle that go from the marriage payment to the mother's brother of the bride is said to be to make provision for such sacrifices if they should be needed.
This brings us to the final extension of the principle that' I have suggested as the basis of the customs relating to the mother's brother. The pattern of behaviour towards the mother, which is developed in the family by reason of the nature of the family group and its social life, is extended with suitable modifications to the mother's sister and to the mother's brother, then to the group of maternal kindred as a whole, and finally to the maternal gods, the ancestors of the mother's group.
The father and his relatives must be obeyed and respected even worshipped, in the original sense of the word , and so therefore also must be the paternal ancestors. The father punishes his children, and so may the ancestors on the father's side. On the other hand, the mother is tender and indulgent to her child, and her relatives are expected to be the same, and so also the t. The set of values that we here meet with in the relations of an individual to his kindred on the two sides must, therefore, also have their proper ritual expression.
The subject is too vast to deal with at all adequately here, but I wish to discuss one point. Amongst the BaThonga, and also in Western Polynesia Fiji and Tonga , the sister's son or in Tonga also the daughter's son intervenes in the sacrificial ritual. Junod describes a ceremony of crushing down the hut of a dead man in which the batukulu sister's chil- dren play an important part. They then, among the BaThonga clans, seize the portions of the sacrifice that have been dedicated to the spirit of the dead man and run away with them, 'stealing' them op.
When the uncle is alive the nephews have the right to go to his village and take his food. Now that he is dead they come and do this again, as part of the funeral ritual, and as it were for the last time, i. As a man fears his father, so he fears and reverences his paternal ancestors, but he has no fear of his mother's brother, and so may act irreverently to his maternal ancestors; he is, indeed, required by custom so to act on certain occasions, thus giving ritual expression to the special social relations between a man and his maternal relatives in accordance with the general function of ritual, as I understand it.
It will, perhaps, be of help if I give you a final brief statement of the hypothesis I am advancing, with the assumptions involved in it and some of its important implications. The characteristic of most of these societies that we call primitive is that the conduct of individuals to one another is very largely regulated on the basis of kinship, this being brought about by the formation of fixed patterns of behaviour for each recognised kind of kinship relation.
This is sometimes associated with a segmentary organisation of society, i. While kinship is ahvays and necessarily bilateral, or cognatic, the segmentary organisation requires the adoption of the uniHneal principle, and a choice has to be made between patrilineal and matrilineal institutions. In patrihneal societies of a certain type, the special pattern of behaviour between a sister's son and the mother's brother is derived from the pattern of behaviour between the child and the mother, which is itself the product of the social life within the family in the narrow sense.
This same kind of behaviour tends to be extended to all the maternal relatives, i. The term malunie, primarily applied to the mother's brother, is extended to the sons of those men, who are also malume. If my mother's brothers are dead it is their sons who will have to sacrifice on my behalf to my inaternal ancestors. In the northern part of the tribe the term malume has gone out of use, and the mother's father, the mother's brother, and the sons of the mother's brother are all called kokzvana grandfather.
However absurd it may seem to us to call a mother's brother's son, who may be actually younger than the speaker, by a word meaning 'grandfather', the argument of this paper will enable us to see some meaning in it. In societies with patrilineal ancestor worship such as the BaThonga and the Friendly Islanders the same type of behaviour may also be extended to the gods of the mother's family.
In conclusion, may I point out that I have selected the subject of my contribution to this meeting because it is one not only of theoretical but also of practical interest. For instance, there is the question as to whether the Native Appeal Court was really right in its judgment that the payment of the ditsoa cattle to the mother's brother of a bride is not a legal but only a moral obligation.
So far as I have been able to form an opinion, I should say that the judgment was right. Now the study of the exact position in which a person stands to his maternal relatives is one without which it is impossible to arrive at a completely accurate understanding of the customs of lobola. One of the chief functions of lohola is to fix the social position of the children of a marriage. The natives consider that the strongest of all social bonds is that between a child and its mother, and therefore by the ex- tension that inevitably takes place there is a very strong bond between the child and its mother's family.
The function of the lohola payment is not to destroy but to modify this bond, and to place the children definitely in the father's family and group for all matters concerning not only the social but also the religious ancestors is first my mother's father, then, if he is dead, my mother's brother, and after the decease of the latter, his son, who may be younger than I am.
There is a similarity of function for these three relationships, a single general pattern of behaviour for me towards them all and this is again similar in general to that for grandfathers. The nomenclature is, therefore, appropriate. If no lobola is paid the child inevitably belongs to the mother's family, though its position is then irregular.
I have said enough, I hope, to show that the proper understanding of customs relating to the mother's- brother is a necessary preliminary to any final theory of lobola. If, for instance, we attempt to apply to the customs of the simpler peoples our own precise distinctions between the law relating to persons and the law relating to things we shall produce nothing but confusion in the result.
With us one of the most important aspects of succession is the transmission of property by inheritance. Yet in some of the simplest societies this is a matter of almost no significance at all. In an Australian tribe, for example, a man possesses a few weapons, tools, utensils and personal ornaments, things of little value or permanence. On his death some of them may be destroyed, others may be distributed among his relatives and friends. But their disposal is of so little importance, unless in relation to ritual, that it is often difficult to find any rules of customary procedure.
But even in such simple societies, where inheritance of private property may be said not to exist or to be of minimal importance, there are problems of succession in the widest sense of the term. The term 'succession' will here be taken as referring to the transmission of rights in general. A right exists in, and is de- finable in terms of, recognised social usage. A right may be that of an individual or a collection of individuals. It may be defined as a measure of control that a person, or a collection of persons, has over the acts of some person or persons, said to be thereby made liable to the performance of a duty.
Rights may be classified as of three main kinds: a Rights over a person imposing some duty or duties upon that person. This is the jus in personam of Roman law. A father may exercise such rights over his son, or a nation over its citizens. XX, No. This is the jus in rem of Roman law in relation to persons. We may consider a few examples from such a simple society as an Australian tribe. A man has certain rights over his wife. Some of them are rights in personam whereby he may require from her the performance of certain duties.
Others are rights in rem. If anyone should kill the wife he commits an injury against the husband. If anyone should have sexual intercourse with the wife without the consent of the husband he commits an injury against the latter. In some tribes a man may lend his wife to another; this is an exercise by the husband both of his rights in personam and of his rights in rem. In a great number of Australian tribes the custom of the levirate holds sway.
By this, when a man dies all his rights over his wife and over his immature children are transferred to his younger brother, or failing such, to an agnatic cousin. This is a simple instance of fraternal succession. What is transferred is certain rights in perso? Let us next consider, in such a tribe as the Kariera of Western Australia, the nature of the group that I shall call a 'horde'.
This is an extension of the terms 'corporation' and 'estate' as they are commonly used in law, but I think this extension is justifiable, and hope that at any rate it will be admitted for the purposes of the present exposition. By an estate is here meant a collection of rights whether over persons or things with the implied duties, the unity of which is constituted either by the fact that they are the rights of a single person and can be transmitted, as a whole, or in division, to some other person or persons, or that they are the rights of a defined group the corporation which maintains a continuity of possession.
A personal estate thus corresponds to that universitas juris which is what, in Roman law, was transmitted by inheritance. The corporate estate of a Kariera horde includes in the first place its rights over its territory. The continuity of the horde is maintained by the continuity of possession of the territory, which remains constant, not subject to division or increase, for the Australian aborigines have no conception of the possibility of territorial conquest by armed force.
The relation of a horde to its territory does not correspond exactly to what we regard as 'ownership' in modern law. It has some of the qualities of corpor- ate ownership, but also partakes of the nature of the relation of a modern state to its territory, which we may speak of as the exercise of 'dominion'. Rights of ownership over land and rights of dominion have seemingly both had their origin by development and differentiation from such a simple relation as that exemplified in the Australian horde. This was actually an act of war and as the invaders took care to come in force the horde whose rights were thus invaded had no effective remedy.
The adult male members of the horde owe certain duties to it so that it has rights in personam over them. It also has rights in rem, for if one of them is killed, by violence or by sorcery, the horde as a whole conceives itself to have been injured and takes steps to obtain satisfaction. Women and children are not members of the horde in the same sense as adult males. If a man's wife is 'stolen' it is he as an individual who seeks satisfaction though he will have the backing of the other members of the horde.
But indirectly she also belongs to the horde so that when her husband dies she should by custom pass into the possession of some other member of the horde and not to some person outside. Since the Kariera horde is exogamous every female child passes by marriage out of the possession of her parents and out of the possession of the horde into the possession of her husband in another horde. By Australian custom this transfer of possession, i. Male children may be said to pass out of the possession of the parents and into direct possession of the horde at initiation.
This is, in some tribes, symbolically expressed in the initiation ritual. The Kariera horde affords an example of perpetual corporate succession. It will be obvious, I think, that it contains the germs of the state and of sovereignty as we know them in more complex developments. Thus, as the terms have been used above, the United States of America is a 'corporation' having as its con- stituent 'estate' possession of, or dominion over, a certain territory subject, unlike that of an Australian horde, to increase by con- quest or purchase and certain specific rights, in personam and in rem, over the persons of its citizens.
The continuity of a corporation such as the Australian horde is dependent on the continuity of its estate. In the first place there is continuity of possession of the territory. Secondly, there is a continuity which transcends the space of a human life by the fact that as the group loses some members by death it acquires new members by the birth of children and the initiation of boys into the status of men. Children 'belong', we may say, primarily to the father, i. As the father in turn belongs to the horde this horde has some rights over his children.
When a girl reaches puberty the rights over her are transferred perhaps not in entirety but in great part from her father and his horde to her husband. When the boy reaches puberty he is transferred from his position of dependence on his father to that of an adult member of the horde. Now a member of the horde has certain rights over other members and over the territory of the horde. These rights are part of his personal estate or status. Thus there is a process of 'patrilineal succession' whereby the sons of male members of the horde become in their turn members, thus acquiring rights and having a share in the estate.
We are thus brought, after necessary and it is hoped not too tedious preliminary considerations, to the problem with which this paper is to deal, that of the nature and function of the unilineal transmission of rights. In the patrilineal succession of the Australian horde the most considerable part of the body of rights of a male person, his status, his personal estate as a sharer or co-parcener in the estate of a horde, are derived by liim through his father to the exclusion of his mother and are transmitted in turn to his sons to the exclusion of his daughters.
It is important, however, to recognise that in this instance, and, so far as we know, in all instances of patrilineal succession, some rights are also transmitted through the mother. Thus in the Kariera tribe a man has certain quite important rights over his mother's horde, over its individual members, and over its territory. In matrilineal succession the greater part of the body of rights of an individual, over things, over persons, or as a member of a corporation, are derived by him through his mother and can- not be transmitted to his children but devolve upon his sister's children.
As an example of a very thorough system of matrilineal succes- sion we may consider the taravad of the Nayar caste of Malabar. A taravad is an incorporated matrilineal lineage. It includes all living descendants in the female line of an original ancestress. It is constituted as a corporation a joint-family in the terminology of Indian lawyers by the possession of an estate which includes in the first instance possession of a house or houses and land, and in the second place rights over the persons of its members.
The control of the estate is in the hands of a 'manager' who is normally the oldest male member of the group. In order that the group may retain complete and exclusive possession of the children born to its female members the Nayars have established a system which denies all legal rights to a male parent. A Nayar girl is 'married' while still very young to a suitable bridegroom by the Hindu religious ceremony of the tying of a jewel.
It is probable that in former times the 'bridegroom' ceremoniously deflowered the virgin 'bride'. Thereafter the divorced bridegroom has no rights over the person, the estate or the children of his bride. At a later period the girl takes a lover. The Nayar system is the most thoroughgoing example of perpetual matrilineal succession. The lineage group maintains its continuity and its unity by not admitting any outside person to any share in its estate.
It retains possession of its own women and claims exclusive rights over the children born to them. The rights constituting a status, and similarly the duties, are of many different kinds, some relating to 'the world at large', to the society as a w-hole, others relating to some definite social group of which the individual is a member e. Everywhere in human society the status of an individual is very largely determined by birth as the child of a particular father and particular mother.
Behind the question of succession, there- fore, lies the question of what elements of status, i. Every society has to establish its system of rules in this matter and there is an immense diversity of systems to be found in surviving and historic communities. The almost universal rule is that an individual derives some elements of his status from or through his father, and others from or through his mother. It has to be remembered that in all societies there is a general difference between the status of a man and that of a woman, and in some societies these differences are very marked and very important.
Thus when a son 'succeeds' his father he may attain a status very similar to that of his father, but a daughter cannot do so to the same extent. The reverse holds true in the instance of a mother and her daughter on the one hand and her son on the other. The heir therefore acquires, through his mother, important elements of the status of his mother's brother. The king's sister, who holds a very important position, is, of course, succeeded by her daughter. One solution of the problem of the determination of status would be to let the sons derive from the father and daughters from the mother.
This principle is only known to be adopted in a few tribes, about which we know very little, in East Africa and in New Britain. As a working arrangement it has weighty objections which cannot be gone into here. It is possible to have a system in which a child, by birth, acquires the same rights, of the same kind and to an equal degree, over the persons to whom he is related through his father and those to whom he is related through his mother.
An instance of this is that where a person has an equal expectation of testamentary or intestate succession to the estate of the brothers and sisters of his father and those of his mother. A further instance is provided by the customs relating to wergild amongst the Teutonic peoples. This range varied in different Teutonic communities and perhaps in the same com- munity at different times.
Amongst some of the Anglo-Saxons it extended as far as fifth cousins. If a man were killed all the members of his sib could claim a share in the indemnity wergild paid by the killer, proportionate to the degree of the relationship. Inversely, if a man killed another all members of his sib were under obligation to contribute to the blood-money he had to pay, each contributing in the same proportion as he would receive if the man himself had been killed. The members of a man's sib had specific rights in rem in relation to him and specific duties in personam towards him.
The solution adopted by the great majority of human societies of the problem relating to the determination of status has been one by which a child derives certain rights and duties through the father and others of a different kind through the mother. Where the rights and duties derived through the father preponderate in social importance over those derived through the mother we have what it is usual to call a patrilineal system. Inversely a matrilineal system is one in which the rights and duties derived through the mother preponderate over those derived through the father.
There are, however, some societies in which there is a fairly even balance between the elements of status derived through the father and those through the mother. An example is provided by the OvaHerero of south-west Africa. Through his mother a child derives membership in an eanda, a matrilineal clan; through his father he becomes a member of an oruzo, a patrilineal clan.
There is thus a double system of clans crossing one another. As both kinds of clans are exogamous a man cannot belong to the eanda of his father or to the onizo of his mother. It seems desirable to retain the word 'sib' for the bilateral group of kindred to which it was originally applied.
Secular property is inherited only within the eanda so that a man inherits such property from his mother's brother and transmits it to his sister's son. On the other hand through his father and as a member of his oruzo he has rights and duties of other kinds in relation to that group. Certain sacred cattle may only be inherited within the onizo and are therefore transmitted from father to son.
There are to be found in Africa and in Oceania other in- stances of systems in which patrilineal and matrilineal succession are combined and more or less balanced against one another. In a considerable part of Africa this is rationalised by a conception that every human being is compounded of two principles, one, called the 'blood' in Ashanti, derived from the mother, the other, the 'spirit', derived from the father.
Probably the most important factor in determining the nature of succession in the simpler societies is the need of defining rights i7i rem over persons. When a child is born there is the question, 'To whom does the child belong? An article by anarchist criminologist Larry F. He confirms by silence that I am right to conclude that Kropotkin had nothing serious to say about ordinary everyday interpersonal conflicts, and that he had nothing to say about dispute resolution processes.
In , Professor Jeff Ferrell, after a 12 year sabbatical away from anarchism, authored a brief entry for Kropotkin in Fifty Key Thinkers in Criminology. Probably few people are aware that crime in the United States has been declining for decades. Crime and the fear of crime are, like everything else in this society, unequally distributed. Tell them that Monsanto and Walmart are greater criminals than their assailants.
Prince Kropotkin identified three categories of crimes: protection of property, protection of government, and protection of persons. I know one legal system — that of the United States -- far better than Kropotkin knew any legal system, but I would not even try to make such an estimate. I think his is much too high. But it is also beside the point, if the point is the resolution of disputes in a modern anarchist society.
When the government apparatus occasions disputes, they are often disputes within the governmental apparatus. The major classical anarchist argument is that the protection of property is the major purpose of government Kropotkin again :. Half our laws, -- the civil code in each country, -- serves no other purpose than to maintain this appropriation [of the fruits of labor], this monopoly for the benefit of certain individuals against the whole of mankind.
Three- fourths of the causes decided by the tribunal are nothing but quarrels between monopolists — two robbers disputing over their booty. Again the estimates are arbitrary. The description is ludicrously false with respect to the criminal law. The defendants and their victims who end up in court rarely fit the description of monopolists fighting over the spoils of exploitation. Probably no case, civil or criminal, ever addressed by a Neighborhood Justice Center fits the description.
Some plaintiffs in civil cases such as evictions and collection of consumer debts might qualify as robbers and monopolists in some highly hyperbolic sense, but not the defendants in those cases. Drug law prosecutions? Traffic violations? Antitrust prosecutions? Name changes? The drafting of contracts, wills, powers of attorney and trust agreements? Courts do many things.
Now it is old news that there is some correlation between poverty and crime. However, poverty does not, for instance, explain white-collar crime. White-collar criminals are usually not poor and usually did not grow up in poverty. Even that may not be completely true. For some people, crime is work. It is nonetheless possible in a society without private or state ownership of the means of production for there to be disputes about personal property, and for there to be disputes which, while basically personal, take the form of stealing or destroying property.
The anarchist criminologists who are few and far between do complain a lot about corporate crime and crimes of state. But the man on the street is afraid of street crime.
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Stronger enforcement of anti-trust laws and environmental laws would do more for Josephine Average than any possible crackdown on street crime. But that would do nothing to reduce his fear of crimes against her person and property. The anarchists, and the anarchist criminologists, sympathize with the criminals, not the victims. Most people sympathize with the victims, not the criminals. This is not just a public-relations problem for anarchists. Contemporary anarchist criminologists have added nothing to the classical arguments except a little post-modernist punk posturing.
They are mediocre, unpersuasive, and derivative. The only novelty is the bad-boy braggadocio. The anarchists continue: If some people are still anti-social after the revolution, they must be crazy. We will cure them by gentle treatment. Violent people are usually not crazy.
Crimes of passion are not committed mainly by maniacs. The shocking fact about wife-beaters, who are numerous, is not that they are numerous, but that they are ordinary. As shown by my exemplary primitive societies, their dispute resolution processes are directed toward reconciliation, not punishment. But at least they have dispute resolution processes. The mechanism of restraint which operates most effectively is one which centralized institutional societies undermine — the interaction of public opinion and introjected social standards.
The ultimate sanctions of such a community, ostracism and excommunication, are probably more powerful than any institutional penalty. For Dr. He has no conception of dispute resolution processes. No anarchist does, as far as I know. They are all AWOL. Well then, the anarchists go on, we will raise a new generation, unwarped by capitalism and the state.
Our children we are assured will, after anarchist tutelage, never exhibit aggression or hostility. With parents like that, I think they will. Hippie parents may have punk children who have hipster children. They might go on to be just good friends. The whole idea that interpersonal disputes are inherently anti-social or pathological is literally reactionary. It assumes an organic, holistic community which supposedly existed in the distant past. Even mainstream sociologists and anthropologists understand that.
Economic inequality is certainly an important cause of crime. The state is itself a source of social disorder. They should be explaining that anarchy, the alternative to law and the state, is a voluntary form of society based on equality and mutual aid. The law is a crude and ineffective way to resolve conflicts between people. More sophisticated than their economism and their moral indignation are anarchist critiques of the nature of law as a force for order, regardless of whose interests it serves and how badly it behaves.
No two criminals are exactly the same. The consequences are never exactly the same. But the laws are exactly the same. Anarchists believe, correctly -- but only as an act of faith -- that law does not provide much order, and that what order it does provide is often the wrong kind of order. They are unaware that even many social scientists acknowledge that most social order, such as it is, is even today maintained by nonstate — by anarchist — social relations. Anarchists should stop pretending that their utopia will be one of universal harmony. They should acknowledge that there may always be disputes.
But there are noncoercive, conciliatory ways of resolving most disputes in decentralized, egalitarian, anarchist societies. Disputes are universal. Third-party disputing processes are not universal, but they are very common. The more complex the society, the more likely it is to have processes of mediation or arbitration or adjudication, singly or in combination.
A major determinant of their presence, and of which ones are present, is social scale and complexity. Anarchists are not in agreement about how complex their anarchist society should be. Like the classical anarchists, I am convinced that modern anarchy would have to be, as primitive anarchy always was, radically decentralized. This implies a limit on how much of existing society it is possible or desirable to maintain. Rather, it has to approximate the Gemeinschaft , not the Gesellschaft ideal type. That society should, at its foundations, consist of face-to-face communities, was understood by Fourier, Kropotkin, Malatesta, Goodman, Perlman, Zerzan and many others.
In such communities, negotiation and mediation would be, according to my arguments, viable, effective, and anarchist.
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It is a little more difficult to envisage what form dispute resolution would assume under anarcho-syndicalism. Certainly interpersonal disputes would arise in the workplace, as they often do now, although, no syndicalist has acknowledged this. They might instead add these disputes to the agenda probably already overburdened of the workplace assemblies, or a disputant might do that herself.
These meetings would be scheduled after work, if, under syndicalism, there ever is any time after work. Most workers in assembly will probably shun this obligation, because their relationship, if any, to the disputants is simplex, except for a few pals and mates. A tribunal consisting of partisans of the parties, plus the managers, plus whatever militants like to go to meetings, seems to me to be inferior to any known dispute resolution process, except maybe trial by ordeal.
What about mediation? Pure mediation requires a mediator accepted by both parties, but where neither disputant has to accept the settlement proposed by the mediator. Who might the mediator be? We have two precedents. In primitive societies, the mediator is someone who knows the disputants, in person or by reputation, or who at least has personal ties to the kin of both disputants. He is usually a person of greater wealth, or higher prestige, who can, if necessary, bring in his own kin and clients, added to the supporters of the cooperative disputant, against a recalcitrant party.
Under syndicalism, there might not be anybody with personal knowledge of the parties, or anyone who has cross-cutting ties with them, or with their friends or family. If there is somebody like that, he might not want to be a mediator, or he might not be good at mediation. Of course, under anarcho-syndicalism, there can be no differences in wealth.
Might there be differences in prestige? Spanish anarchism had its stars.
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I imagine that there would be an anarchist egalitarian aversion to differences in prestige, such that a more respected, more prestigious person would be discouraged from conducting a mediation from which he might emerge with even more prestige this is the main motivation for Ifugao mediators. Excellence and superiority are not syndicalist values. Neither is honor. The other precedent is modern ADL, conducted by trained, specialized mediators — professionals — who have the power of the state behind them.
I hope that syndicalists would reject that, but I am not at all sure that they would. They are not, in principle, opposed to the division of labor in a complex industrial society, but they are ignorant of, or indifferent to some of its ramifications. But the anarcho-syndicalist fathers, like all other anarchists, have nothing to say about interpersonal dispute resolution.
Despite having social science Ph. If an institution means a permanent organization , then there could be no anarchist institutionalization of justice, for institutionalized justice in that sense is necessarily part of the state. But organization might mean ad hoc disputing processes which people regularly resort to, like those I have described for several primitive societies. Perhaps the persons in conflict could select a mediator.
Once again, the leftist longing for peace, harmony and reconciliation has been turned against the left. Once again, the left — the academic left: nobody else has even heard of restorative justice — has been compromised, co-opted, and duped. Every time Charlie Brown runs up to kick the football, Lucy pulls it away at the last moment, and Charlie Brown ends up on his ass.
And every time, he thinks that next time will be different. The methods of RJ — reconciliation through confession, repentance and forgiveness  — are overtly Christian. If RJ essentially involves recourse to the supernatural, it violates, in the United States, the Constitutional separation of church and state, if it is implemented by the state.
Nor did the issue of the separation of church and state occur to the keenly-treated minds of three college professors who talked up the program at an annual meeting of the Southern Sociology Society. RJ was invented by pacifists who were inspired by an ideology of harmony. Nonetheless, as we will see, contemporary anarchist academics are prominent exponents of RJ. They always get off at the wrong stop. We saw that the NJCs made the tenuous and dubious claim to have been inspired by primitive disputing processes, those of the Kpelle for instance. We saw how false that was.
RJ supporters also claim indigenous inspiration, but they make a bigger deal about it. They take it for granted that RJ is identical to indigenous procedures, which is an untenable assumption. In much the same way that the Mormon Church retroactively converts the dead, RJ devotees adopt indigenous ancestors. They do that because indigenous peoples are chic , and also to legitimate themselves with an origins myth,  something no religion can do without.
We know very well that Mennonites invented RJ in the s, from religious motives. Whence came their ethnographic savvy? Probably not college. Christian theology cannot survive an encounter with either history or the ethnographic record. But they were modest compared to the claims made for RJ. NJCs were designed to deal with a specific range of disputes, especially those arising out of prior relationships.
But — with one conspicuous exception, to be discussed -- RJ has no theoretical or, indeed, rational basis. But the believers, the Arjays -- as I shall sometimes refer to them  -- promise the moon, as lunatics are wont to do. Their rhetoric is often a bizarre combination of solemnity and euphoria. Do I exaggerate? The therapeutic purpose, which was present, but usually muted, in the NJCs is in the forefront here. James Gibbs, Jr. The medical model of interpersonal conflict has absolutely no validity. In treating disputants as patients, RJ demeans them.
It licenses deep intrusions into personal life and the self. Curative means or healing is only the reverse side of punishment, the theory of cure runs parallel with the theory of punishment ; if that latter sees in an action a sin against right, the former takes it for a sin of the man against himself , as a falling away from himself. This is an uncanny anticipation — and anticipatory repudiation — of therapeutic justice.
The Therapeutic State is a paternalistic and authoritarian state. In the s, anti-institutional challenges shook the helping bureaucracies: the social workers, psychiatrists and psychotherapists. But they recovered their hegemony. Enthusiasts for RJ are, as were enthusiasts for NJCs, academics and social control professionals — judges, elite lawyers, social workers, etc. One would therefore expect them to be mindful of the NJC experience, not to mention the juvenile court experience.
But they are not. One reported that they were a great success,  citing none of the studies mentioned by Tomasic or myself. The NJCs, as we have seen, had the initial support of almost everyone except the people of the communities where they were installed. RJ enthusiasts have made many grandiose claims -- but, that RJ is a response to popular demand, is not one of them. The NJCs were an American phenomenon.
RJ originated in Canada and it has spread to many parts of the world. It may still be spreading. RJ is a very easy topic to write articles about. Many other academics do the same. For each, I first cite to the corresponding NJC claim. RJ is a voluntary, non-state alternative to the criminal justice CJ system. Lumping it is a non-state alternative to RJ only in the sense that it is no alternative at all. But if participation by the offender has to be entirely voluntary, then there exist almost no bona fide restorative justice programs.
For a subversive, non-state alternative to CJ — a new paradigm -- RJ is strangely popular with the state. It is endorsed by the United Nations  and has been implemented, in name at least, in many countries — including authoritarian states like Singapore, which allow nothing to escape state control.
Perhaps there is something infantilizing about RJ. Jesus taught that one must become as a child to enter into the Kingdom of Heaven. Arjays are in hopeless denial about this touchy matter. Here, then, is the first common feature of RJ and CJ. They are both court-annexed in some countries, such as Australia, police-annexed  and, as such, they are statist and coercive.
For this, the Mennonites and Quakers are as sorry as the Walrus and the Carpenter. State control of RJ is growing. RJ is above all about healing , according to the definitions by Howard Zehr and many others. If RJ is healing, who does it heal? In cases involving juveniles, the parents are brought in — but the juvenile court has always done all of that.
By definition, because this is RJ — there has to be a harm -- the victim has been harmed, physically, psychologically or financially. Besides, most offenders are unable to repair financial loss. Physical harm is redressed by medical care, not in an encounter group. Psychiatric, psychological and social services are available to victims, independently of RJ. Since the s, there have been significant support services available to the victims of crime. NJC mediation was a more protracted process, but as we have seen, its claims for success were also dubious.
The phases are distinguished by the nature and content of the information exchanged and the concomitant learning and by the degree of coordination involved. Modern societies are not unhurried. Paul saw on the Damascus road. In one infamous, oft-quoted anecdote, it was the victim, who really was blinded, while in custody, by a South African police officer, whose sight was metaphorically restored by the opportunity to tell his story to a Truth and Reconciliation Commission.
On at least one occasion, he reportedly kicked ass. I am sure the Arjays shed tears as sincerely as did the Walrus and the Carpenter. RJ is much less like therapy than theatre — the theatre of the absurd, or melodrama. If victim healing is dubious, offender healing is scandalous. As we have seen, the real focus of most RJ programs is on rehabilitating the criminal, not the victim. Naturally he would like to avoid that. The lion would rather eat the lamb than lie down with him, but, he might prefer lying down with the lamb to being caged.
But why should the lamb lie down with the lion? A child is petting the lamb. A dove of peace observes from a tree branch. I merely recognize its popularity. For the pacifist founders of RJ, retribution is anathema another religious word , and RJ is the alternative. Criminals too, they say, need to be healed. Although the principles of restorative justice profess that it is for both offenders and victims, the reality is that the majority of programs are predominantly being used for offender rehabilitation.
For the most part, victims are still being neglected by most practitioners in the countries where restorative justice is used. So by implication, in this regard, it makes little sense to talk of people as victims or offenders, or indeed victims or survivors. They are people, and people need to feel OK about themselves and sometimes need some help and support to achieve that. For victims, if not for sociology professors, it makes perfect sense to talk of people as victims or offenders.
Their common personhood did not prevent offenders from victimizing them. If they are, that has little to do with their criminality. Possibly juvenile delinquents, who are still growing up, should be treated therapeutically — at first, anyway. For the Arjays, a crime is an opportunity for ministration. For them, in accordance with their sickly Christian morality,  the criminal is a sheep gone astray. They wallow in bathos. They rejoice in it. Arjays are leper lickers. In the parable of the Prodigal Son, the whoring, wastrel son leaves home while the dutiful son remains to serve his father.
And they began to be merry. But not everybody began to be merry. Where would Christianity be without sin? Curiously, these Christians never discuss crime in terms of good and evil, although that is historically their stock in trade. Like Father Flanagan of Boys Town, they believe that there is no such thing as a bad boy -- or girl, or man, or woman. They often perceive RJ as favoring criminals over victims. What makes excuses acceptable is not so much that they are true as that they follow a culturally accepted script. I describe the victim as she and her deliberately.
In the kinds of cases relegated to RJ, more often than not the victim is female, and more often than not, the perpetrator is male. Often these are crimes of violence. Feminists have long criticized the unresponsiveness of the criminal justice system to female victims of male violence. They demanded that retributive justice be applied to these violent men.
Obviously RJ demands much more from the victim than from the criminal, although for almost anybody not ensorcelled by RJ ideology,it should usually be the other way around. Apology is a lot easier than forgiveness. In the unlikely event that I were a feminist, I would be even more suspicious of Restorative Justice than some feminists already are. In a way, RJ could be passed off as feminist. If feminism is associated with supposedly essential ist female attributes such as caring more about relationships than rights, being more cooperative than competitive, being a good listener, and being more conciliatory than vindictive,  then there is something warm, nurturing, amniotic and feminist about RJ.
The ideal or idealized woman, on this account, is also the ideal or idealized victim. She is predisposed to play the victim role in RJ dramas. She is the leading lady there. But feminists -- regardless to what extent they endorse or reject this unfortunate ideal type or stereotype -- have correctly foregrounded the criminal justice system as a major site of the oppression of women, by their relentless critique of the way it deals with violence against women.
For abused women they demand, of course, as a first priority, protection, which nobody openly opposes. But they go on to criticize, comprehensively, how women victims of crime are dealt with by the criminal justice system. Do feminists want men any men who rape or batter women to be treated like violent male criminals who are poor, young and black are treated? For now, I will confine myself to noticing that RJ is vulnerable to the feminist critique. RJ is better for male criminals than for female victims. Some feminists apparently feel as I do.
They are no exception to the widespread popularity of retributive justice. Academic advocates of RJ, many of them women, are very defensive when it comes to RJ in sexual and domestic violence cases. In fact, offender apologies often are insincere. Coerced apologies are insincere. That alone undermines claims that RJ is therapeutic for victims.
The RJ industry has too many stakeholders. The inarticulate -- and they will include many juveniles, and more generally the lower orders -- may not be good at telling their stories or voicing remorse in a way the victims recognize or which follow the RJ script. The Arjays — this shows how, as Christians, how heretical they are — posit that human nature is innately good. Self-realization, spiritual transformation, the warm glow of fellow-feeling — all that, just by attending a conference. Crime victims have justifiably complained about their neglect by the criminal justice system.
Victims received the right to be informed of developments in the case. They received the right to submit Victim Impact Statements to the court, or sometimes to address the court in person, about the impact of the crime on their lives. That lesson has direct application to RJ, the brave new paradigm, which is of vast international scope, which is endorsed by left and right, by police and criminals, by college professors and Christian pacifists, by anarchists and the U.
Obviously there is something deeply wrong here. Surely this is an experience which many victims will experience as an annoying waste of time, or which some will experience as a second victimization, and which many will choose not to go through. What some victims want is revenge, but what the Arjays want them to want is repentance, forgiveness and redemption.
It is not surprising that the major limitation on RJ aggrandizement is chronically low victim participation rates. And yet, many Arjays do that. Social scientists have used the word community in various ways, often imprecisely. In Keywords , Raymond Williams identified five modern meanings of the word. The assumption is that, typically, there is some continuity in time. We have seen that there are few if any organic communities in contemporary American cities. A related gambit is to keep the word but change the subject.
RJ addresses community problems by redefining whatever it does supposedly do as addressing community problems. Never mind if only a handful of persons are concerned in the matter, and maybe not very concerned. Defining a community by reference to members of other, equally suppositious communities? The families of victim and offender, who will usually be strangers to one another — even if victim and offender are not -- may not be neighbors, and may not share any social networks, and may not share the same values. The community provides the forum in which justice can occur. Or what it is?
And who says the community needs healing, just because somebody committed a crime there, which happens every day, everywhere? How do you heal an abstraction? Nonetheless, the cant of community persists in an evidentiary void and as an open affront to common knowledge. In primitive societies, as I have related, individual conflicts concern the community because the disputants have ties to kin groups, and sometimes also other groups, which are implicated because they are responsible for the wrongs of their members.
They just need to prevent intergroup conflict. There, often there exist no such groups, kin-based or anything-based. Only a few crimes have community-wide ramifications, by any definition of community. Modern society is largely a society of strangers. They feel no responsibility for helping you solve your personal problems. In a society as alienated as ours is, why should they? The criminal law has always recognized, as a stakeholder, an actor more encompassing than the criminal, the victim, and others immediately involved: the state.
In a statist society, the state is the only organized organ of the entire community. It establishes its own boundaries, by war if necessary. The state expropriates many conflicts, and also appropriates the means of their resolution. It creates a criminal law system for disputes to which it deems itself to be a party. The state claims to be hurt by any crime, even if it harms no one else.
Anti-statists have always objected to this, but we at least recognize the state as a deplorable reality. Claims of harm to unidentifiable, phantom communities are meaningless. Injuries to imagined communities  cannot be repaired any more than can injuries to Oz, or Never-Never Land, or Middle Earth, or the Abbey of Theleme, or Walden Two, because they do not exist.
The result will usually be, not to treat crimes as sins, but to treat sins as crimes, as the Puritans did and as the mullahs do. If it were, nobody would injure anybody. RJ Reduces Recidivism. Does RJ? The Arjays often take the high ground here a Mount is a good place from which to preach a Sermon. Reduced recidivism is a byproduct, but restorative justice is done first of all because it is the right thing to do. It is intrinsically good. However, the heavens are where manna falls from, and good manna is hard to find. Governments are not in the right-thing-to do business, although they have no objection if what they do, for their own reasons, happens to coincide with the right thing to do.
RJ has always depended on the state for both its funding and its referrals. The trend is for that dependence to continue and to increase. Unlike the NJCs, RJ has apparently not claimed to be faster and cheaper than adjudication, although I may have overlooked something. Certainly that was no part of its original rationale. Its facilitators and convenors are supposed to be graduates of training programs. There is no pretense this time that they are just volunteer public-spirited neighborhood people.
They are paraprofessionals. They and their support staffs, have to be paid. The adjudication, except for sentencing, is usually complete when RJ is called in. RJ can be used for pre-trial or pre-sentencing diversion;  that is its main use in Europe. With noticeable reluctance, the Arjays are making claims that RJ reduces recidivism reoffending.
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An early study by Mark S. Umbreit, whose devotion to RJ is fanatical, found that RJ reduced recidivism, but the difference was not statistically significant. When it began to be apparent that it did not, it was easy for politicians, police officers and others juggling tight budgets to disregard its other possible benefits. Discernment is often most acute when motivated by self-interest. There are further pertinent and interesting methodological reservations, which I will mostly pass over. To study recidivism, you have to follow up on the offender. Often, these studies are conducted by the RJ paraprofessionals themselves, who lack methodological sophistication and who are inclined to follow up on offenders only as long as it takes to document a happy ending.
A few studies have carried on further. The authors identified 39 studies, mostly from the United States, whose methodology was, in their view, up to professional standards. RJ is more effective with low-risk offenders, but not very effective with high-risk offenders. In other words: offenders who were less likely to reoffend, reoffended less often than offenders who were more likely to reoffend. Just like the conventional court system. The authors also report that RJ appears to be becoming more effective but that is merely an impression as of The main reason why RJ cannot do very much to reduce recidivism is that RJ cannot do very much of anything, for the same reason the NJCs could not.
The caseloads are too small. Even high rates of success, however defined, could not have much effect on crime rates. RJ for juvenile offenders has been in place in New South Wales where it is administered by the police since the s.
On Primitive Society And Other Forbidden Topics [Notes Fixed] 2011
The most comprehensive study in Europe of RJ effectiveness, especially with respect to recidivism, was published in April As with the NJCs, measurements of success are easy to rig. Cases where offenders decline RJ — if they have a choice — are not scored as failures.
Cases where victims decline to participate in the charade these are much more frequent are not scored as failures. Cases where offenders reoffend, but not within the relatively short periods in which they are followed up on, are not scored as failures. Sample sizes are small and there is usually not a control group by which to determine if offenders would not have reoffended anyway if they went through the conventional court system.
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