No law of public delicts

How do ties of kinship, marriage and descent affect and influence quarrels and disputes, and the informal and formal procedures for attempting to settle them? Discuss with reference to at least two ethnographic examples The reaction of individuals to trouble varies greatly from one society to another. The ties of kinship, marriage and descent are a significant factor in affecting and influencing quarrels and disputes in simpler societies, and affects the procedures for settling them also. These types of societies have no legal sanctions, and matters of custom and convention come into play.

In this sense, some societies have no law, although all have customs which are supported by sanctions. For example, the penal sanction, whereby the community inflicts punishment on the guilty person. The waging of war is in some communities, as among the Australian hordes, an act of retaliation carried out by one group against another that is held responsible for an injury an individual has suffered. The procedure is regulated by a recognised body of customs which is equivalent to the international law of modern nations (Radcliffe-Brown 1979).

The killing of a man, whether accidental or intentional, is thought to be the same as an injury to his clan, local community or kindred, for which satisfaction or vengeance is required. The Yurok, who are food gatherers and hunters living in northern California in small villages with no political organisation, have got no regular procedure for dealing with offences against the community, and therefore no law of 'public delicts', and offences are regulated by custom once again.

After a feud or war, each side must pay for those who have been killed on the other side, so only the fact and amount of damage is considered. Once an indemnity for an injury has been accepted in this particular society, it is improper for the injured person to harbour any further resentment. Disputes can arise for numerous reasons, however, marital disputes are quite common, as in the following case.

The people of the Northern Mafia Island in Tanzania are Sunni Muslims, and although Tanzanian citizens, and therefore subject to the state laws, they also operate the Shafei canon of personal law (sheria in Swahili). There is a wide range of local custom and practice (mila or ada) which is not codified, but which is often recognised by the courts. The prescriptions of each, though recognised by Islamic law, sometimes vary, or even conflict. In his earlier work, Caplan stated it was "precisely the blend of sheria and mila" that constituted Swahili culture (1982:30).

Mila and sheria are used in disputes, especially marital disputes. In Islam on the Mafia Island, marriage is more a contract than a sacrament, and the groom is required to declare that he will pay a sum of money to the bride (mahari) at the wedding ceremony. In reality, the mahari is often only paid after the death of the husband or divorce of a wife, but technically, a wife has the right to claim it at any time (normally due to a strain in relations, and hopes of a divorce). However, I would like to point out, being a Muslim myself, that in modern day society in the U.

K, it is acceptable to marry for love, rather than it being arranged by parents, and it is not seen as a contract, therefore it is not a necessary requirement for money to be paid by the groom, and so no dispute over bride wealth tends to occur. Men have the right to divorce their wives by simply enunciating the formula (talaka) under Islamic law, although it is not complete until this has been done three times. No reason need be given by the husband, and he is permitted to recall her before her period of 'edda' (period of three months before she can remarry) has ended.

Although Islamic law does not recognize the legality of 'buying' a divorce, many wives prefer to pay their husbands off, or forfeit their mahari, rather than going to the trouble of seeking a divorce in court. For a woman to initiate divorce, it is rather more difficult. She might provoke him to agree by demanding her mahari, taking a lover, or leaving her husband. If it comes to Court, she can only divorce by invoking the sheria on grounds which Islamic law recognizes: primarily, failure to maintain her properly.

Within the village, there are three different forums for settling marital disputes. The first is that of kin, particularly elders, who may attend a baraza or meeting, where negotiation will take place, and hopefully reconciliation. The second kind of forum is that of the Village Council, which acts as a court of first instance, and hear cases in a formal or an informal way. A private meeting with the disputants and the Chairman may also occur, and the Council usually tries to meditate rather than adjudicate, as in the case of Juma and his wife Saidia in 1966, as described by Caplan (1995).

When Juma and his wife Saidia argued, and she asked him for a divorce, he refused her. She in turn, threatened to poison him. Juma later found a small bottle under the mat, and accused Saidia of poisoning him, even though the dresser at the clinic assured him there was no poison in it. In an attempt to discover the 'poison', he took his wife's sanitary cloth, wet it, and squeezed it out into the bottle, which his wife then saw, and accused him in front of the Chairman of the Village Council.

The Council called all the parties, including the dresser, and came to the decision that the wife's version of events was in fact, correct, especially as the husband had also taken her sanitary cloth and thrown it away, destroying vital evidence that could have been held against him. The dispute was attempted to be resolved by finding out why the couple had argued in the first place, and a large factor was due to the wife's bad relations with her husband's mother, who lived next door. It was decided they should move to live next to her husband's father instead.

In this case, the Council discovered the root of the problem, and suggested a way of resolving it, to which all parties agreed. However the Council also has the power to invoke sanctions, including physical punishment. For instance, punishing a husband who unjustly suspected his wife of unfaithfulness, such as was the case of Waziri, who got five beatings of a stick in order to get his wife, Mwastiti, back. This particular case, which also occurred in 1966, outlines a number of significant points; that women seldom submit easily in marital disagreements.

Mwastiti not only hit Waziri, but his mother too. Women can usually rely on the support of their kin in disputes, and if their husbands have behaved unreasonably, they can count on the Village Council's support too. Women also have alternative means of prosecuting arguments rather than taking them to a forum, such as singing songs containing offensive lyrics. These can be sung at rites of passage where everyone present knows to whom they refer to. The case of Waziri did not end with his punishment, as the women of the village pursued the argument through song.

In the case of two headsmen who were among the Ndembu in the Mukanza Village, the dispute over a death payment demonstrated several points. For instance, the way in which inter-village disputes help to promote intra-village unity, shown by the change of front shown by Chayangoma and Nyakalusa, who began by accusing Sandombu and Nyamuwang'a of witchcraft and abetting witchcraft, as this was thought to be the reason why Kalusa, a member of the Mukansa Village, was dead. The case throws a certain amount of light on the kinds of cleavages and ties between intermarrying villages.