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“Government machinery in the earlier period was confined to the management of essential government functions, but when Ghazna came under Ghurid control, it was natural that the administrative institutions as developed by the Ghaznavids should be adopted. A certain number of features of the Seljuq administrative system were also taken over. […] The vizier was the head of the civil administration. The qa ̄d ̄ı al-quda ̄t (supreme judge) was the head of the judiciary, with numerous subordinate qa ̄d ̄ıs, including a qa ̄d ̄ı for the army.”
[1]
[1]: (Nizami 1999, 194) K A Nizami. The Ghurids. M S Asimov. C E Bosworth. eds. 1999. History of Civilizations of Central Asia. Volume IV. Part One. Motilal Banarsidass Publishers Private Limited. Delhi. |
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No distinction between executive and judicial branch (though the following information applies to the 19th centuries, it seems reasonable to infer continuity with previous centuries). "Tribunals were graded according to the political divisions within the kingdom. The lowest court was that of the ward head, who dealt with all cases concerning the lineage segment under his authority. The village head, with his ‘ministers’ and ward heads, constituted the next grade and also heard appeals from the courts of ward heads. The court of the ‘canton’ chief dealt with intervillage disputes. The court of a ‘provincial’ chief (palace minister) was concerned with disputes between the Fulbe, Yarse, Dioula, and others (see p. 160), and between these and the Mossi proper. He also examined appeals from the lower courts. Supreme judicial authority was vested in the king, although in practice he only gave judgement in criminal cases, such as homicide, and cases which proved too difficult for subordinate tribunals. He also constituted the only court qualified to try nakombse.//"These five types of tribunals were constituted on the same hierarchical pattern as the administration of the kingdom, with no distinction between the judiciary and the executive."
[1]
[1]: (Zahan 1960: 170-171) Seshat URL: https://www.zotero.org/groups/1051264/seshat_databank/collections/GWWIKDDM/items/TVIRPGXD/collection. |
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“Government machinery in the earlier period was confined to the management of essential government functions, but when Ghazna came under Ghurid control, it was natural that the administrative institutions as developed by the Ghaznavids should be adopted. A certain number of features of the Seljuq administrative system were also taken over. […] The vizier was the head of the civil administration. The qa ̄d ̄ı al-quda ̄t (supreme judge) was the head of the judiciary, with numerous subordinate qa ̄d ̄ıs, including a qa ̄d ̄ı for the army.”
[1]
[1]: (Nizami 1999, 194) K A Nizami. The Ghurids. M S Asimov. C E Bosworth. eds. 1999. History of Civilizations of Central Asia. Volume IV. Part One. Motilal Banarsidass Publishers Private Limited. Delhi. |
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Existence of judges (though unclear how professional they may have been): "During this period the adminstration was centered in the headquarters of the appanage or Hoshun (Ulus) prince, where there were special officials concerned with the conduct of military, administrative, and judicial functions.""
[1]
However, may not have existed before establishment of legal codes starting in late 16th century. Late 16th century: “Tümen Jasaghtu Khan tried to unify the country administratively and so included in his government not only Abtai, Altan and Khutughtai Sechen, but also other influential nobles from all the tümens and from the Oirat regions. He compiled a new code that was supposed to be based on Chinggis Khan’s Great Ya ̄sa ̄ or Jasaq (see Volume IV, Part One). Subsequently, Altan Khan, Abtai Khan and, most likely, several others followed his example and adopted their own laws and codes in their respective tümens. But only some of these have been preserved, whether wholly or partially. They were written in the old Mongol script, which had been borrowed from the Uighur, and adopted under Chinggis Khan as the official script of the Mongols. » [2] "Records of Law: The basic records of the law of this period were the Ancient Tsaadjin Bichik, the Mongol-Oirat Regulations of 1640, the Great Code of the Seven Khoshuns, and the Khalkha-Djirom of 1709. Of these records, the Mongot-Oirat Regulations of 1640 were the most important, being, for a time, the effective code in both Northern and Western Mongolia (Khalkha and Djungaria) After the disintegration of the alliance of the "Forty and Four," this code remained effective in Djungaria until the promulgation of the Chinese Code or Regulations of 1789 and among the Rusian Kalmucks until 1917 In Northern Mongolia the Mongol-Oirat Regulations of 1640 were replaced by the Great Code of the Seven Hoshuns and later by the Khalkha-Djirom, which also retained its effectiveness until 1789. The Khalkha-Djirom also continued to function among the herdsmen Shabinars of the Urga Gegen until superseded in 1925." [3] [1]: (Riasananovsky 1948: 172) Riasanovsky, V. A. 1948. Mongol Law—A Concise Historical Survey. Wash. L. Rev. & St. B.J. 166: 160-178. Seshat URL: https://www.zotero.org/groups/1051264/seshat_databank/items/9JCNB66X/library [2]: (Ishjamts 2003, 214) [3]: (Riasananovsky 1948: 170) Riasanovsky, V. A. 1948. Mongol Law—A Concise Historical Survey. Wash. L. Rev. & St. B.J. 166: 160-178. Seshat URL: https://www.zotero.org/groups/1051264/seshat_databank/items/9JCNB66X/library |
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Clan elders fulfilled judicial, but also ceremonial and other duties: ’The oldest kinsman in the clan, or the [unknown]iye-[unknown]usa , is always heaped with honors, if he is both rich and has never been put on trial. To him pertains the jurisdiction in trifling quarrels between kinsfolk. The following ceremonies serve to recall the religious functions that he (Ysekh) formerly exercised a. At the time of the spring festival, which bears a strictly clan character, they bring to him, first of all, a large wooden vessel ( Choron ) containing kumiss; he pronounces a prayer of thanks to the gods and then pours the kumiss upon the fire. b. At the time of the arrival of the betrothed at the bridegroom’s yurt, they take from the sleigh of the betrothed, and place upon a table in front of the fire place the boiled head of a horse, whose eyes are covered with butter, to whose ears are attached intestines filled with horse’s blood, and a wooden cup filled with butter. After this the betrothed enters the yurt, and stands, having first untied her girdle, on the right side of the komelok [RCH: i. e., the fireplace] where she is met by the oldest kinsman, whose place is sometimes taken nowadays by the most honored guest, who, kneeling, throws into the fire pieces of meat, blood and butter, and blesses the bride. For the completion of this ceremony, whose obvious object is to unite the bride with the bridegroom’s home, the oldest kinsman secures for his use the head, blood and butter brought into the yurt, and in addition the sum of one ruble.’
[1]
Clans also handled criminal cases and litigation in assemblies of elders: ’I shall end this survey of Yakut clan institutions and their self-government by a note about Yakut legal procedure. Strictly speaking the Yakut court is the assembly: the clan, nasleg, or ulus assembly, depending on the circumstances. These courts are under each other’s jurisdiction as courts of appeal. The Yakut enjoy waging law suits against each other and witnessing court proceedings. More important matters are always handed over to the assembly. At the assembly the wealthy people usually put in their comments, which are heard attentively, and although the final judgement is pronounced by the chairman of the assembly, he usually simply transmits a condensed form of the general opinion. The ligitants stand before the presiding clansmen with their heads bare, and, frequently nodding their heads and, while making the most important points, making deep bows from the waist, each in turn expound their case. Witnesses are called forth and interrogated on the spot, while unruly witnesses are brought by policemen. The judges always have to sit. In some localities it is customary for the judges to wear caps on their head.’
[2]
Criminal cases were transferred to Russian courts only after 1889: ’Nevertheless until very r ecently and even criminal cases such as beatings, personal injury, and thefts, even for a considerable amount, as long as a house was not broken into, were judged by the clan administration. Only from the year 1889, when an order came out to proceed against the trible authorities if they did not communicate such matters, have thefts begun to be referred to the Russian courts and judged according to Russian laws. For theft the Yakut usually punished wealthy people by a fine which was two or three times the value of the stolen article, depending on the circumstances. For beatings and personal injuries they sentenced the guilty party to support the injured party during his disablement or to pay him a lump sum. Now the guilty are put in prison, and to the great horror of their neighbors they usually leave out and out scoundrels. Such crimes as the violation of women, the breaking of agreements, fraud, and forgery were apparently unknown to the Yakut and went unpunished. But the violation of the wedding agreement was provided for by the kalym. At the present time most of the cases and statements of claim which come before the clan administrations concern the violation of boundary lines and various disputed lands.’
[3]
Clerical courts occasionally prosecuted polygamy prior to that date: ’Such polygamy, which is tolerated for the above reasons, and which has existed since ancient times and does not do any harm, had not become bad in the judgement of the Yakut, and no regulations for the abolition of this custom have been set up by the Yakut. However, since the Yakut adopted the Christian faith, and as they have become enlightened by strict surveillance and sometimes by indulgent reprimands from the eparchial priests, it has been gradually dying out, but nevertheless denunciations on this subject are made concerning people who have lawfully wedded wives but keep the others, and people who had several wives before conversion and married one of them in church without leaving the others, who were left at home with their children; in the case of such a denunciation the local authorities, on the grounds of the repugnance of the Christian religion for this custom, pressed formal charges, and the guilty parties were handed over to the clerical court as fornicators, and the cases were decided according to general state laws, which constituted and still constitute and extreme burden for the Yakut.’
[4]
Sieroszewski’s material on punishment seems to refer to Yakut assemblies rather than Russian courts: ’In 1867, according to official data, 1870 cases were judged in the upravas in the vicinity of Yakutsk: out of the total, 1855 concerned land disputes; in the Vilyuysk Okrug, out of 3786 cases, more than half had to do with land. Besides levying fines the Yakut also punish a guilty party by reprimanding him publicly, before the assembly, by sending him on some job, or putting him into solitary confinement. The latter is apparently a Russian innovation. Punishment with birch-rods was quite unknown to the Yakut in the past. Even now they have recourse to this very rarely and with great distaste. In the north they did not even know what this was like, and once, in the Kolymsk Ulus, when the assembly did not known what to do with one of its disobedient members and decided, on the advice of some Yakut who had come from the south, to flog him, they turned to me with questions: where should we beat him?, and do we have to lay him down and undress him or is that not permitted? (Kolymsk Ulus, Undzha, 1883). Usually the influence of the commune is quite sufficient to exert necessary compulsion. In the south, where the ties of the commune have weakened, we find disobedient people whose cattle are taken away as a punishment, or who are forced to obey. Many decisions of the clan assemblies astonished me by their strangeness, but once I looked closer into their life and made thorough inquiries into their motives I always found at the bottom a deep respect for the individual and a striving toward equality. Naturally I say nothing about those decisions which are demonstrably incorrect, and not in accord with custom and the conscience of the people, but which they have been forced to make because of the economic pressure of unscrupulous rich people or because of administrative arbitrariness.’
[5]
[1]: Kharuzin, Aleksai Nikolaevich 1898. “Juridicial Customs Of The Yakut”, 40p [2]: Sieroszewski, Wacław 1993. “Yakut: An Experiment In Ethnographic Research”, 797 [3]: Sieroszewski, Wacław 1993. “Yakut: An Experiment In Ethnographic Research”, 798 [4]: Samokvasov, D. I. A. 1876. “Collection Of Customary Law Of The Siberian Natives”, 14 [5]: Sieroszewski, Wacław 1993. “Yakut: An Experiment In Ethnographic Research”, 799 |
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“Also in 1717, the crown established the Real Factoría de Indias, an institution controlled by the intendente general of the navy on behalf of the king… The Factoría would also generate sufficient funds for paying the return voyages of its own ships without having to wait endlessly in the Indies, to pay the salaries of the judges of the Casa de Contratación and to constitute a source of loans for the crown in emergencies.”(Eissa-Barroso 2017: 136-137) Eissa-Barroso, Francisco A. 2017. The Spanish Monarchy and the Creation of the Viceroyalty of New Granada (1717–1739). Leiden: Brill. https://www.zotero.org/groups/1051264/seshat_databank/items/XNET89MW
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No distinction between executive and judicial branch (though the following information applies to the 19th centuries, it seems reasonable to infer continuity with previous centuries). "Tribunals were graded according to the political divisions within the kingdom. The lowest court was that of the ward head, who dealt with all cases concerning the lineage segment under his authority. The village head, with his ‘ministers’ and ward heads, constituted the next grade and also heard appeals from the courts of ward heads. The court of the ‘canton’ chief dealt with intervillage disputes. The court of a ‘provincial’ chief (palace minister) was concerned with disputes between the Fulbe, Yarse, Dioula, and others (see p. 160), and between these and the Mossi proper. He also examined appeals from the lower courts. Supreme judicial authority was vested in the king, although in practice he only gave judgement in criminal cases, such as homicide, and cases which proved too difficult for subordinate tribunals. He also constituted the only court qualified to try nakombse.//"These five types of tribunals were constituted on the same hierarchical pattern as the administration of the kingdom, with no distinction between the judiciary and the executive."
[1]
[1]: (Zahan 1960: 170-171) Seshat URL: https://www.zotero.org/groups/1051264/seshat_databank/collections/GWWIKDDM/items/TVIRPGXD/collection. |
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The Russian judicial system until 1864 was based on "Estates-of-the-realm" courts serving different social estates.
This system, largely intact since Catherine II’s reign, lacked modern professional judges. Judicial reforms started on November 20, 1864, under Tsar Alexander II, introducing a unified judicial system. Professional judges were nominated by the Minister of Justice and appointed by the Tsar, with specific qualifications required. Introduction of jury trials with professional judges in the judicial system marked a significant change. [1] [1]: Peter H. Solomon, ed., Reforming Justice in Russia, 1864-1996: Power, Culture, and the Limits of Legal Order (Milton Park, Abingdon, Oxon ; New York, NY: Routledge, 2015). Zotero link: 6F93JTAI |
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SCCS variable 89 ’Judiciary’ is coded as ’absent’. From the point of view of Iban adat, a longhouse community functions as a judicial unit: ’Although each of its component families is largely autonomous, the longhouse as a whole also functions as an important legal unit. In former times, every longhouse was, as we have noted, a politically sovereign community. Even now, the longhouse headman is looked upon as the chief guardian of community adat . He and other longhouse elders are expected to be well-versed in adat and to make known to their followers what the rules of adat require of them. Through informal meetings and judicial hearings they are also expected to enforce compliance with these rules and, following their stipulations, resolve disputes and redress compliants that arise within the community. In addition to this the longhouse as a whole is thought to possess a collective ritual status with regard to the spiritual world (Richards 1963:1-2).’
[1]
Village headmen double as judges in local matters: ’When the Tuai Rumah learns that a serious offence, such as adultery, has been committed, he must sacrifice a chicken at once. The significance of this sacrifice is that it calls public attention to the offence and indicates that it is now under formal juridical review, and that the parties involved are no longer permitted to resort to private vengeance or self-help. He must act at once, as any delay might result in bloodshed, in which case the Tuai Rumah himself is liable to be fined. Traditionally an injured husband or wife had the right to retaliate in the case of adultery provided the adulterous couple were found in flogrante delicto and the retaliation was carried out at once.’
[2]
But the Brooke administration established formal courts on district/polity level: ’By 1900, Brooke control of Sarawak was fairly well established. The government was gradually extending its efforts into such fields as agricultural research. As it established a system of courts and law, effort was made, whenever possible, to codify and preserve local customary law ( adat ). From this time on, the mainstream of Iban migration was much less violent, despite cultural ideals, and as we will see, much slower. However, government regulations notwithstanding, the migrations did not cease.’
[3]
We have assumed that the above-mentioned penal code was applied to Iban offenders as well. We have selected the same provisional date of transition.
[1]: Sandin, Benedict, and Clifford Sather 1980. “Iban Adat And Augury”, xxi [2]: Sandin, Benedict, and Clifford Sather 1980. “Iban Adat And Augury”, 4 [3]: Austin, Robert Frederi. 1978. “Iban Migration: Patterns Of Mobility And Employment In The 20Th Century”, 16 |
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“Among the most decisive changes implemented in 1867 was a new judicial system, which was the first piece of constitutional legislation that the parliament considered in October 1867. This bill provided for the strict separation of justice and administration on all levels of government and for the development of professional norms that would protect the independence of the judiciary. The law stipulated jury trials for all particularly serious crimes, and for all offenses against the press laws. All judicial officers were required to take an oath of allegiance to uphold the constitutional system. The law also guaranteed life tenure to judges and sought to protect them against political interference and harassment.”
[1]
[1]: (Boyer 2022: 99) Boyer, John W. 2022. Austria, 1867–1955. Oxford: Oxford University Press. https://www.zotero.org/groups/1051264/seshat_databank/items/CG3P4KKD |
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Clan elders fulfilled judicial, but also ceremonial and other duties: ’The oldest kinsman in the clan, or the [unknown]iye-[unknown]usa , is always heaped with honors, if he is both rich and has never been put on trial. To him pertains the jurisdiction in trifling quarrels between kinsfolk. The following ceremonies serve to recall the religious functions that he (Ysekh) formerly exercised a. At the time of the spring festival, which bears a strictly clan character, they bring to him, first of all, a large wooden vessel ( Choron ) containing kumiss; he pronounces a prayer of thanks to the gods and then pours the kumiss upon the fire. b. At the time of the arrival of the betrothed at the bridegroom’s yurt, they take from the sleigh of the betrothed, and place upon a table in front of the fire place the boiled head of a horse, whose eyes are covered with butter, to whose ears are attached intestines filled with horse’s blood, and a wooden cup filled with butter. After this the betrothed enters the yurt, and stands, having first untied her girdle, on the right side of the komelok [RCH: i. e., the fireplace] where she is met by the oldest kinsman, whose place is sometimes taken nowadays by the most honored guest, who, kneeling, throws into the fire pieces of meat, blood and butter, and blesses the bride. For the completion of this ceremony, whose obvious object is to unite the bride with the bridegroom’s home, the oldest kinsman secures for his use the head, blood and butter brought into the yurt, and in addition the sum of one ruble.’
[1]
Clans also handled criminal cases and litigation in assemblies of elders: ’I shall end this survey of Yakut clan institutions and their self-government by a note about Yakut legal procedure. Strictly speaking the Yakut court is the assembly: the clan, nasleg, or ulus assembly, depending on the circumstances. These courts are under each other’s jurisdiction as courts of appeal. The Yakut enjoy waging law suits against each other and witnessing court proceedings. More important matters are always handed over to the assembly. At the assembly the wealthy people usually put in their comments, which are heard attentively, and although the final judgement is pronounced by the chairman of the assembly, he usually simply transmits a condensed form of the general opinion. The ligitants stand before the presiding clansmen with their heads bare, and, frequently nodding their heads and, while making the most important points, making deep bows from the waist, each in turn expound their case. Witnesses are called forth and interrogated on the spot, while unruly witnesses are brought by policemen. The judges always have to sit. In some localities it is customary for the judges to wear caps on their head.’
[2]
Criminal cases were transferred to Russian courts only after 1889: ’Nevertheless until very r ecently and even criminal cases such as beatings, personal injury, and thefts, even for a considerable amount, as long as a house was not broken into, were judged by the clan administration. Only from the year 1889, when an order came out to proceed against the trible authorities if they did not communicate such matters, have thefts begun to be referred to the Russian courts and judged according to Russian laws. For theft the Yakut usually punished wealthy people by a fine which was two or three times the value of the stolen article, depending on the circumstances. For beatings and personal injuries they sentenced the guilty party to support the injured party during his disablement or to pay him a lump sum. Now the guilty are put in prison, and to the great horror of their neighbors they usually leave out and out scoundrels. Such crimes as the violation of women, the breaking of agreements, fraud, and forgery were apparently unknown to the Yakut and went unpunished. But the violation of the wedding agreement was provided for by the kalym. At the present time most of the cases and statements of claim which come before the clan administrations concern the violation of boundary lines and various disputed lands.’
[3]
Clerical courts occasionally prosecuted polygamy prior to that date: ’Such polygamy, which is tolerated for the above reasons, and which has existed since ancient times and does not do any harm, had not become bad in the judgement of the Yakut, and no regulations for the abolition of this custom have been set up by the Yakut. However, since the Yakut adopted the Christian faith, and as they have become enlightened by strict surveillance and sometimes by indulgent reprimands from the eparchial priests, it has been gradually dying out, but nevertheless denunciations on this subject are made concerning people who have lawfully wedded wives but keep the others, and people who had several wives before conversion and married one of them in church without leaving the others, who were left at home with their children; in the case of such a denunciation the local authorities, on the grounds of the repugnance of the Christian religion for this custom, pressed formal charges, and the guilty parties were handed over to the clerical court as fornicators, and the cases were decided according to general state laws, which constituted and still constitute and extreme burden for the Yakut.’
[4]
Sieroszewski’s material on punishment seems to refer to Yakut assemblies rather than Russian courts: ’In 1867, according to official data, 1870 cases were judged in the upravas in the vicinity of Yakutsk: out of the total, 1855 concerned land disputes; in the Vilyuysk Okrug, out of 3786 cases, more than half had to do with land. Besides levying fines the Yakut also punish a guilty party by reprimanding him publicly, before the assembly, by sending him on some job, or putting him into solitary confinement. The latter is apparently a Russian innovation. Punishment with birch-rods was quite unknown to the Yakut in the past. Even now they have recourse to this very rarely and with great distaste. In the north they did not even know what this was like, and once, in the Kolymsk Ulus, when the assembly did not known what to do with one of its disobedient members and decided, on the advice of some Yakut who had come from the south, to flog him, they turned to me with questions: where should we beat him?, and do we have to lay him down and undress him or is that not permitted? (Kolymsk Ulus, Undzha, 1883). Usually the influence of the commune is quite sufficient to exert necessary compulsion. In the south, where the ties of the commune have weakened, we find disobedient people whose cattle are taken away as a punishment, or who are forced to obey. Many decisions of the clan assemblies astonished me by their strangeness, but once I looked closer into their life and made thorough inquiries into their motives I always found at the bottom a deep respect for the individual and a striving toward equality. Naturally I say nothing about those decisions which are demonstrably incorrect, and not in accord with custom and the conscience of the people, but which they have been forced to make because of the economic pressure of unscrupulous rich people or because of administrative arbitrariness.’
[5]
[1]: Kharuzin, Aleksai Nikolaevich 1898. “Juridicial Customs Of The Yakut”, 40p [2]: Sieroszewski, Wacław 1993. “Yakut: An Experiment In Ethnographic Research”, 797 [3]: Sieroszewski, Wacław 1993. “Yakut: An Experiment In Ethnographic Research”, 798 [4]: Samokvasov, D. I. A. 1876. “Collection Of Customary Law Of The Siberian Natives”, 14 [5]: Sieroszewski, Wacław 1993. “Yakut: An Experiment In Ethnographic Research”, 799 |
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SCCS variable 89 ’Judiciary’ is coded as ’absent’. From the point of view of Iban adat, a longhouse community functions as a judicial unit: ’Although each of its component families is largely autonomous, the longhouse as a whole also functions as an important legal unit. In former times, every longhouse was, as we have noted, a politically sovereign community. Even now, the longhouse headman is looked upon as the chief guardian of community adat . He and other longhouse elders are expected to be well-versed in adat and to make known to their followers what the rules of adat require of them. Through informal meetings and judicial hearings they are also expected to enforce compliance with these rules and, following their stipulations, resolve disputes and redress compliants that arise within the community. In addition to this the longhouse as a whole is thought to possess a collective ritual status with regard to the spiritual world (Richards 1963:1-2).’
[1]
Village headmen double as judges in local matters: ’When the Tuai Rumah learns that a serious offence, such as adultery, has been committed, he must sacrifice a chicken at once. The significance of this sacrifice is that it calls public attention to the offence and indicates that it is now under formal juridical review, and that the parties involved are no longer permitted to resort to private vengeance or self-help. He must act at once, as any delay might result in bloodshed, in which case the Tuai Rumah himself is liable to be fined. Traditionally an injured husband or wife had the right to retaliate in the case of adultery provided the adulterous couple were found in flogrante delicto and the retaliation was carried out at once.’
[2]
But the Brooke administration established formal courts on district/polity level: ’By 1900, Brooke control of Sarawak was fairly well established. The government was gradually extending its efforts into such fields as agricultural research. As it established a system of courts and law, effort was made, whenever possible, to codify and preserve local customary law ( adat ). From this time on, the mainstream of Iban migration was much less violent, despite cultural ideals, and as we will see, much slower. However, government regulations notwithstanding, the migrations did not cease.’
[3]
We have assumed that the above-mentioned penal code was applied to Iban offenders as well. We have selected the same provisional date of transition.
[1]: Sandin, Benedict, and Clifford Sather 1980. “Iban Adat And Augury”, xxi [2]: Sandin, Benedict, and Clifford Sather 1980. “Iban Adat And Augury”, 4 [3]: Austin, Robert Frederi. 1978. “Iban Migration: Patterns Of Mobility And Employment In The 20Th Century”, 16 |
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Though full-time judges did not exists, officials would act as judges. [Perrie 2006, p. 363]
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Disputes between villagers were settled by respected elders rather than judges: ’In every Sheng Miao village there is a set of rules and regulations which are voluntarily observed. In case of violation the offense is quickly adjudged by the public and an elder is invited to execute the punishment. Before it is carried out, however, he would tell the accused in a solemn manner the myths of their ancestors. Also in the case of a serious dispute the elder would summon both parties together, and first tell them the story of their ancestors before settling the dispute. After a decision is rendered in this fashion both parties would show compliance and would not carry the case to the law courts. Although the mythology handed down from mouth to mouth does not have religious contents, it becomes a kind of prophecy to those people who hold everything pertaining to their ancestors in the highest respect. It is entirely due to this inherent respect for their ancestors that the ancestral myth is recounted before carrying out the punishment or at the time of settling a dispute. The idea is to employ the will of the ancestors to restrain the actions of their descendants. It is interesting to note that the mythology of the Sheng Miao, meant originally to inform posterity of the stories of their ancestors’ life, has also assumed the corrective and preventive functions of law.’
[1]
’These, of course, were only a few of the disputes which arose in the village or among the whole group of Cowrie Shell Miao. Most small matters were settled among themselves. Much of the old man’s time was taken up with such cases. Sometimes others of the village elders were called in for consultation. This was according to the Chinese Government system, though in effect this formed the village government, or council. If matters could not be settled by them, they were taken before the lien pao official, and, if necessary, to the hsien magistrate.’
[2]
Cases were occasionally decided by ordeal: ’The Miao are addicted to kuei and to litigation. Sometimes litigation may last a year, and the court, unable to decide the case, may ask both parties to eat blood. This serves as a deterrent. Yen Ju-yü in his Miao Fang-pei Lan says: “Those who enter the temple to drink blood move on their knees and bellies, not daring to look up; those who are in the wrong dare not drink it, but repent and yield.” In the course of our investigations in the Miao frontier area, the private secretary of the hsien government at Feng-huang, Mr. Wang Yüeh-yen told us: “The T ’ien Wang temple is the Supreme Court of the Miao area. When a Miao is not satisfied with the decision of the hsien government, then he is ordered to go to the T ’ien Wang temple to drink blood. Whatever the litigation, big or small, it receives immediate settlement.” It can be seen that the Miao’s awe of kuei is greater than their awe of the law.’
[3]
Formal courts presided over by Chinese judges were located in towns and handled disputes that could not be settled on the local level: ’Like Kweiyang, the hsien city of Lung-li was in an open plain, but a narrow one. The space between the mountains was sufficient for a walled town of one long street between the east and west gates and one or two on either side. There were fields outside the city walls. Its normal population was between three and four thousand, augmented during the war by the coming of some “companies” for the installation and repair of charcoal burners in motor lorries and the distillation of grain alcohol for fuel, an Army officers’ training school, and the engineers’ corps of the railway being built through the town from Kwangsi to Kweiyang. To it the people of the surrounding contryside, including at least three groups of Miao and the Chung-chia, went to market. It was also the seat of the hsien government and contained a middle school, postal and telegraph offices, and a cooperative bank, with all of which the non-Chinese, as well as the Chinese, had some dealings. A few of the more well-to-do families sent one of their boys to the middle school. Cases which could not be settled in the village or by the lien pao official, who was also a Chinese, were of necessity brought to the hsien court, as well as cases which involved both Miao and Chinese.’
[4]
’The Magpie Miao live in villages, occasionally compact but normally consisting of a cluster of separate hamlets. These are located on mountain slopes, usually far enough away from main transportation routes to be inaccessible and readily defensible. The Miao lack any political organization of their own, and are thoroughly integrated into the Chinese administrative system. The basic political, as well as economic and social unit, is the village. Villages are grouped into townships and divided into hamlets of about ten to twenty households each. The headmen of both the village and the hamlet are appointed by the chief of the township. The members of different villages or hamlets are bound principally by affinal ties. They may cooperate for the common good, but they lack any formal organization of an indigenous character. Disputes between members of the same hamlet are settled, if possible, within the hamlet. Those between members of different hamlets of the same village are adjudicated by a council composed of the village headman and the heads of the hamlets involved. If this council cannot effect a settlement, the litigants have a right to carry their dispute to the chief of the township or even to the Chinese court of the county.’
[5]
Given how Hmong villagers made use of the Chinese legal system, we have decided to code the variable ’present’.
[1]: Che-lin, Wu, Chen Kuo-chün, and Lien-en Tsao 1942. “Studies Of Miao-I Societies In Kweichow", 76 [2]: Mickey, Margaret Portia 1947. “Cowrie Shell Miao Of Kweichow”, 45a [3]: Ling, Shun-sheng, Yifu Ruey, and Lien-en Tsao 1947. “Report On An Investigation Of The Miao Of Western Hunan”, 228 [4]: Mickey, Margaret Portia 1947. “Cowrie Shell Miao Of Kweichow”, 40b [5]: Rui, Yifu 1960. “Magpie Miao Of Southern Szechuan”, 145 |
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Specialist judges require a culture of high degree of literacy not present at this time.
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The following quote suggests that judicial functions were the province of the Brahmanic caste more broadly, rather than professional specialists. "This inscription is significant as it shows the judicial powers enjoyed by the brahmanas. The inscript assembled to fix a decision (sthiti) for a crime committed in the village. Sircar suggest that the term Sthiti meant ’a fixed decision, ordnance or a decree’".
[1]
[1]: (Yadav 2011: 365) Yadav, D. 2011. ASPECTS OF RURAL SETTLEMENT UNDER THE GAHAAVALA DYNASTY: C. 11 TH CENTURY CE TO 13 TH CENTURY CE (AN INSCRIPTIONAL ANALYSIS). Proceedings of the Indian History Congress , 2011, Vol. 72, PART-I (2011), pp. 360-367. Seshat URL: https://www.zotero.org/groups/1051264/seshat_databank/items/F8STV588/library |
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"While the necessary reliance on archaeological evidence has ensured that many aspects of Harappan civilization, such as economic activities, settlements, industry, and biological anthropology, have been investigated as well as or better than those of literate civilizations, the absence of intelligible documentary material is a major handicap to understanding Harappan social and political organization and has put some aspects of Harappan life, such as the law, quite beyond cognizance."
[1]
[1]: (McIntosh 2008: 245) Jane McIntosh. 2008. The Ancient Indus Valley. Santa Barbara; Denver; Oxford: ABC-CLIO. |
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No specialist judges, as illage headmen and lineage elders exercise judicial authority. SCCS variable 89 ’Judiciary’ is coded as ’Appointed by executive’. Village headmen and lineage elders exercise judicial authority on the local level: ‘Among the Garos most disputes arise over the issues of property, inheritance, and domestic quarrels within the family. Such problems are to a large extent settled by the MAHARI (lineage) of the offended and the offender. A new situation develops when someone’s cattle cause damage to another’s crops. Under such situation the NOKMA (village headman) acts as an intermediary only. If he fails to settle the dispute, the matter can go to the civil court of the district council.’
[1]
‘The judicial authority of the Garo is based on the institution of Nokma. Nokma looks after the village land as well as members of the village. The village judiciary system started with the a’king Nokma or Songni Nokma and the clan elders of that village. Nokma took the leadership in all village activities and since he was supposed to be a warrior, he was not expected to hesitate to punish the guilty if he suspected a foul play. In the past the Garo principle was ‘blood for blood, head for head’.’
[2]
If a dispute cannot be resolved on village level, the case is transferred to higher-level courts an authorities: ‘Many of the disputes of the Garos decided in their village Panchayats. When a man has some complaints against another he reports them to the Nokma or the village-head. If the nature of the complaints is simple, the Nokma in a meeting of the few leading persons of the village, decides the dispute; but if the nature of the complaints is complicated and not easy of solution the Nokma reports the matter to the Laskar. The Laskar is a very important and influential man in the Garo Hills District. The hills areas are divided into some elekas and each of such elekas is placed under a Laskar for convenient collection of the house tax as well as for deciding the disputes of small nature locally. The Laskar need not essentially be a literate man, worldly prudence is enough for the management of his eleka. In practice a Laskar wields immense influence in his eleka.’
[3]
The highest judicial authorities operate as judges on the district level: ‘The Judicial Officer appointed to preside over the District Council Court, exercises original jurisdiction to try cases and suits and exercises such powers as defined in Chapter III of the Code of the Criminal Procedure, 1898, and such other powers conferred by or under these rules, as he is invested with by the Executive Member of the District Council with the approval of the Governor for the disposal of the case and suits arising within the territorial jurisdiction of the said court.’
[4]
They may be assited by appointed elders: ‘The District Council may, whenever it deems necessary, also nominate two or more local elders well conversant with the tribal usages and customary laws, to sit with the judicial officer of the court as a bench and may, by order, invest such bench with any of the powers conferred or conferrable by or under the rules for the trial of suits and cases based on the tribal usages and the tribal customary laws only.’
[5]
[1]: Roy, Sankar Kumar: eHRAF Cultural Summary for the Garo [2]: Marak, Kumie R. 1997. “Traditions And Modernity In Matrilineal Tribal Society”, 43 [3]: Choudhury, Bhupendranath 1958. “Some Cultural And Linguistic Aspects Of The Garos”, 40 [4]: Marak, Kumie R. 1997. “Traditions And Modernity In Matrilineal Tribal Society”, 69 [5]: Marak, Kumie R. 1997. “Traditions And Modernity In Matrilineal Tribal Society”, 61 |
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Qadi.
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Legal cases in Norman England were presided over by sheriffs, barons, or bishops, who combined judicial responsibilities with other administrative, military, or ecclesiastical duties. They were not full-time specialists dedicated exclusively to judging cases. [Carpenter 2003]
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Legal proceedings in East Francia were primarily conducted by local lords, counts, or dukes, who acted as both administrators and judges [Reuter 1991]
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Chiefs were the judges.
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Not enough data, though it seems to reasonable infer absence.
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This may be more accurate toward the end of the Funan period, but worth noting: "Before a case reached the king, it might go through various lower courts; inscriptions frequently mention officials who appear to have functions connected with courts of law. There is no way of measuring the extent of discrimination and corruption in the administration of ustice. The ideal of fiarness to all was certainly recognized; one judge, for example, is declared to have been appointed on the strength of his impartiality.
[1]
[1]: (Mabbett and Changler 1995, p. 168) |
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"The Legalists were the chief proponents of the use of a penal code to control the people. During the Warring States period, the sovereigns of the various states had little use for morals and rites. They were more concerned with building strong states, strengthening their armies, and enlarging their territories. This can only be realized by being able to keep a submissive people. The Legalists proved more useful for their political aspirations, as they exerted a major influence on Chinese traditional law and legal institutions, which were set up under their direction."
[1]
[1]: (Fu 1993, 107) Fu, Zhengyuan. 1993. Autocratic Tradition and Chinese Politics. Cambridge University Press. |
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SCCS variable 89 ’Judiciary’ is coded as ‘1’ or ’absent’. Kinsmen of the dead, not judges, decided on the course of action taken: ’Feuding or warfare is endemic among the Jivaro. Because of the retaliatory nature of legal sanctions in the society, the application of avenging action frequently initiates long and drawn out hostilities between two groups of kinsmen. This pattern of repeated application of sanctions by two families against one another is a dominant preoccupation especially among the interior Jivaro. These feuds may be formally ended by payment to the deceased’s relatives, or when one of the eldest men on one side is killed, or when each group of kinsmen has lost a man.’
[1]
’After this idea took hold, they travelled upriver to the settlement of Bupátä’s brother Ungúmï, a húndach, or old one (although he is only about 45 years old), to seek his counsel. Then, Santü journeyed further north into Ecuador to converse with Mukwíngü, the mother’s brother of Bupátä and Ungúmï. Such counsel, as I have indicated, forms an important part of the protocol that characterizes the pattern of Achuarä hostilities. Not every death attributed to sorcery is avenged, especially in the case of young children. But, once a homicide is committed in retaliation for perceived sorcery-related deaths, it inevitably calls forth a revenge raid sometime in the future on the part of close relatives-brothers-in-law or sons-in-law, usually-of the victims. Should their retaliation prove successful, close relatives of the person whose death initiated the feud also become obligated to avenge the more recent killing. Each successive death draws greater numbers of relatives into the feud on each side, and more and more lives are placed in jeopardy.’
[2]
[1]: Beierle, John: eHRAF Cultural Summary for the Jivaro [2]: Bennett Ross, Jane 1984. “Effects Of Contact On Revenge Hostilities Among The Achuará Jívaro”, 102 |
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Chief judges.
[1]
"Under the Mamluks the state appointed judges, legal administrators, professors, Sufi shaykhs, prayer leaders, and other Muslim officials."
[2]
"In 1263, Sultan Baybars (1260-77) appointed a chief qadi for each of the four major schools of law, a chief shaykh (master, teacher) for the Sufis, and a syndic for the corporation of descendants of the Prophet (naqib al-ashraf). Under the Mamluks the state appointed judges, legal administrators, professors, Sufi shaykhs, prayer leaders and other Muslim officials." [3] [1]: (Lapidus 2012, 248) [2]: (Lapidus 2002, 294) [3]: (Lapidus 2012, 249) |
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Judges present in Europe and the colonies. “In 1511, a tribunal of independent royal judges was constituted in the colony of Espanola to try cases appealed from the town magistrates and the governor.”
[1]
[2]
[1]: (Cunningham 1919, 25.) Cunningham, Charles Henry. 1919. The Audiencia in the Spanish Colonies As illustrated by the Audiencia of Manila (1583-1800). Berkeley, California: University of California Press. https://www.zotero.org/groups/seshat_databank/items/itemKey/CM5NJJRR) [2]: (Casey 2002, 88) Casey, James. 2002. Early Modern Spain: A Social History. New York: Routledge. https://www.zotero.org/groups/seshat_databank/items/itemKey/2SNTRSWT |
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Existence of judges (though unclear how professional they may have been): "During this period the adminstration was centered in the headquarters of the appanage or Hoshun (Ulus) prince, where there were special officials concerned with the conduct of military, administrative, and judicial functions.""
[1]
However, may not have existed before establishment of legal codes starting in late 16th century. Late 16th century: “Tümen Jasaghtu Khan tried to unify the country administratively and so included in his government not only Abtai, Altan and Khutughtai Sechen, but also other influential nobles from all the tümens and from the Oirat regions. He compiled a new code that was supposed to be based on Chinggis Khan’s Great Ya ̄sa ̄ or Jasaq (see Volume IV, Part One). Subsequently, Altan Khan, Abtai Khan and, most likely, several others followed his example and adopted their own laws and codes in their respective tümens. But only some of these have been preserved, whether wholly or partially. They were written in the old Mongol script, which had been borrowed from the Uighur, and adopted under Chinggis Khan as the official script of the Mongols. » [2] "Records of Law: The basic records of the law of this period were the Ancient Tsaadjin Bichik, the Mongol-Oirat Regulations of 1640, the Great Code of the Seven Khoshuns, and the Khalkha-Djirom of 1709. Of these records, the Mongot-Oirat Regulations of 1640 were the most important, being, for a time, the effective code in both Northern and Western Mongolia (Khalkha and Djungaria) After the disintegration of the alliance of the "Forty and Four," this code remained effective in Djungaria until the promulgation of the Chinese Code or Regulations of 1789 and among the Rusian Kalmucks until 1917 In Northern Mongolia the Mongol-Oirat Regulations of 1640 were replaced by the Great Code of the Seven Hoshuns and later by the Khalkha-Djirom, which also retained its effectiveness until 1789. The Khalkha-Djirom also continued to function among the herdsmen Shabinars of the Urga Gegen until superseded in 1925." [3] [1]: (Riasananovsky 1948: 172) Riasanovsky, V. A. 1948. Mongol Law—A Concise Historical Survey. Wash. L. Rev. & St. B.J. 166: 160-178. Seshat URL: https://www.zotero.org/groups/1051264/seshat_databank/items/9JCNB66X/library [2]: (Ishjamts 2003, 214) [3]: (Riasananovsky 1948: 170) Riasanovsky, V. A. 1948. Mongol Law—A Concise Historical Survey. Wash. L. Rev. & St. B.J. 166: 160-178. Seshat URL: https://www.zotero.org/groups/1051264/seshat_databank/items/9JCNB66X/library |
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King highest judge, vizier second highest judge. However, law usually administered at local level.
[1]
JGM: Note the important text: "The Duties of the Vizier" that lays out the chief judges responsibilities, and provides the formal organization of the legal system of the New Kingdom. See G.P.F. Van Den Boorn,The Duties of the Vizier:Civil Administration in the Early New Kingdom. Kegan Paul, 1988. [1]: (Brewer and Teeter 1999, 73) |
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The council of elders, the Gerousia, whose members were chosen among the best Kosmoi, had legislative and juridical authority.
[1]
[2]
Officials appointed by the state, they are called dikastai (δικαστές), acted as judges; they deal mostly with cases involving inheritances and pledges. Special judges, the hetaireai, deal with matters of tribal law and custom, others, called orfanodikastes (ορφανοδικαστές) were appointed to supervise the affairs of orphans or minors, the ksenios Kosmos (ξένιος κόσμος) had important duties connected with the foreigners living in the city, and finally the cosmos hiarorgos (ιαροργός) was responsible for matters related to the religion.
[1]: Willetts, R. F. 1965. Ancient Crete. A Social History, London and Torondo, 77 [2]: Chaniotis, A. 1897. "Κλασική και Ελληνιστική Κρήτη," in Panagiotakis, N. (ed.), Κρήτη: Ιστορία και Πολιτισμός, Heraklion, 203. |
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Himyari, an Arab author, mentions that Fath bn al-Ala was the chief judge of Crete while another author and jurist, Ibn al-Faradi, mention a famous jurist from Crete, Marwan bn.
[1]
[1]: Christides, B. The Conquest of Crete by Arabs (ca. 824). A Turning Point in the Struggle Between Byzantium and Islam, Athens, 115. |
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inferred from discussion in sources of development/introduction in later periods
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Presumably the late Abbasids employed qadi (judge).
Late Abbasid period: "the religious establishment - that is, the ulama - were responsible for education, administering the awqaf, and the administration of justice". [1] [1]: (Elbendary 2015, 40) Elbendary, Amina. 2015. Crowds and Sultans: Urban Protest in Late Medieval Egypt and Syria. The American University in Cairo Press. |
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inferred absent Middle Kingdom. disagreement Old Kingdom.
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inferred absent or unknown. In temples. Were these judges priests? If so will need to code absent because we are coding judges as a specialized position.
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No specialised judges can be confirmed for the Middle Kingdom.
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SCCS variable 89 ’Judiciary’ is coded as ‘1’ or ’absent’. Writing in the colonial period, Bollig describes the resolution of disputes in public meetings: ’The chief does all these duties in the kobu[unknown], the public meeting. Men as well as women are invited to this kobu[unknown]. All the participants are called together by the blowing of the large shell from the chief’s house. The kobu[unknown] takes place in the udd, the large men’s house. All the dealings of the tribe are discussed in it, marital matters, land matters, quarrels, in short, all the linen, whether clean or dirty, is spread out before all eyes. Everybody is allowed to talk and present his complaints. Of course there is no lack of amusing scenes too. Sometimes the people become so excited that the parties insult each other, grab each other, and come to blows, so that the meeting has to be dissolved. The following remark was made in a kobu[unknown] which I attended: “He is a bad fellow because he stole my log.” The person insulted in such a manner jumped up angrily and defended himself so convincingly that the accuser let his head sink and replied dejectedly: “ Kinisou, mei bu[unknown]me rem, excuse me, you are right.” In another kobu[unknown] a subchief said to the head chief: “I do not like you as head chief, for you put some into paradise, others into hell.” With this plain allusion to his partiality, the head chief became very excited, while the audience laughed. From the same chief came the familiar quotation: “ siwilin ni efot, ni efot; siwilim mas eu, mas eu, ina Lamalamen Moses, /116/ tooth for tooth, eye for eye, that is the religion of Moses.” As one sees, the chief concerned had not read the Protestant Bible in vain and knew very well how to cloak his thirst for revenge very nicely. Things go along quite pleasantly in the kobu[unknown] of the Truk people. Each one chatters as long and as [Page 127] much as he likes. If he uses sharp, objectionable expressions, wiser ones will certainly call out to him: “ a emuen, it is enough.” Some smoke, some eat. One sits on the floor, another one on an upturned bowl, or anywhere else. Here and there one also sees some who are asleep, tired from listening for a long time. In short it goes along in true Kanaka fashion, and the result of the kobu[unknown], usually lasting for hours, is “much ado about nothing.” The matter at issue remains as it was, or it has become even more complicated. The government has often tried to give the kobu[unknown] a more serious air, but quite in vain. The main person at the kobu[unknown] is the chief, who makes the decision in the individual cases. Formerly his decision was absolutely decisive for all questions. In more recent times appeal to a higher authority, to the head chief and the government, has been possible. The government has also pruned the jurisdiction of the chief. Some things are reserved solely for the head chief, some solely for the government representative. During the kobu[unknown], the chief is surrounded by his relatives and advisors who watch over him. If he wants to say something that does not suit them, they call out to him: “ a niku[unknown], that is too much.”’
[1]
[1]: Bollig, Laurentius 1927. “Inhabitants Of The Truk Islands: Religion, Life And A Short Grammar Of A Micronesian People”, 126 |
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Councillors assisted rulers in judicial matters: ’But as a man attracts the favourable attention of the observant ones of his tribe, as he more and more impresses the people by his ability in their public gatherings, by the soundness of his opinion, by the depth of his knowledge of the customary laws and traditions, by his skill in public debate, by his keen interest in public affairs, by his bravery or warlike qualities, or by some other qualifications, he acquires public influence, and is accepted, in a greater or less degree, as a public man, representative of a portion of the community. Success in trade, or other personal attributes, are likewise qualifications for this post. The position of such a person is definitely confirmed when the head ruler with his council invites him to be a councillor. Attending an Omanhene or Ohene are always to be found some councillors, who assist him in hearing and determining lawsuits and administering justice. In the town of the [Page 11] Omanhene these men perform many of the duties of officers, who in European countries are known as ministers of state. It is worthy of note that, as a general rule, a Tufuhene is not a member of the Council (Begwa) of the Ohene or Omanhene.’
[1]
’The several households of each town are divided into wards, which are under the control of several heads of families; an elder of these is called Penin (pl. Mpeninfu). A council, composed of Mpeninfu and other representative men, as well as Abremponfu * and the Ohene, governs the town. This council is the tribunal that settles all law-suits and regulates the internal organization of the community and enacts laws. There are other persons elected to see after local sanitary matters, such as the cleaning of the country lanes, footpaths, and market roads. They summon before the council persons breaking sanitary regulations, as well as those committing any serious breach of the public peace.’
[2]
The councillors were not legal professionals, but rather men of standing in the community: ’The council is composed of (1) the head ruler; (2) worthy old men of intelligence and experience, not necessarily men called chiefs; (3) men of position and wealth, generally heads of families and stoolholders; (4) representative men invited by the head ruler and his council. The Tufuhene is not generally a member of this council. In the coast towns a person severs his connection with his company and relinquishes any office he holds when he becomes a councillor. A councillor holds his office for life, but, should he be guilty of treason or receiving bribes to pervert justice, he can be suspended or dismissed. Councillors with the ruler may hear and decide cases, and advise on the general administration of public affairs.’
[3]
There were civil and military tribunals: ’For the determination of plaints there are two kinds of tribunals-military, that is, Asafu, and civil. No case is tried in default of appearance. These Asafu tribunals exist principally in coast towns. Each company has the right to determine cases, especially on matters of discipline and charges of misconduct and intrigue between a member of one company and a married woman of the same or other company. Bosman and other writers call this tribunal the Manceros, evidently a corruption of the Fanti word Mbrantsé, meaning “young men.” The court summarily deals with cases, which the civil or ordinary tribunal is unable to hear, through the refusal of one of the parties to attend the trial or any adjournment thereof. The proceedings are somewhat like a drumhead court-martial. An Asafu trial is so expensive to the litigants that no one appeals to such tribunal if he can possibly avoid doing so. The expression used by the complainant or plaintiff when applying for summons runs somewhat thus: “Dompo or Damfu (whatever may be the name of the other party) [Page 32] has wronged me. I sell, or hand him to you; deal with him accordingly.”’
[4]
The Ohene presided over the tribunal, assisted also by a ’linguist’, an official versed in what Sarbah walls customary law: ’The Ohene, presiding over the tribunal, as well as the several councillors, express themselves through the linguist. The decision in every trial is pronounced by him. He goes with the president and councillors when they retire to deliberate on the case before them, and he delivers the judgment of the court. A linguist occupies a most confidential position, and the head linguist is usually one of the principal advisers of the ruler. In ordinary cases the [Page 33] ruler and he alone can lawfully constitute a court and decide cases. It is his duty to be conversant with the history of his country and the family history of the stool. At the yearly observance of the stool custom he takes a prominent part; moreover, he should be learned in the customary law, command a large stock of parables and apt phrases, be a man of ready and effective speech, and not unacquainted with the arts of diplomacy. In former years public speakers, for such are linguists, were not considered competent until they had been trained in the courts of the Asanti king and certain principal towns in Fantiland, which the non-Fanti inhabitants called the land of history, the seat of poetry, and the abode of enlightenment.’
[5]
[1]: Sarbah, John Mensah 1968. “Fanti National Constitution: A Short Treatise On The Constitution And Government Of The Fanti, Asanti, And Other Akan Tribes Of West Africa Together With A Brief Account Of The Discovery Of The Gold Coast By Portuguese Navigators, A Short Narration Of Early English Voyages, And A Study Of The Rise Of British Gold Coast Jurisdiction, Etc., Etc.”, 10p [2]: Sarbah, John Mensah 1968. “Fanti National Constitution: A Short Treatise On The Constitution And Government Of The Fanti, Asanti, And Other Akan Tribes Of West Africa Together With A Brief Account Of The Discovery Of The Gold Coast By Portuguese Navigators, A Short Narration Of Early English Voyages, And A Study Of The Rise Of British Gold Coast Jurisdiction, Etc., Etc.”, 26 [3]: Sarbah, John Mensah 1968. “Fanti National Constitution: A Short Treatise On The Constitution And Government Of The Fanti, Asanti, And Other Akan Tribes Of West Africa Together With A Brief Account Of The Discovery Of The Gold Coast By Portuguese Navigators, A Short Narration Of Early English Voyages, And A Study Of The Rise Of British Gold Coast Jurisdiction, Etc., Etc.”, 32 [4]: Sarbah, John Mensah 1968. “Fanti National Constitution: A Short Treatise On The Constitution And Government Of The Fanti, Asanti, And Other Akan Tribes Of West Africa Together With A Brief Account Of The Discovery Of The Gold Coast By Portuguese Navigators, A Short Narration Of Early English Voyages, And A Study Of The Rise Of British Gold Coast Jurisdiction, Etc., Etc.”, 31p [5]: Sarbah, John Mensah 1968. “Fanti National Constitution: A Short Treatise On The Constitution And Government Of The Fanti, Asanti, And Other Akan Tribes Of West Africa Together With A Brief Account Of The Discovery Of The Gold Coast By Portuguese Navigators, A Short Narration Of Early English Voyages, And A Study Of The Rise Of British Gold Coast Jurisdiction, Etc., Etc.”, 32p |
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The council of elders, the Gerousia, whose members were chosen among the best Kosmoi, had legislative and juridical authority.
[1]
[2]
Officials appointed by the state, they are called dikastai (δικαστές), acted as judges; they deal mostly with cases involving inheritances and pledges. Special judges, the hetaireai, deal with matters of tribal law and custom, others, called orfanodikastes (ορφανοδικαστές) were appointed to supervise the affairs of orphans or minors, the ksenios cosmos (ξένιος κόσμος) had important duties connected with the foreigners living in the city, and finally the cosmos hiarorgos (ιαροργός) was responsible for matters related to the religion.
Crete owes much of its fame in Classical Greece to its internal organization and its cultivation of the laws. This prestige is partly due to mythological traditions and Minoan memories and survivals. The laws that, according to legend, Minos received every nine years, and the figure of Rhadamanthys the just judge, bear witness to a dim recollection of an earlier rule of law. From as early as the 7th century BCE, Crete had engaged in important legislative innovations, some of which can be reconstructed from the later laws of Gortyn. The famous legal inscription of Gortyn is not an isolated example. Fragments of laws dating from the 7th to the mid-5th century survive in many cities. The reasons for this legislative activity - an activity that includes both the recording of older laws and the introduction of new ones - were the major problems concerning land ownership, inheritance, small landowners’ dependence on creditors as a result of the gradual spread of a monetary economy, and the presence of individuals who lacked political rights but engaged in important financial activities as traders, craftsmen and freelance workers. There was very little interest in reform of the existing regime: the handful of laws on civic issues were intended to limit the arbitrary actions and immunity of the Kosmoi. [1]: Willetts, R. F. 1965. Ancient Crete. A Social History, London and Torondo, 77 [2]: Chaniotis, A. 1897. "Κλασική και Ελληνιστική Κρήτη," in Panagiotakis, N. (ed.), Κρήτη: Ιστορία και Πολιτισμός, Heraklion, 203. |
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Note the above, in which a lawsuit is judged by the king himself rather than a dedicated judge.
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Inferred from the following quotes, which broadly refer to Indian polities under early Muslim rule.
The king was the highest judge, although other judges and magistrates also operated in the state. There were different courts of law (primarily for Muslim and non-Muslim law codes) which needed separate judges. [1] "the sultan appointed judges to dispense justice and also acted as a court of appeal to hear cases against the decisions taken by judges." [2] reference of the Chief Qazi of Mansura in the writing of the contemporaneous Abdul Hassan. [3] [1]: Habibullah, A. B. M. (1961). The foundation of Muslim rule in India. Central Book Depot, pp 271-4. [2]: (Ahmed 2011, 97) Ahmed, Farooqui Salma. 2011. A Comprehensive History of Medieval India: Twelfth to the Mid-Eighteenth Century. Pearson Education India. [3]: Panhwar, M. H. "Chronological Dictionary of Sind, (Karachi, 1983) pp. 192 |
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There was no legislative body and no division between executive and judiciary: administrative officials of all levels also held judicial authority. That the profession of a judge did not exist-in contrast to contemporary Babylonia-is also shown by the fact that the word dayānu, “judge, ” was not used for human beings in Neo-Assyrian.” No court building.
[1]
[1]: (Westbrook et al. 2003, 883, 886, 890) |
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’Presiding as a judge was only a part time occupation. Godordsmen (chieftains) and the lords of the territorial lordships could act as arbitrators and the Lögrétta, where they all had a seat, may sometimes have acted as a court of law. However, jurors would normally have been farmers nominated by the godordsmen, not legal professionals.’
[1]
Icelandic assemblies relied on a legal code but established no formal institutions for the purpose of law enforcement: ’Iceland had established systems of laws, assemblies, and judicial institutions to serve in resolving conflict but no centralized power to enforce order or verdicts. Everyone was legally required to belong to a farming household and individual farmers had authority over and responsibility for their households. Disputes, including injuries and killings, were settled through arbitration. The offending party paid compensation to the offended party. In more extreme cases the offending individual was outlawed, either for three years or permanently, and was official cast out of society and any right to compensation. Prosecution and collection of settlements was up to private individuals. Conflicts often overstepped institutional boundaries into blood feuds. Feuds could escalate well beyond the immediate individuals or households until the involved whole social networks. With the rise of chiefly power and territoriality in the twelfth and thirteenth centuries regional conflicts developed that eventually encompassed t he entire island. The decades of civil strife ended in 1262 A.D. when Iceland came under the authority of the Norwegian crown.’
[2]
Enforcement of settlements was the responsibility of the individual and therefore highly dependent on social and political power: ’Turner (1971) recognized that there was no state in medieval Iceland, and that while there was law, it did not count for much. Force was decisive. Miller asks under what circumstances people settled disputes by arbitration rather than legal judgments or violent self-help (1984). He describes the system of assemblies, courts, quarters, chieftains and followers, and points out that the sanction behind all legal judgments was feud or the fear of it. There were no corporate kin groups, and in any situation the kin group “had to be actively [Page 234] assembled,” its composition reflecting the “popularity, wealth, and persuasive skills of the organizer” and the seriousness of the wrong to be remedied (p. 99). Kin bonds were stronger closer to home, but this pattern was offset by attendance at the general assembly, where relatives tended to each others’ business.’
[3]
’One of the peculiarities of early Iceland was the lack of formal state institutions. The legislature, extensive law code, and judicial system of local and higher courts left prosecution and the enforcement of settlements in the hands of individuals. From an early date, the country was divided into Quarters. Each quarter constituted a broad community with three assemblies (ÞINGS), with the exception of the Northern Quarter that had four, and a system of local courts. Once a year the General Assembly (ALÞINGI) met in the southwest of Iceland. Judicial cases that could not be resolved in local quarters were heard and the parliament (LÖGRÉTTA) convened. The parliament was the principal legislative institution and was responsible for the introduction and maintanence of law. It consisted of chieftains (GOÐAR) from the local quarters. After the conversion to Christianity, the two Icelandic bishops were each given a seat in the parliament. The institution of chieftaincy (GOÐORÐ) was the main locus of political leadership in the country. Originally there were 36 but this number was later expanded. Chieftaincies themselves were a form of property and could be alienated and even divided among multiple individuals. In some cases, individuals asserted power beyond the scope of the political system and controlled multiple chieftaincies. All independent farmers had to be affiliated with a chieftain, although they could choose among any of the chieftains in their quarter and could switch allegiances if they did not feel that their needs were being met. Other than a seat on the parliament, chieftains had few rights beyond those of other independent farmers and few institutional means of dominating others. Chieftains derived much of their authority from their ability to broker support as advocates for their constituents in legal disputes or feuds.’
[2]
Entitlement to personal property was equally defended by force: ’In Commonwealth Iceland there was a system of extraction based on claims to ownership of property, on concepts of the unproblematic [Page 161] differential access to resources in favour of a chieftainly class. The chieftains were unwilling to subordinate themselves to state institutions to protect their privileged positions. The consequence was stratification without a state, the contradiction of an economic system based on property relationships without a congruent institutional system to enforce them. Ownership was as sound as the force one could muster to defend it. There was a complex system of law, but it was all just so much labyrinthine rhetoric in the face of the stark reality that power decided. As slavery diminished, claimants to land enlarged their holdings by using wage labour and tenancy arrangements to work them. To support their claims, they had to increase their power by enlarging their entourages.’
[4]
State-enforced justice was formalized only during the Norwegian period: ’From the legal and political perspective, it is more or less agreed that the absorption of the Icelandic Commonwealth by the Norwegian monarchy after 1263 changed substantially the penal nature of outlawry and the legal status of the outlaw in society. Banishment from the community or exile from the country became a dead letter of law, as in the Jónsbók of 1281 (1970), even though magicians would occasionally be banished as late as the seventeenth century (Reykers 1936:16). And as a fugitive from justice rather than the outcast of the community, the postmedieval Icelandic outlaw was no longer punishable by the people he had wronged but instead by state-appointed magistrates and the public executioner. This was the sort of juridical transition from personal vengeance to state-enforced ‘justice’ which Lord Acton would have approved of but Andreas Heusler deplored.’
[5]
[1]: Árni Daniel Júlíusson and Axel Kristissen 2017, pers. comm. to E. Brandl and D. Mullins [2]: Bolender, Douglas James and Beierle, John: eHRAF Cultural Summary for Early Icelanders [3]: Durrenberger, E. Paul 1989. “Anthropological Perspectives On The Commonwealth Period”, 233 [4]: Durrenberger, E. Paul, Dorothy Durrenberger, and Ástráður Eysteinsson 1988. “Economic Representation And Narrative Structure In Hœnsa-Þóris Saga”, 160 [5]: Amory, Frederic 1992. “Medieval Icelandic Outlaw: Lifestyle, Saga, And Legend”, 190 |
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Judicial positions.
[1]
Judges.
[2]
Praetorian prefect had "final judgement in legal disputes". [3] [1]: (Wolfram and Dunlap 1990, 293) [2]: (Burns 1991, 100) [3]: (Bjornlie 2016, 61) Bjornlie, Shane M. Governmental Administration. in Arnold, Jonathan J. Bjornlie, Shane M. Sessa, Kristina. eds. 2016. A Companion to Ostrogothic Italy. BRILL. Leiden. |
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Professional judges did not exist until the Roman Dominate although at that time their precise role vis-a-vis that of Imperial officials is a matter of debate.
[1]
Before this time there were no judges as a distinct profession in the Roman system of law. Local magistrates dealt with local matters, provincial governors dealt with provincial matters, and the praetors often dealt with cases in Rome. The Roman people could be duly convened as a final court of appeal in cases involving citizens.
[1]: (Mousourakis 2007, 163) |
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qadi. "The purchase of milk [private property] was registered in the offices of the qadi (judge) through the issue of a wathiqa (legal deed) and was a secure form of property protected by the law."
[1]
[1]: (Davidovich 1997, 147) Davidovich, E A. in Asimov, M S and Bosworth, C E eds. 1997. History of Civilizations of Central Asia. Volume IV. Part I. UNESCO. |
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unknown for previous polity.
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’Persons accused of crimes were taken before examining magistrates called sabhachara; these were peripatetic investigators of the court. Witnesses were called, testimony sworn, and written depositions taken. Often, fines were assessed, but punishments for serious infractions of the law was severe.’
[1]
’The king was recognised as the final court of appeal and final authority in law. Before a case reached the king, it might go through various lower courts; inscriptions frequently mention officials who appear to have functions connected with courts of law. There is no way of measuring the extent of discrimination and corruption in the administration of justice. The ideal of fairness to all was certainly recognized; one judge, or [sic] example, is declared to have been appointed on the strength of his impartiality’
[2]
[2]
’From its earliest appearance, the Khmer language adopted a great many lexical terms from Sanskrit (Bhattacharya 1991: 6; Pou 2003: 283). However, the content of the Khmer inscriptions differ markedly from the Sanskrit ones. They are not addressed to gods, but to a temporal audience: authorities and officials, relatives of the founders, and in their broad imprecations, to the world in general. The authors tend not to express a political agenda here, in that they do not praise or assert power. The Khmer inscriptions seem more like legal documents - they often record the history of endowments made to foundations and they establish the ownership of land, setting out the rights of the foundation and the founder’s family. Vickery (1985) has suggested that many such texts in the 10th and 11th centuries have a certain political agenda on the part of the authors, who often appear to be concerned with their claims to titles and land. The texts may list and describe in detail the property of the foundation, record the donors, the circumstances under which land was acquired, the price paid, and settlement of disputes by courts. They may note the weight, quantity and material of temple ‘treasure’ or objects used in exchanges, the rice production of foundation lands, sometimes their location and dimensions. Requirements for continuing support for divinities and temple personnel may be set out and personnel might be listed, sometimes by name, gender, dependents, duties or place of origin, or else as totals. The texts may also refer to imposts or immunities granted to the foundations. The king is frequently acknowledged in inscriptions authored by individuals other than rulers, and a date is often recorded. The king is depicted as having a key role in state administration, establishing inquiries and being at least nominally responsible for legal decisions, ordering building works to be initiated, etc. There is an emphasis on the role of the ruler or of his predecessors in giving land, granting permission to purchase it or materially supporting the foundation, presumably placing the founder and his relatives under some future obligations. The authors record the merit, accrued by the ruler through his generosity, which is mostly dealt with poetically in the Sanskrit texts. Inscriptions written by rulers in Old Khmer are edicts relating mostly to matters of law, temple administration or land allocation and taxation. The texts are somewhat formulaic, though of varying length. Presumably, wealthier temples had more resources warranting recording, and had more literate scribes to produce the texts.’
[3]
[1]: (Coe 2003, p. 144) [2]: (Mabbett and Chandler 1995, pp.167-168) [3]: (Lustig 2009, p. 108) |
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E.g. Ahab securing the vineyard of Naboth by having him accused of blasphemy (I Kings 21).
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’The first Chinese envoys who wrote about Funan in about 250 c.e. described it as an urbanized kingdom that resembled the Chinese state rather than the region’s other tribal social systems. They pointed to the structured political hierarchy and bureaucracy including a centralized judiciary system, institutionalized religion, and even libraries.’
[1]
[1]: (West 2009, p. 224) |
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Islamic
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From the example of Carthage, as well as that of the Israelites.
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Sources do not suggest there is evidence for a formal legal system during this period.
[1]
[1]: Marcus and Flannery (1996) Zapotec Civilization: How urban society evolved in Mexico’s Oaxaca Valley. Flannery and Marcus (1983) The Cloud People: divergent evolution of the Zapotec and Mixtec civilizations. Museum of Anthropology, University of Michigan, Ann Arbor. Academic Press, New York. |
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Sources do not suggest there is evidence for a formal legal system during this period.
[1]
[1]: Marcus and Flannery (1996) Zapotec Civilization: How urban society evolved in Mexico’s Oaxaca Valley. Flannery and Marcus (1983) The Cloud People: divergent evolution of the Zapotec and Mixtec civilizations. Museum of Anthropology, University of Michigan, Ann Arbor. Academic Press, New York. |
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A formal legal system, as associated buildings and lawyers, is assumed absent as the only evidence for writing during this period is from the carved stone slab (Monument 3) at San José Mogote
[1]
and the largest buildings were used as temples and elite residences.
[2]
[1]: Marcus, J. and K. V. Flannery (1996). Zapotec civilization: How urban society evolved in Mexico’s Oaxaca Valley, Thames and Hudson London, p130 [2]: Marcus, J. and K. V. Flannery (1996). Zapotec civilization: How urban society evolved in Mexico’s Oaxaca Valley, Thames and Hudson London, p131-4 |
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Coded as absent as sources do not suggest there are written records of a legal code or buildings for legal proceedings. Considering the small size of the polities, full-time judges would be very unlikely.
[1]
[2]
[1]: Marcus, J. and K. V. Flannery (1996). Zapotec civilization: How urban society evolved in Mexico’s Oaxaca Valley, Thames and Hudson London. [2]: Flannery, K. V. and J. Marcus (1983). "The Cloud People." New York. |
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Considering the small size of polities, full-time judges were probably absent. Coded as absent as sources do not suggest there were legal writings or buildings for legal proceedings.
[1]
[2]
[1]: Marcus, J. and K. V. Flannery (1996). Zapotec civilization: How urban society evolved in Mexico’s Oaxaca Valley, Thames and Hudson London. [2]: Flannery, K. V. and J. Marcus (1983). "The Cloud People." New York. |
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No evidence for employment specialization characteristic of a developed urban society. Agricultural and herding would be typical occupations with "some internal differentiation ... in view of the sophistication of craft production documented at Mehrgarh.”
[1]
[1]: Agrawal, D. P. (2007) The Indus Civilization: An interdisciplinary perspective. Aryan Books International: New Delhi. |
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No evidence for employment specialization characteristic of a developed urban society. Agricultural and herding would be typical occupations with "some internal differentiation ... in view of the sophistication of craft production documented at Mehrgarh.”
[1]
[1]: Agrawal, D. P. (2007) The Indus Civilization: An interdisciplinary perspective. Aryan Books International: New Delhi. |
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The crown appointed Icelandic lawmen or judges: ’These new codes wrought a fundamental change in the conception of positive law as well as in legal practice in Iceland. The old court procedures with its intricacies and formalities was replaced by the simpler Norwegian system. The king was ruler and lawgiver was regarded as the source of justice, and behind the laws now stood the royal authority, ready to execute the decrees of the courts even against the most powerful offenders. Violation of the law was no longer viewed as a private affair to be settled by the offender and the party injured, but as a crime for which the wrong-doer had to answer to the government. The fines to be paid and other punishments to be inflicted were still to be determined by twelve men according to ancient usage. The old punishment of banishment for serious offenses was retained, but fines payable to the king were instituted in numerous cases, and capital punishment was to be inflicted for grave crimes, like murder, robbery, rape, counterfeiting, forgery, and seduction. Other severe punishments were also established. [...] But care had been taken by the lawgiver to guard against hasty action and undue harshness in the treatment of wrong-doers. In a chapter about legal decisions he advises the judges to consider carefully truth, justice, patience and mercy, in order that their decisions not bear the marks of cruelty and hatred. [...] The first lawmen appointed under the new law were Stural Thordsson and Jon Einarsson. The first royal magistrates who received the title of sýslumadr were Hrafn Oddsson in western Iceland, and Thorvard Thorarinsson for the southern and eastern districts, and Asgrim Thorsteinsson in the south-western districts. Others may have been appointed, but their names are not known. In 1279 Hrafn Oddsson became royal merkismadr with authority over all Iceland, as already noted.’
[1]
’These lawmen (lögmenn) can be considered full-time judges.’
[2]
The lögrétta assumed judicial duties: ’The judicial powers were lodged in the lögrétta; the legislative functions should be exercized by the Althing and the king conjointly. But the thing and the crown might take the initiative in legislation. As the king now acted as lawgiver, the legislative functions of the thing were greatly reduced, and it became principally a judicial tribunal like the Norwegian lagthings. The laws were no longer recited from the Mount of Laws, and as the Althing now consisted of chosen representatives, who were soon further reduced in number, it lost its popular character. As the general public ceased to attend its sessions, its significance as a center of national and social life disappeared.’
[3]
’This was made especially manifest by the new procedure introduced at this time of summoning people to Norway for trial. [...] The king’s officers also travelled about collecting the royal revenues with greater severity that had hitherto been customary. They reproved the people for appealing to the bishop, and in some cases forbade them to pay as large church dues as the bishop had demanded.’
[4]
The practice of summoning Icelanders to Norway for trial met with opposition and was ultimately curtailed: ’This reminder had the result that in 1315 a full representation again met at the Althing from all parts of Iceland. In 1314 he issues a new supplement to the Icelandic code, in which he sought to right some of the wrongs complained of in the remonstrance submitted by the Althing. Regarding the bringing of Icelanders to Norway for trial, the law was made to conform to the remonstrance. A provision was inserted stating that such a step should be taken only if the sýslumenn and lawmen were unable to try the case. The demand for new taxes was definitely dropped. But nothing was said regarding the appointment of native Icelanders for office; nor was any assurance given that six ships would be sent to Iceland every year, though this matter was now of greater importance than ever, since the trade with Iceland had become a Norwegian monopoly. No guarantee existed that the king would respect the provisions in the union agreement. Hitherto he had shown a disposition to place Iceland on the level with the Norwegian dependencies. What the future relation between the two countries was to be seemed as much as ever an unsettled question.’
[5]
The regional courts were abolished: ’The Icelanders also received two new law codes during Magnus’ reign. In 1271 the king sent to Iceland a new legal code known as Járnsída (Ironside), followed by another book which bears the name of its main author, Jón Einarsson, Jónsbók (Jón’s Book). But, contrary to developments in Norway, this second revision led Iceland further from conformity with Norwegian law. Jónsbók was admittedly based largely on Norwegian law, but it was drawn up for Iceland alone, and it remained in force there for four to five centuries, while Norwegian law underwent many revisions. Jónsbók thus made Iceland a separate jurisdictional area under royal rule. Iceland’s system of government was radically altered by Járnsída and Jónsbók. Alpingi continued to meet, but the Law Council, which had been a legislative body, became primarily a court of law. The four regional courts, the Fifth court and the spring assemblies were abolished; new officials, lögmenn (lawmen) and sýslumenn (district commissioners) presided over regional court proceedings as required. Iceland was also assigned its own administrative officials. Around 1300 a demand was first put forward at Alpingi that Icelanders of the old chieftain clans should be apointed royal representatives in Iceland. For centuries after this, most administrative offices were held by Icelanders. Only the office of governor (hirdstjóri), the supreme royal official in Iceland, was held by foreigners as often as Icelanders.’
[6]
[1]: Gjerset, Knut [1924]. "History of Iceland", 215pp [2]: Árni Daniel Júlíusson and Axel Kristissen 2017, pers. comm. to E. Brandl and D. Mullins [3]: Gjerset, Knut [1924]. "History of Iceland", 214p [4]: Gjerset, Knut [1924]. "History of Iceland", 220 [5]: Gjerset, Knut [1924]. "History of Iceland", 233 [6]: Karlsson, Gunnar 2000. "A Brief History of Iceland", 18p |
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SCCS variable 89 ’Judiciary’ is coded as ‘1’ or ’absent’. Village procedure remained informal even after colonization: ’There is no judicial procedure among the Orokaiva, and no ‘police force’. In so far as sorcery is concerned, by the way, these deficiencies are perhaps not altogether deplorable. The suspicion of sorcery, where it is backed up by ignorant legal authority, may go to extraordinary lengths of oppression. No Papuan people has reached that stage of legal development which would have made possible such condemnations as those of West Africa’
[1]
’There are customary restrictions upon feuding within the tribe, which exist in sharp contrast to the standard acceptance and formalization of hostility between tribes. Formerly, official legal penalties, generally violent, were meted out to criminals. Fear of the ancestors and desire to avoid unfavorable public opinion remain the major mechanisms of social control.’
[2]
’For those who remain in the village, the sanctioning mechanisms are mostly informal. Failure in one’s obligations means loss of status, leads to gossip, derogatory remarks to one’s face, perhaps even a harangue at night by a man at the other end in the village. The councillor, the court and the police are only a last resort in serious quarrels. I saw a councillor enter a dispute once, playing a mediating role between disputants from two villages, but without playing more than an advisory role. One quarrel was taken to court, but this was not a case where traditional mechanisms of social control had failed. A woman accused her husband of adultery with one of the new Garombi arrivals. She and the husband fought and had to be separated as the lady had an axe; the domestic dispute soon died down but the Garombi woman laid a complaint for slander with the police. Before this came to court, the wife had been roundly condemned by almost everyone in the village; she had repented, had gone round the village to signify her regrets, and been as contrite as her pride could possibly allow her to be. The court let her off with a reprimand. The episode, far from suggesting a flagging of Orokaiva traditional social control, had demonstrated to me that it was still effective. Nonetheless, the Orokaiva, as so many other peoples in contact with Western civilisation, have been quick to see the advantages of a judicial system providing an impartial arbiter in disputes, to whose decisions both parties will defer. At the moment, this western judicial system is an additional resource of Orokaiva law, without undermining its existing institutions.’
[3]
[1]: Williams, F. E. (Francis Edgar) 1928. “Orokaiva Magic”, 224 [2]: Latham, Christopher S.: eHRAF Cultural Summary for the Orokaiva [3]: Schwimmer, Eric G. 1969. “Cultural Consequences Of A Volcanic Eruption Experienced By The Mount Lamington Orokaiva”, 182p |
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SCCS variable 89 ’Judiciary’ is coded as ‘1’ or ’absent’. Village procedure was informal: ’For those who remain in the village, the sanctioning mechanisms are mostly informal. Failure in one’s obligations means loss of status, leads to gossip, derogatory remarks to one’s face, perhaps even a harangue at night by a man at the other end in the village. The councillor, the court and the police are only a last resort in serious quarrels. I saw a councillor enter a dispute once, playing a mediating role between disputants from two villages, but without playing more than an advisory role. One quarrel was taken to court, but this was not a case where traditional mechanisms of social control had failed. A woman accused her husband of adultery with one of the new Garombi arrivals. She and the husband fought and had to be separated as the lady had an axe; the domestic dispute soon died down but the Garombi woman laid a complaint for slander with the police. Before this came to court, the wife had been roundly condemned by almost everyone in the village; she had repented, had gone round the village to signify her regrets, and been as contrite as her pride could possibly allow her to be. The court let her off with a reprimand. The episode, far from suggesting a flagging of Orokaiva traditional social control, had demonstrated to me that it was still effective. Nonetheless, the Orokaiva, as so many other peoples in contact with Western civilisation, have been quick to see the advantages of a judicial system providing an impartial arbiter in disputes, to whose decisions both parties will defer. At the moment, this western judicial system is an additional resource of Orokaiva law, without undermining its existing institutions.’
[1]
’There is no judicial procedure among the Orokaiva, and no ‘police force’. In so far as sorcery is concerned, by the way, these deficiencies are perhaps not altogether deplorable. The suspicion of sorcery, where it is backed up by ignorant legal authority, may go to extraordinary lengths of oppression. No Papuan people has reached that stage of legal development which would have made possible such condemnations as those of West Africa’
[2]
The Constabulary did not have judicial powers and mostly filled the role of law enforcement: ’Village Constables. The suppression by force which had marked the early contact phase gave way to a form of ‘indirect rule’ through the appointment of Village Constables. The earliest Village Constables were the strong, leading men who had confronted the Europeans as warriors. As time passed war leaders were no longer a feature of the society, but patrol reports indicate that by and large Village Constables were influential and effective in the maintenance of law and order. The position of Village Constables was an uncomfortable and interstitial one. They had the difficult task of attempting to juggle the interests of their relatives and exchange partners and of the Administration, so that both sides were reasonably happy most of the time. Between 1907 and 1914 the number of Village Constables in the Northern Division rose from fifty-four to eighty-three, indicating that this system of administration was satisfactory to the Australian authorities. The Village Constables were concerned with enforcing legislation which impinged upon many aspects of daily life: burial of the dead, upkeep of roads, construction of latrines, neatness of houses and so on. Failure to obey these regulations could lead to imprisonment.’
[3]
The colonial authorities established prisons: ’Part of the setting up of a governmental organization was the establishment of gaols and the punishment of villagers who infringed the laws and regulations. By 1903, 100 Orokaivans had been committed for trial on charges ranging from murder to breach of school regulations. Kokoda gaol alone had seventy-nine prisoners in 1905 and 168 in 1906. Speaking of one of the groups who inhabited Northern Division, Wetherell observes that this time they had ‘brushed with a tribe they could never conquer’’
[4]
Colonial magistrates fulfilled both executive and judicial roles rather than being full-time judges (see below).
[1]: Schwimmer, Eric G. 1969. “Cultural Consequences Of A Volcanic Eruption Experienced By The Mount Lamington Orokaiva”, 182p [2]: Williams, F. E. (Francis Edgar) 1928. “Orokaiva Magic”, 224 [3]: Newton, Janice 1985. “Orokaiva Production And Change”, 38 [4]: Newton, Janice 1985. “Orokaiva Production And Change”, 32p |
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Clan elders fulfilled judicial, but also ceremonial and other duties: ’The oldest kinsman in the clan, or the [unknown]iye-[unknown]usa , is always heaped with honors, if he is both rich and has never been put on trial. To him pertains the jurisdiction in trifling quarrels between kinsfolk. The following ceremonies serve to recall the religious functions that he (Ysekh) formerly exercised a. At the time of the spring festival, which bears a strictly clan character, they bring to him, first of all, a large wooden vessel ( Choron ) containing kumiss; he pronounces a prayer of thanks to the gods and then pours the kumiss upon the fire. b. At the time of the arrival of the betrothed at the bridegroom’s yurt, they take from the sleigh of the betrothed, and place upon a table in front of the fire place the boiled head of a horse, whose eyes are covered with butter, to whose ears are attached intestines filled with horse’s blood, and a wooden cup filled with butter. After this the betrothed enters the yurt, and stands, having first untied her girdle, on the right side of the komelok [RCH: i. e., the fireplace] where she is met by the oldest kinsman, whose place is sometimes taken nowadays by the most honored guest, who, kneeling, throws into the fire pieces of meat, blood and butter, and blesses the bride. For the completion of this ceremony, whose obvious object is to unite the bride with the bridegroom’s home, the oldest kinsman secures for his use the head, blood and butter brought into the yurt, and in addition the sum of one ruble.’
[1]
Clans also handled criminal cases and litigation in assemblies of elders: ’I shall end this survey of Yakut clan institutions and their self-government by a note about Yakut legal procedure. Strictly speaking the Yakut court is the assembly: the clan, nasleg, or ulus assembly, depending on the circumstances. These courts are under each other’s jurisdiction as courts of appeal. The Yakut enjoy waging law suits against each other and witnessing court proceedings. More important matters are always handed over to the assembly. At the assembly the wealthy people usually put in their comments, which areheard attentively, and although the final judgement is pronounced by the chairman of the assembly, he usually simply transmits a condensed form of the general opinion. The ligitants stand before the presiding clansmen with their heads bare, and, frequently nodding their heads and, while making the most important points, making deep bows from the waist, each in turn expound their case. Witnesses are called forth and interrogated on the spot, while unruly witnesses are brought by policemen. The judges always have to sit. In some localities it is customary for the judges to wear caps on their head.’
[2]
Criminal cases were transferred to Russian courts only after 1889: ’Nevertheless until very r ecently and even criminal cases such as beatings, personal injury, and thefts, even for a considerable amount, as long as a house was not broken into, were judged by the clan administration. Only from the year 1889, when an order came out to proceed against the trible authorities if they did not communicate such matters, have thefts begun to be referred to the Russian courts and judged according to Russian laws. For theft the Yakut usually punished wealthy people by a fine which was two or three times the value of the stolen article, depending on the circumstances. For beatings and personal injuries they sentenced the guilty party to support the injured party during his disablement or to pay him a lump sum. Now the guilty are put in prison, and to the great horror of their neighbors they usually leave out and out scoundrels. Such crimes as the violation of women, the breaking of agreements, fraud, and forgery were apparently unknown to the Yakut and went unpunished. But the violation of the wedding agreement was provided for by the kalym. At the present time most of the cases and statements of claim which come before the clan administrations concern the violation of boundary lines and various disputed lands.’
[3]
[1]: Kharuzin, Aleksai Nikolaevich 1898. “Juridicial Customs Of The Yakut”, 40p [2]: Sieroszewski, Wacław 1993. “Yakut: An Experiment In Ethnographic Research”, 797 [3]: Sieroszewski, Wacław 1993. “Yakut: An Experiment In Ethnographic Research”, 798 |
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