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Author(s) of the publication: H. DUMANOV, Ya. SMIRNOVA

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by Hassan DUMANOV, Dr. Sc. (Hist.), Director, Institute for Humanitarian Studies under the Government of Kabardino-Balkaria and the RAS, Kabardino-Balkarian Science Center,

Yaroslava SMIRNOVA, Dr. Sc. (Hist.), senior researcher, Miklukho-Maklai Institute of Ethnology and Anthropology, RAS

In recent time studies of the legal aspects of authority and associated norms have been making rapid headway in this and other countries. In 1997, Moscow hosted the 11th International Congress of the Commission on Folk Law and Legal Pluralism, and a customary law section was set up at the annual nationwide Conference of Ethnologists and Anthropologists in 1999. Until now, however, ethnologists and law scientists cannot be said to have worked in close contact, although both branches of science share a common patch, ethnology of law. This situation can be turned around by taking up power organization and normative regulation in pre-political societies (the province of ethnology) and political societies (basically, the domain of jurisprudence).

American scientist Norbert Wiener (1894-1964), the father of cybernetics, held that much depends on definitions. Assuming that this is really so, we feel that before we proceed with our subject we are to specify the concepts of power and normative regulation.

In the generally acclaimed definition of Max Weber (1864-1920), a German sociologist and historian, "power is any opportunity to impose, under particular social relations, one's own will despite resistance, regardless of what such opportunity rests on." In our view, only one point is arguable in this definition: why specifically under particular social relations? We must remember, however, that Weber lived at a time when the latest ethological facts were unavailable. These facts show that power relations, or, in a broader context, domination systems exist in zoological communities, as well as in human societies. We are not going to address this philosophical subject here, although we have numerous studies, beginning with the celebrated works of the Austrian zoologist, Konrad Lorenz (1903-1989), who was among the founders of ethology, at our disposal. Instead, we will confine ourselves to power and norm.

It is simple enough with normative regulation. Norm is an obligatory rule of behavior. Plainly, it has to be reinforced by some kind of power, whether institutional or non-institutional, official or unofficial. One thing is certain: scientists here and abroad put different interpretations on such regulation in pre- political society. To them, it appears to be morality, customary law (an aggregate of customs endorsed in some way or other), and law proper. In the 1970s, Russian ethnologist Abram Pershits defined it as mononormatics (from Greek monos, single), that is, a mixture or fusion of legal, moral and formal behavioral norms. His definition was widely accepted in literature on law and history here, and outside Russia as well.

The concept of mononormative regulation does not turn the spotlight on any one form of public consciousness, either morality or law. With reference to pre- political society, we are hard put to say which form of consciousness and regulation we are concerned with. More often than not, immoral acts have invoked tough legal


Articles in this rubric reflect the opinion of the author.-ёy.

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penalties, while unlawful offenses drew relatively mild moral censures. Textbook examples of this abound. In one of them, say, members of the Papua tribe of Kapauku, incensed by the cupidity of a wealthy tribesman, told his near relatives to condemn him to death. Cupidity does not carry this kind of penalty from the viewpoint of either law or morality. By contrast, a heinous crime, the murder of a tribesman often invokes moral censure, for more death would only decimate the tribe, small as it already was.

Back to our subject, human society has always had power that imposed normative regulation - the power of a community itself, its collective opinion, its chieftain or chieftains. In a least developed society, ethnologists claim, among the Tasmanians, chieftains have led their local groups in peace time and in time of war. Their power was supreme, however, even if they frequently were sorcerers and witch doctors besides. According to one researcher, their behavior was guided by a "common law code" that regulated the life of their tribes. An offender was punished by having to stand motionless under a shower of spears thrown at him from all sides. Australian aborigines had chieftains, council of elders, and, in some tribes,

even what are judges in more advanced societies. In addition to public opinion, the tribes had a more or less official authority. Accordingly, every aboriginal group in Australia had its own rules of conduct, and any downright deviations from these rules were punishable by graded penalties formed under the influence of traditions: insults by tribesmen, ridicule, physical violence, sorcerer's spells, burial without established rituals, and much else.

In late primitive society, power organization remained uninstitution-

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alized, but became more stable and diversified. Examples are provided by the Big Man among the Papuans and Iroquois sachems (chiefs) among North American Indians. To rise to a Big Man position, a man had to possess superior physical force, intellect, oratorical skills, knowledge of tribal mythology and witchcraft, and, not least, organizational abilities and wealth. Tribesmen wanted the Big Man's name "to be on people's lips in all four parts of the world". The Big Man's status, for that matter, already had rudiments of heredity - fathers gave their sons a start in life, of sorts. After toting up some numbers, researchers have found that about three-quarters of the male progeny of Big Men of large tribes and nearly half in smaller tribes were given the same status. Unlike Big Men, Iroquois sachems were elected, their personal assets counting for most. Here, too, power showed signs of heredity, with new sachems of many tribes elected from a particular familial group.

Big Men and sachems maintained, by personal example, word of mouth, and authority, the regulatory norms existing in their societies. But these did not apply to everybody in equal measure. Ordinary tribesmen were required to follow them always, while chieftains and their families made exceptions for themselves. On the Trobriand Islands, Melanesia, for example, a chief giving a sister in marriage could tell her husband to put up his house nearby so he could be forced to work for the chief. His sons did not, contrary to established tradition, live with the maternal uncle, but started homes and farms near their father's. Blood or tribal feud was commonplace, with its customary equivalent of blood money, but it was different for tribal elites and ordinary tribesmen.

Such social transformations in power organization and behavioral norms were even more striking in the age of society stratification into classes and politogenesis. It was a time of newly formed pre-political concepts such as chiefdoms and elitism. In contrast to the preceding period, chief-dom in the age of politogenesis was a fully institutionalized power institution, with title and powers going down to the descendants. As a rule, chieftains were military overlords who led marauding raids and campaigns, living off their loot, themselves and, to an extent, their battle-seasoned tribesmen. Examples can be drawn from the history of Bantu-speaking and many other tribes of Tropical Africa, and, in even a greater measure, nearly all the nomadic population in the arid zone of Southeastern Europe, Africa, and Asia. Unlike chiefdoms, ruling elites prospered chiefly by exploiting their tribesmen; they had full control over tributes paid to the tribe, some of which they gave out to their retainers.

Many behavioral norms in the age of emerging classes and political institutions can already be called customary law norms. They inherited this new quality from pre-political entities, which had picked those of the existing norms that favored them most and blended them with legal innovations into a code of effective legal norms. It will be remembered, however, that in the course of politogenesis power appeared to be shared between rising polities and continuing communal bodies of power. Normative regulation, too, was divided: norms of polities and those approved by community chiefs or communities themselves, or the opinion of social milieu coexisted within the framework of a single jurisdiction.

Contrary to jurists, therefore, ethnologists distinguish two types of customary law: norms enforced by institutionalized bodies of power and those imposed by the force of social environment. The former are norms in the juridical sense of the term, while the latter are more reminiscent of mono-norms of preceding ages.

Law historians and ethnologists have studied behavioral norms in the age of early class stratification and politogenesis. Outwardly, they were set in with archaic rituals, symbols, and scenarios of justice administration, and did not lose vestiges of primitive collectivism, such as kinship rights and duties (for example, in blood feud, or payment or collection of blood money). This aspect was reflected in overemphasized publicity, with all functions performed in the presence of numerous witnesses and cojurors, including relatives and quasi- relatives, in the first place. Norms had not yet spun off religious concepts and prescriptions (the so-called sacral varnish), moral commandments or maxims ("honesty" and "dishonesty" of crime), etc. Customs of those times were not abstractions, and were singu-larly specific: all of their elements were worked out to the finest details, a quality that researchers attribute to the materiality and specificity of the archaic mindset. Legal proceedings were unsophisticated: a decisive role was assigned to purgative formulas, trials by ordeal or duel, establishing the "good names", instead of the guilt of one of the litigants.

It is useful, in this context, to look at a ritual that was practiced among the Ingushes in the Northern Caucasus in the latter half of the 19th century A person suspected of theft was to take an oath. Next, he was escorted, with a basket filled with traditional items (a broom, spade, etc.) on his back and a dog tied to his neck, to the grave of a relative, by his accusers. And he walked three times around the grave. The victim meanwhile told him, "Let this dog gnaw at the corpse if you stole that thing from me." The dog was then killed by a pistol shot, and the suspect was cleared.

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Externalities aside, the core idea was what mattered most. In the view of jurists and many ethnologists, the formative age of classes and polities was a time when behavioral norms, today known as customary law, came into prominence. We can cite numerous examples, such as the old adats* among Caucasian peoples, when no line can actually be drawn between what is law and what morality. According to Russian explorer Boris Dalgata, marriage between relations among the 19th century Ingushes, who had not yet experienced politoge-nesis, was "unconditionally banned", on one hand, and "was considered a disgrace" only, on the other. "No instances of marriage by compulsion from the community are known," and yet a man submitted to the community's will, "if he wanted to keep his good name." A man could divorce his wife, but "the moral commandments of society" counteracted this. "Killing one's children and relatives carries no legal liability, but this is great disgrace and shame." A son was not liable for a murder committed by his father, but "society does not accept this".

To our mind, the era of politogene-sis can only be discussed in the context of incipient separation of customary law from morality and etiquette. Or can it? The separation of customary law was based on the legalization of that part of norm by the emerging political power which was beneficial and useful to the rulers. Combined with specific normative innovations, that part formed the mainstay of future law proper. An idea of how this process got under way is provided by the behavior of the Hawaiian King Kamehameha II in the 19th century Determined to do away with the old religion containing many taboos, which was of no use to him any longer, he set out with dropping one of the taboos - taking meals by men and women together. He just walked into his wives' quarters and sat down to eat with them. It is another matter that the old taboo could survive among the broad sections of the population, that is, a communal tradition coexisted with the official royal innovation.

Generally speaking, numerous facts add up to show that law had not fully separated from morality Traditional normative regulation continued to operate in crop and animal farming and game hunting communities, alongside general political normative regulation, or pre-law, and then law. There is a wealth of evidence on this subject, and so we wiil only confine ourselves to a small area, the Northern Caucasus.

Communal norms were widespread in every part of jurisprudence - criminal, civil, family law, and so on. As late as the second half of the 19th century, murder, bodily harm or any other major offense among the mountain dwellers of the Northern Caucasus, particularly its eastern and central parts, was rarely litigated in an official court. Communal and family tribunals, mediating judges, elders, the revered guardians of tradition, or communal assemblies themselves pronounced the sentence in the spirit of the adats, to be executed mainly by the aggrieved party. A person directly involved or commanding indisputable authority could call a communal assembly to deal with a blood feud sparked off by infliction of wounds, abduction of a girl, etc. Daghestan's earliest, Gidatlin, adats regulated land ownership and households. For example, "If a resident of the Gidatlin community moves, against the best interests of his village or his community, to another community, all his estate shall be dispossessed in favor of the Gidatlin community" The local commune required its members to take part, when and where necessary, in the construction of mosques, roads, and bridges. All peoples in the region, at least until the reforms of the 1860s, relied on adats to decide on inheritance matters, with males being the only beneficiaries. In fact, adats defined the position of women: contrary to the sharia and imperial laws, ransom was demanded by a bride's relatives giving her in marriage (for their own benefit, rather than as her own part of the marriage property, required under Moslem law). They were also guided by it in settling conflicts caused by abduction of brides, wives adulteries', divorces, etc.

It is held that behavioral norms surviving from ancient times in peasant communes were customary laws and had effect in peasant communes only. These views are not indisputable. Many of communal norms, much like the primitive mono-rules, were a blend of law, morality, and etiquette. Caucasian hospitality customs are a good example of this. Hospitality is a tradition among the Adygeis, named at random, and, along with many of their customs in the past, was considered a model of behavior for their neighbors. It mixed all the three aspects of behavioral norm. Legal aspect: the host, wrote an Adygei enlightener in the 19th century was accountable for the safety of a stranger to all of his tribe, and whoever could not protect his guest from woe faced trial and punishment. Ethical aspect: according to another Adygei enlightener of that time, an offender against the hospitality custom became an object of his tribe's scorn, and was, in times gone by, banished from a community of decent people. Finally, the etiquette: the Adygeis had as many as fifty or so hospitality rules, developing the behavior of both the host and the guest to minute details.


* Adat (from Arabic adat, or custom), a customary law norm in the Middle East.- frf.

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Were post-primitive syncretic behavioral norms followed in peasant communes only? This question was, we believe, aptly answered by Sergei Tokarev, a Russian ethnologist of the second part of this century. "We live," he wrote (referring to more than the peasant world. - Auth.), "encumbered from all sides by customs, some of them ancient and some more recent. We have made them so great a part of our lives that we habitually do not give them a thought, even though we follow them at every step. What I mean is customs, a sort of unwritten laws, rather than laws in their direct sense. Only rarely do they relate, and only indirectly at that, to any specific articles of the law, or civil or criminal law." We must only add here that in certain situation, of course, offenders against customs run afoul, as they did in the past, of the power of the social environment, public opinions, or acknowledged authorities. A relatively short time ago, a peasant assembly could condemn offenders to flogging or "cold" cell. This is in the past now (if we leave aside the Cossacks' attempts to revive their old ways), and society today is armed with different, modern tools to discipline offenders against established norms. Among the Adygeis in our day, for example, a man transgressing exogamy rules is punished with so rigid a boycott that he has no choice but flee his native parts and settle elsewhere.

Let us draw the line here. Why do many researchers regard the customs of peasant communities as customary law, while others put urban customs in the same category? Why is the legal aspect specifically emphasized by all? Actually, however, such customs combine legal, ethical, and etiquette norms in equal measure. It would be perfectly right to call them mononormative customs as well.

It is appropriate now to distinguish between the two varieties of mononormatics: primitive and post-primitive. The chief distinction between them is, perhaps, that the former thrived at the time of power and normative monism, while the latter ruled in the age of power and normative pluralism. If we translate this idea into chart form, we will see a straight line of power and mononormatics running from the origins of human society to our days. It bifurcates, however, with the rise of pre-polities and polities. Another line, political power and law, springs from the bifurcation point, to continue parallel to the first one.

Orphus

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