“Like it or not — and many from Plato to Marx have disliked it — law is a central concept in human society; without it, indeed, there would be no society.” The truth of this statement from the jacket of Lloyd's The Idea of Law (1966) is implicitly borne out by the fact that, prior to the emergence of social science as a discipline, an empirically minded member of Western society, interested in the function and structure of his civilization, had to turn to the study of law as the only avenue to this knowledge. This was my experience (there was little of modern social science in Czechoslovakia in 1945), and that of many social scientists of the past. It is then no surprise that many anthropologists of the nineteenth century were either practicing lawyers or had a solid legal education, as, for example, Adolf Bastian, Lewis Henry Morgan, Sir Henry Sumner Maine, Johan Jakob Bachofen, and John Ferguson McLennan, to name a few. It is only interesting to note that Morgan's epochal Ancient Society (1877) was preceded by Maine's famous treatise Ancient Law (1861), which he wrote rather than one on ancient social structure, ancient religion, or some other cultural specialty.

The partnership between Karl Llewellyn and E. Adamson Hoebel is generally regarded as the most successful example of collaboration between a lawyer and an anthropologist in the annals of Anglo-American scholarship. In many respects it is unique. There have been individuals who have been trained in both disciplines; a number of legal scholars have made extensive use of anthropological literature; jurisprudence has regularly provided ethnographers of law with some of their main concepts and in recent years there has been an extensive, if disjointed, dialogue between representatives of the two disciplines. But, Llewellyn and Hoebel apart, in respect of research there has been little alacrity on the part of lawyers and anthropologists in responding to calls for interdisciplinary co-operation. Moreover, there are sometimes signs of tension in relationships between the two groups, although for the most part such tensions are hidden behind the curtain of academic diplomacy.

I first went, as a student, into the field (Zululand, 1938) without the benefit of a clear theory of investigation of customary law. Llewellyn and Hoebel's Cheyenne Way (1941) had not yet appeared; and years later, when I ended my field-work among some Rhodesian Shona tribes (1952), Hoebel's classic The Law of Primitive Man, which further elaborated the theoretical angle of this kind of inquiry (1954: Ch. 1-4) had yet to be published. I did not, however, course entirely haphazardly through this field. I was trained in (mainly African) ethnography and (Roman Dutch) law, had learnt to read the decisions and interpretations of (South African) European courts on “native law and custom” with some critical reservation, and had found in works like Schapera's Handbook of Tswana Law and Custom (1938) — probably still the best of its kind as regards Africa — a suitable, systematic frame for the pursuit of my inquiries and the exposition of my findings. Moreover, my home background had acquainted me with some of the work and aims of Dutch scholars on Indonesian adatlaw who, inspired by the great jurist Van Vollenhoven, then seemed to be leading the field with their efforts to arrange the rich variety of Indonesian folk law and practice into a coherent system with a distinctly indigenous imprint. Van Vollenhoven's early and repeated insistence upon the need “het oostersche oostersch te zien” (to perceive that which is oriental through oriental eyes), instead of seeking to fit Indonesian concepts into the familiar categories and analytical schemas of Western jurisprudence, had obvious application also to the African field.

E. Adamson Hoebel is justly honoured for the contribution he made to the study of tribal law by insisting on the recording and study of what he, with the late Karl N. Llewellyn, called “trouble-cases” in their innovative book, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (1941). The fruitfulness of this method was demonstrated also by Hoebel in another book, published at virtually the same time, on The Political Organization and Law-Ways of the Comanche Indians (1940), and argued further in his The Law of Primitive Man (1954). We may see the form of these studies as emerging partially from the method of case-law in Anglo-American jurisprudence, and here the influence of Llewellyn was probably important. But concentration on specific “cases”, “situations”, “incidents”, et alia, was also part of a general tendency in social science from the 1920's onwards: the increasing focus of analysis on untangling the structure of specific situations against the general social background was marked in political science and economics (see e.g., Devons, 1960, 1970) and sociology (see e.g., Gouldner, 1954). I have discussed the general development in social anthropology (Gluckman, 1959, 1965b, 1967).

“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.

In a previous essay I sought to make a distinction, not an original one, between two processes of dispute settlement: adjudication, and negotiations (Gulliver, 1969: 17). This was not intended as an absolute distinction, for clearly there are certain features common to both. But I was emphasizing what seems to be a key factor: the existence or absence of a third-party adjudicator. Whilst recognizing that this distinction is not acceptable to some scholars in the sociology of law, and that some would not wish to give such importance to that key factor and to other associated processual characteristics, it is nevertheless worthwhile to examine further the processes of negotiation. There are at least two reasons for this. First, anthropologists have given rather little attention to the description and analysis of negotiations in the variety of societies and cultures which is their concern. Secondly, processes of negotiations occur in all societies, including of course our own Western ones, and I believe that there are common patterns to them, cross-culturally, which merit attention.

In this essay, I propose to pay attention to Karo-Batak dispute settlement in the framework of regional manifestations of musjawarah, the Indonesian way of popular decision-making. To that end, I shall begin with a brief description of the Karo categories of kinship and affinity, followed by an exposé of the Karo institution of dispute settlement, called runggun adat as well as by the description of a specific case which I recorded in 1969, almost thirty years after it occurred.

In our highly centralized political system, with its advanced technology and communications apparatus, it is tempting to think that legal innovation can effect social change. Roscoe Pound perceived the law as a tool for social engineering (1965: 247–252). Some version of this idea is the current rationale for most legislation. Underlying the social engineering view is the assumption that social arrangements are susceptible to conscious human control, and that the instrument by means of which this control is to be achieved is the law. In such formulations “the law” is a short term for a very complex aggregation of principles, norms, ideas, rules, practices, and the activities of agencies of legislation, administration, adjudication and enforcement, backed by political power and legitimacy. The complex “law,” thus condensed into one term, is abstracted from the social context in which it exists, and is spoken of as if it were an entity capable of controlling that context. But the contrary can also be persuasively argued: that “it is society that controls law and not the reverse …” (Cochrane, 1971: 93–4). This semantic morass is partly the result of the multiplicity of referents of the terms “law” and “society.” But both ways of describing the state of affairs have the same implication for the sociological study of law. Law and the social context in which it operates must be inspected together. As Selznick has said, there is no longer any need “to argue the general interdependence of law and society” (1959: 115). Yet although everyone acknowledges that the enforceable rules stated and restated in legal institutions, in legislatures, courts and administrative agencies, also have a place in ordinary social life (Bohannan, 1965), that normal locus is where they are least studied. (See, for example, the emphasis on the study of official behavior in the recent Chambliss and Seidman, 1971, and on dispute settlement in much of the recent anthropological literature, cf., Moore, 1969. A significant exception is the emphasis on “law-in-society” in Friedman and Macaulay, 1969.)

Lawyers and anthropologists who are equally concerned with scientific and pragmatic questions have called for investigation of specific instances of legal change. Such men as Garland and Roth (1967), Healey (1964), Schiller (1965), Thompson (1968), and Twining (1964) have pointed out the need for concrete facts and figures for use in evaluating particular theories of and hypotheses about the process of legal change. In The Place of Customary Law in the National Legal Systems of East Africa, Professor Twining comments that “it would be of great value to have some intensive studies in depth of the introduction of the new courts system and the unified customary law” in Tanzania (1964: 51). He adds that “it is encouraging to hear that a private research project on similar lines is under way in Sukumaland” (1964: 59, fn. 42).

In the process of nation building, the new African nations are confronted with the need to establish legal systems which would perpetuate some selected traditions while, at the same time, are appropriate enough to solve the current untraditional problems. Under colonial rule. Western legal concepts dominated some areas of life while customary laws dominated the other spheres. Criminal law, the law of torts, contracts, administrative laws, taxation, company law, road traffic and copyright laws, were dominated by Western legal concepts. Customary legal concepts were operative in the fields of land tenure, marriage, divorce, succession and guardianship. The dual legal system served respectively the colonial and the native social order. With the demise of colonial rule, African legal systems now suffer from a schizophrenic posture, torn between tradition and modernity. The schizophrenia is more painful now that the new indigenous rulers, raised in the traditional ways, use modern, often colonial government structures to govern a population still tradition-directed. In this process of governing, the dictates of a modern state often clash with tradition. One such clash occurred in April 1968, when Kenya law makers used a modern legislature to pass a Limitation of Action Act (Kenya Gazette Supplement Acts, No. 34, 1968: 310), an act which proved unpopular despite the convincing arguments in its favor. This paper explores the conflicts between modernity and tradition engendered by the passage of the Act and exemplified by the effects of the Act on the Luo social structure, especially with regard to land ownership and status relationships. The question posed is: How appropriate is law as an instrument of social change, especially in a traditional cultural milieu? Can the nation state rely on law to change its tradition-oriented rural localities? Evidence elsewhere (Massell, 1968: 179) reveals that the law as an instrument of change often yields unintended and unpleasant consequences.

In recent years, there has been a proliferation of voluntary citizens' patrols (hereafter called citizens' patrols) in the urban areas of this country (Brown, 1969; Knopf, 1969; Marx and Archer, 1970 and in press). Many of these groups were shortlived responses to situations of social unrest and upheaval. They frequently were based on the premise that community residents could do more to prevent an area from burning to the ground than could the regular police, who were envisioned as an invading army. When the riot or disturbance was over, and the rationale of the citizens' patrol as an agent of social control became less obvious, such groups tended to disappear.