Hostname: page-component-586b7cd67f-2plfb Total loading time: 0 Render date: 2024-11-27T17:36:59.378Z Has data issue: false hasContentIssue false
  • English
  • Français

The Reasonable Man Revisited: Some Problems in the Anthropology of Law

Published online by Cambridge University Press:  01 July 2024

A. L. Epstein
A. L. Epstein*
Affiliation:
University of Sussex
Rights & Permissions [Opens in a new window]

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

“The reasonable man is recognized as the central figure in all developed systems of law, but his presence in simpler legal systems has not been noticed.” With this two-pronged assertion Max Gluckman (1955: 83) introduces a major theme of his analysis of the judicial process in Barotseland. The book in which he attempts this task has been widely and deservedly acclaimed, not only as a landmark in the study of primitive law, but also as an important contribution in the field of comparative jurisprudence. It has also been a work fruitful of controversy; in this paper I do not enter into the wider aspects of these controversies, but confine myself to discussion of the concept of the reasonable man. Gluckman's use of this idea is central to his description and analysis of the Lozi material, but it has had a rather mixed reception among anthropologists and lawyers alike. Thus Nadel (1956: 167), for example, while expressing certain reservations, approved on the whole and found the emphasis on reasonableness seemingly consistent with certain typical features of Lozi jurisdiction, but doubted whether this would help much in understanding practice in, say, Moslem courts. By contrast, Hoebel (1961: 437), in an otherwise favourable review, found himself unable to share Gluckman's hopes that the concept would find wide methodological use because “as an analytic concept the reasonable man is not an effective tool for the job.” Among lawyers and jurists the response was equally varied.

Type
Research Article
Information
Law & Society Review , Volume 7 , Issue 4 , Summer 1973 , pp. 643 - 666
Copyright
Copyright © The Law and Society Association, 1973.

Footnotes

AUTHOR'S NOTE: I am indebted to Professor Geoff Sawer, Faculty of Law, Research School of Social Sciences, Australian National University for comments on an earlier draft of this paper, in particular his helpful remarks on the question of legal standards. He is not of course responsible for the blemishes that remain in the paper as it now stands. I have also benefited from comments by Professor Andrew and Dr. Marilyn Strathern and from Professor Max Gluckman. If I have treated some of Gluckman's formulations rather critically here, I hope that it will at least be plain that this treatment is in itself a tribute to the enormous stimulus I have gained from his ideas.

References

ANDERSON, James (1955) “Review of the Judicial Process among the Barotse,” 18 The Modern Law Review 643.Google Scholar
AYOUB, Victor (1964) “The Judicial Process in Two African Societies,” in G., SCHUBERT (ed.) Judicial Behaviour: A Reader in Theory and Research.Google Scholar
BOHANNAN, Paul J. (1957) Justice and Judgment Among the Tiv. Oxford University Press for the International African Institute.Google Scholar
DEVLIN, Patrick (1965) The Enforcement of Morals. Oxford University Press.Google Scholar
DIAMOND, Arthur S. (1956) “Review of the Judicial Process among the Barotse,” 5 The International and Comparative Law Quarterly 624.Google Scholar
EPSTEIN, Arnold L. (1971) “Dispute Settlement among the Tolai,” 41 Oceania 157.Google Scholar
EPSTEIN, Arnold L. (1969) Matupit: Land, Politics and Change among the Tolai of New Britain. Matupit: Land, Politics and Change among the Tolai of New Britain: Australian National University Press.CrossRefGoogle Scholar
EPSTEIN, Arnold L. (1968) “Power, Politics and Leadership: Some Central African and Melanesian Contrasts,” in Marc, SWARTZ (ed.) Local Level Politics. Aldine Press.Google Scholar
EPSTEIN, Arnold L. (1967) “Injury and Liability: Legal Ideas and Implicit Assumptions,” 6 Mankind 376.Google Scholar
EPSTEIN, Arnold L. (1958) Politics in an Urban African Community. Manchester University Press.Google Scholar
EPSTEIN, Arnold L. (1954) Juridical Techniques and the Judicial Process. Rhodes-Livingstone Paper No. 23.Google Scholar
GLUCKMAN, Max (1969) “Concepts in the Comparative Study of Tribal Law,” in Laura, NADER (ed.) Law in Culture and Society. Chicago: Aldine Publishing.Google Scholar
GLUCKMAN, Max (1967) The Judicial Process among the Barotse of Northern Rhodesia. The Judicial Process among the Barotse of Northern Rhodesia: Manchester University Press.Google Scholar
GLUCKMAN, Max (1965a) The Ideas in Barotse Jurisprudence. Yale University Press.Google Scholar
GLUCKMAN, Max (1965b) “Reasonableness and Responsibility in the Law of Segmentary Societies,” in H. and L., KUPER (eds.) African Law: Adaptation and Development. University of California Press.Google Scholar
GLUCKMAN, Max (1955) The Judicial Process among the Barotse of Northern Rhodesia. The Judicial Process among the Barotse of Northern Rhodesia: Manchester University Press.Google Scholar
GULLIVER, Phillip H. (1963) Social Control in an African Society. Routledge and Kegan Paul.Google Scholar
HOEBEL, E. Adamson (1961) “Three Studies in African Law,” 13 Stanford Law Review 418.Google Scholar
HOEBEL, E. Adamson (1954) The Law of Primitive Man. Harvard University Press.CrossRefGoogle Scholar
KERR, A.J. (1956) “Some Recent Studies in African Law,” 15 African Studies 139.Google Scholar
MARCH, J.G. (1956) “Sociological Jurisprudence Revisited, a Review (more or less) of Max Gluckman,” 8 Stanford Law Review 499.Google Scholar
NADEL, Siegfried (1956) “Reason and Unreason in African Law,” 26 Africa 160.Google Scholar
PATON, George W. (1964) A Text-book of Jurisprudence. A Text-book of Jurisprudence: Clarendon Press.Google Scholar
POWELL, R. (1957) “The Unreasonableness of the Reasonable Man,” 10 Current Legal Problems 104.Google Scholar
SAWER, Geoffrey (1965) Law in Society. Law in Society: Clarendon Press.Google Scholar