orUa6 Sociological Jurisprudence Revisited,

AReview (More or Less) of Max Gluckman

Reprinted from Stanford Law Review, Volume 8, No. 3, May 1956

James G. March

499

BOOKS

Sociological Jurisprudence Revisited, A Review(More or Less) of Max Gluckman

Judicial Process Among the Barotse of Northern Rhode-sia, The. By Max Gluckman. Glencoe: The Free Press. 1955.xxiii + 386 pages. $6.75.

Only such equally pervasive social relationships as those iden-tified with religion, the family and political organization havebeen exposed to attention comparable to that focused by studentsof human institutions on the legal system and law. In recent years,this fascination with the operation of the legal process has beenreflected not only in the writings of jurists (such as Frank1 ) andprofessors of law (such as Llewellyn2 ),but also in the writings ofphilosophers (such as Northrop3 ), political scientists (such asPritchett*), sociologists (such as Riesman6 ) and anthropologists(such as Barton 6 ). The legal process has been subjected to thescalpel of Herbert, 7 the auger of ter Haar8 and the unidentifiedblunt instrument ofBoudin.8 The self-conscious psychoanalysis ofthe legal process made by members of the faith sits side-by-sidewith the various shades of awe, curiosity, distrust and active dis-taste thatcharacterize lay observers. And, although it may be hardto believe in the light of such disabilities, it is probably accurate tomaintain that knowledge about law, the legal profession and theirrelationships to society as a whole is gradually being augmented.

One of the major contributions to this increased knowledgecomes from the literature of ethnology. Operating in a substantial

*Fellow at the Center for Advanced Study in the Behavioral Sciences,

Stanford,

Cali-

fornia,

on leave from the Carnegie Institute of Technology.1. Frank, Law and the ModernMind (1930).2. Llewellyn, The Bramble Bush (1930).3. Northrop, Ethical Relativism in the Light of Recent Legal

Science,

52 J.Phil. 649(1955).

4. Pritchett, The Roosevelt Court (1948).5. Riesman, Law and Social Science, 50 Yale L.J. 636 (1941).6. Barton, The Kalingas (1949).7.

Herbert,

Uncommon Law (1936).8. Ter

Haar,

Adat Law in Indonesia (1948).I 9. Boudin, Government by Judiciary (1932).

James G. March*

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number of comparatively simple cultures, anthropologists havebeen able to provide the breadth of more or less independent ob-servations that the student of comparative legal systems finds dif-ficult to locate among the major nation-states of contemporary so-ciety. The methodological problems of comparative anthropologyare by no means simple; but, in principle, the observations re-ported in field studies of pre-literate societies provide one of therichest sources of comparative material currently available for thestudy of social institutions. Ethnology is not the only source ofsuch material, of course, and in frequent instances is not the mostappropriate. But it is something that cannot be ignored by thestudent concerned with the legal process.

Into this hopper of anthropological research Professor MaxGluckman has thrown a study of the Barotse, a major Africansociety.10 It is the first of a proposed triad by the same author thatwill eventually (as presently projected) include books on the roleof Barotse courts in the social life of theculture and on the centralideas of jurisprudence in the society. The methods and other de-tails of the study are sketched below. It may be desirable beforeproceeding to such specifics, however, to mention briefly the eth-nological literature dealing with primitive legal systems on the onehand and the legal and legal-philosophical literature dealing withcontemporary systems on the other. Such a review is particularlyappropriate for the consideration of Professor Gluckman's treatisebecause it lies in both traditions and vigorously attempts to fusethem. In this sense, the volume is patently an ambitious one.

It is impossible to discuss in detail and uneconomic to makemore than a quite limited list of the studies of specific primitivelegal systems that are currently available. A recent bibliography byHoebel11 cites specific studies of legal institutions in the cultures ofthe Haya, Ifugao, Kalinga, Mashona, Hopi, Akan, Bantu, Sepedi,Bapedi, Pima, Comanche, Shona, Nuer, Abelam, Yurok, Naskapi,Cheyenne, Malabar, Nabaloi, Iroquois, Tlingit, Dinka, Tsonga,Ashanti, Kiowa, Moro, Tswana and Chibcha. In addition, thereare a number of studies in which particular features of substantivelaw are considered in comparative terms.

The most distinctivefeature of these studies (taken as a body—10.

Gluckman,

The Judicial Process Among the Barotse

of

Northern Rhodesia(1955) (hereinafter cited as Gluckman).

11. Hoebel,The Law of Primitive Man 335-49 (1954).

there are some exceptions) is that they represent manifestationsof a point of view that identifies anthropology as primarily, if notexclusively, a descriptive science. The observational skills of theindividual writers can vary substantially, but the goal implicitlyaccepted by virtually all of them is to make a photographic imageof the phenomena as they occur in the culture under examination.The methodological problems as they perceive them are the prob-lems of observation rather than the problems of inference, inter-pretation or theoretical conceptualization. There is, of course, al-ways the problem of inference implicit in any attempt to deter-mine legal rules on the basis of case histories or the informationgathered from informants. Typically, however, the inference isconsciously limited. The observation that in a particular situationdivorce occurs with social approval leads to the inference thatunder other "comparable" situations divorce will also be approved.At best, such studies can identify those characteristics of legal sit-uations that the members of the society deem to be generally andlegitimately relevant. At worst, they can artificially impose onthe interpretation of the culture the unique artifacts of Anglo-Saxon or European law. With varying success, they attempt acodification of the customary law.

Recently, an attempt has been made by Hoebel to draw to-gether several of the better case studies into a comparative treat-ment.12 Relying extensively on previous field work by himself andothers, Hoebel formulates several propositions concerning the his-torical development of law and the function of law in society.However, except for a few points in terminology, Hoebel does notrelate his book and the empirical information contained in it tothe tradition of legal inquiry into the legal process that has re-cently been dominant within the ranks of the practitioners ofthe art.

To be sure, the Darwinism of Hoebel does reflect intereststhat have motivated legal scholars. Maine is the most obviousname that comes to mind.13 And the interest in the function oflaw crops out frequently in legal literature—usually in a quasi-sociological, quasi-definitional, quasi-rationalizing way. But onecan distinguish such general interests from the more specific in-tellectual debates that fill contemporary law journals. These lat-

12. Id. at 1-333.13. Maine, Ancient Law (1861).

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ter discussions have been more concentrated on disputations over"sociological jurisprudence," "legal realism" and related aspectsof applied positivism.

Legal scholarship of this variety has been sharply impaled onthe goal of a normative solution to legal procedures. As in severalother social sciences, most notably economics and political science,legal study has sought to understand the processes involved pri-marily in order to perfect them. Moreover, to paraphrase a re-mark made originally about studies of another institution, moststudies of the judicial process have been made by individuals whoeither are, have been or wish they were judges. As a consequence,one must be somewhat careful about stating the character of themajor disputes involved in contemporary legal theory and par-ticularly to distinguish between the empirical and the normativeaspects of those disputes. What is (or ought to be) the role of so-cial attitudes in judicial determination? What is (or ought to be)theconception of "justice" held by judges? By non-judges ? Is thelaw (ought it to be) certain in its applications ? In general, whatare (or ought to be) the factors involved in judicial decision-making?

Thus, we can distinguish what might be called the theory ofjurisprudence, or judicial determination, from theories of the his-tory and function of law as a social institution. In general, cur-rent interest in the legal profession appears to be focused on theformer rather than on the latter. And from this point of view,Professor Gluckman's book is both more relevant to the studentof legal processes and also a more ambitious attempt to span thegapbetween the legal theorist and the sociologist than is the workof Professor Hoebel. To whatever extent successful, ProfessorGluckman seeks to apply his own intellect to the problems ofjurisprudence against the backdrop of a specific case study ofBarotse legal institutions.

Although one may perhaps quarrel with the judgment, it isnot hard to see how A. L. Goodhart could, in good conscience,write in the foreword to the Gluckman study that "no legal phi-losophy, however pure or abstract, will in the future be able todisregard the facts which he has presented in so clear and con-vincing a manner."14 The author himself is appropriately moremodest but notes that "most anthropological studies of law seem

14. Gluckman xvii.

to me to have overlooked basic jurisprudential points." 15 Thejudgment, with the usual mild exceptions, is correct. As a result,despite its title, The Judicial Process Among the Barotse is morethan just one more addition to a catalog of anthropological casestudies and raises more problems of genuine interest to legal the-ory than a typical anthropological study. It warrants considera-tion both on the level of an examination of the Barotse and on thelevel of jurisprudence.

IIAs a case study, the study reflects research Professor Gluckman

executed on field trips to Northern Rhodesia in 1940, 1942, 1944and 1947. Its focus is on the central political-legal institution ofthe Lozi, the dominant group among the Barotse. This institutionis the council, or kuta. Since so much of the discussion here de-pends on the character of this institution, it may be warranted tospend some time describing its constitution and operation. In fact,there exists a hierarchy of kutas through which appeals lie to themain kuta at one of the main capitals of the kingdom. However,for our purposes it will suffice to describe one of the main kutassince the important characteristics of their regional counterpartsare similar.

A kuta, which is not simply a court since it has—or constitu-ent parts of it haye—both administrative and legislative functionsto perform, consists of a group of office-holders who hold theirpositions in the kuta by virtue of their offices (to which they arenamed by the king acting in council) rather than specifically byvirtue of attributes of their person. In general, there are three setsof councilors represented: First, there is a group of political lead-ers with wide general functions and powers, the indunas. Thehighest ranking induna is head of the kuta and (aside from theking) clearly the most powerful man in the group. Second, thereare a number of "stewards," less powerful but still important in-dividuals with more specific primary responsibilities concernedwith the royal household. Third, there are the royal princes.

Case procedure can best be described in Professor Gluckman'sown brief summary:

The litigants, supported by their witnesses and kinsmen, sit beforethe judges against the posts which hold up the roof. The plaintiff, with-15. Id. at xxi.

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out interruption, states his case with full and seemingly irrelevant detail.The defendant replies similarly. Their witnesses, who have heard theirstatements, then speak. There are no lawyers to represent the parties.The kuta, assisted by anyone present, proceeds to cross-examineand topit the parties and witnesses against one another. When all the evidencehas been heard, the lowest induna on the right gives the first judgment.He is then followed by councillors on the three mats (indunas, princes,and stewards) in ascending order of seniority across from one mat tothe other, until the senior councillor-of-the-right gives the final judg-ment. This is then referred to the ruler of the capital, who confirms,rejects, or alters it, or refers it back to the kuta for further investigationand discussion. It is this final judgment by the last induna to speakwhich, subject to the ruler's approval, is binding. 16

It is in the context of this specific institution that ProfessorGluckman examines the judicial process of this particular societyand against which he considers some central issues of legal theory.Since "process" is one of the magic words of contemporary socialscience, it is necessary to make specific what he means by the ju-dicial process before one can anticipate adequately the foci of hisattentions. This is particularly true because although the phraseis borrowed in its entirety from Cardozo17 and used in approxi-mately the sense in which Cardozo used it, it represents a dis-tinctly different type of interest than most sociologists, I daresay,would expect. By the judicial process Professor Gluckman meansthe mode of reasoning by which the kuta makes a judicial deter-mination. This is clear both when he makes an explicit definition18

and where he differentiates it from an interest in judicialpractice; 19

it also seems to be the importof his somewhat more obscurediscus-sions of the functions of the process.20

In general, the goal is to identify a "system" of rules—somelogical—which can "explain" the decisions reached by the kuta.Gluckman does not state his task in precisely those terms, but itseems fair to characterize it in such a manner. To what extent herecognizes the somewhat ambiguous position in which this placeshim as a student of human behavior is never quite clear. He con-sistently eschews recourse to anything except explicit motivationalstatements. Thus, the at-first-blush paralyzing observation that is

16. Id. at 15.17. Cardozo,The Nature of the Judicial Process (1928).18. Gluckman 218.19. Id. at 32-33.

20. Id. at 24, 49.

made concerning his rules of motivational inference has to be ex-amined in the light of his object.

As . . . [the significance of the case for certain royal rights] did notcome to my mind, I feel it was not present in the minds of either judgesor litigants. The sister and their sons did not plead this as a reason thatthey be allowed to fish the dams: and I therefore consider that we mayconclude it was not significant in influencing the judges' decisions.21

Taken at face value, this is an incredible statement unless one iswilling to reject out of hand virtually everything that is knownabout human motivation.22 Actually, in this case it is simply anexplicit statement of the author's decision not to go beyond themanifest explanations for their behavior that the judges provide.Some of the other directions in which Gluckman might have goneare indicated below, but it is not the intentionhere to criticize thewriter simply because he focused upon other aspects of the judicialdecision-making than I might have. The intention, in fact, is quitethe reverse. In order to meet the author on his own ground, it isnecessary to be quite clear what he did and did not intend tointerpret in his work. From Professor Gluckman's definition ofthe judicial process, it is plain that he operates in an area muchcloser to traditional legal theory than one would ordinarily antici-pate in a volume such as this, and further from the currents of be-havior theory.

To explore the judicial process as thus defined Professor Gluck-man utilized two standard techniques of anthropological field re-search. He observed directly the actions of the kuta in a numberof specific cases tried before it during his stay in Loziland. Thus,he attempted to record a complete transcript of a trial before thekuta—the pleadings, the testimony of witnesses, the examinationby the judges and the opinions as they were offered. This, as hepoints out, was notordinarily an easy task since, even ignoring theconsiderable language barrier, the transcription of spoken Lozi byhand (and without the benefit of shorthand) involves one in sometype of condensation. The records of the trials that are presentedin the book suffer from this problem; but they still represent amajor advance over the type of casereporting that typifies early ex-cursions of anthropologists into native courts.

21. Id. at 195.22. For an introduction to the literature on motivation, see Studies in Motivation

(McClelland cd. 1955).

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In addition to direct observation, Professor Gluckman relied onsummaries of cases given to him by tribal informants and (to amuch smaller degree) on responses to direct questions. As hepoints out, many of the studies of primitive law rely precisely onsuch summaries. But in the single case in which he makes a de-tailed comparison between the record of a trial as he made it andthe summary provided him by a Lozi informant, there are strikingdifferences in the narratives.23 The complicated question of per-ceptual bias that arises in this case need not be explored here indetail. Professor Gluckman is aware of the difficulties he faces inthe analysis of his material, and his discussion is suitably cautiouswith respect to the persuasiveness of the data he presents.

In general, therefore, the methodology of observation and theinterpretation of data is well above the acceptable level in anthro-pological research. The data give evidence of being carefully col-lected, carefully evaluated and carefully presented. It is true thatProfessor Gluckman, like many students of primitive people, ap-pears to have identified closely with his subjects, a fact which drawshim into occasional statements about which a less involved personmight have exhibited less certainty.24 But, in general, the rose-colored glasses appear to affect primarily the obiter dicta of thebook rather than the meatof its conclusions.

As a case study of the Barotse, therefore, the book is both aninteresting and important contribution to legal ethnology. Inso-far as one can judge from the text itself, it represents a judiciousportrait of the Barotse kuta and its operation. As has been alreadyindicated, however, the major import of the work is more thanthis. It represents an important attempt by a professionally trainedanthropologist to elucidate the study of jurisprudence. This re-viewer will perhaps be excused, therefore, if he devotes the re-mainder of his discussion notto the unique attributes of theBarotseand Professor Gluckman's description of them but rather to themajor problems in jurisprudence that he raises and to the answershe suggests.

11lWhat are these major problems ? Noone would be so foolish as

to suggest the possibility of arriving at an exhaustive list of areas23. Gluckman 52-53.24. Id. at 210, 212.

important in recent legal inquiry. The fundamental and/or eso-teric debates that form the basis for those papers in legal journalsthat are not exhaustingly technical represent a broad range of in-terests ; a fairly unsystematic search of them suggests the difficultyof providing a universally acknowledged definition of major foci.The well-read lawyer, if not an expert in any field, is at least anovice in many.

Nevertheless, there are some recurrent themes in recent treat-ments of jurisprudence that are sufficiently distinct as to be identi-fiably important. Not all of these themes are considered by Pro-fessor Gluckman, buta number of them are. In particular, the onesconsidered by him fall into a constellation of interests related toidentifying the rules of judicial determination. Let me identifyfive problems that seem to me to include the major argumentsmade by Gluckman in his application of the Barotse data to thetheory of jurisprudence.

Problem No. 1 : To what extent are the features of the judicialprocess and legal reasoning invariant throughout the cultures ofthe world? Insofar as we can exhibit invariances we can claim areasonable a priori case for the functional necessity of the pro-cedures.

Problem No. 2: What is the role of certainty and uncertaintyin the judicial process ? The lawyer, in company with many othersocial scientists, is reluctant to abandon the "richness" of ambig-uous concepts.25

Problem No. 3: Is there room in a modern theory of judicialdetermination for such concepts as "justice" and "The Law"?The idealistic formulation of legal reasoning in terms of such con-cepts has recently been defended with renewed vigor against thepositivist attack.26

Problem No. 4: Granting that the norms of society do enterinto judicial decision-making, specifically how do they enter?Until such specifics of application are defined neither the em-pirical nor the normative propositions implicit in sociologicaljurisprudence can have particular impact.

Problem No. 5: What are the relevant questions that researchinto the judicial process ought to answer? With the increasing

25. See, e.g., Levi, An Introduction to Legal Reasoning (1949).26. See,

e.g.,

D'Entreves, Natural Law (1951); Kessler, Natural Law, Justice andDemocracy, 19 Tul. L. Rev. 32 (1944).

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interest in research into the actual operation of legal institutions,the time is appropriate for an examination of the types of questionsthat can be properly and productively examined in such research.

I wish to examine each of these problems in turn in the re-maining sections of this review.

IVThe day when it was fashionable—or even permissible—for

one to dismiss casually the whole study of primitive societies asirrelevant for the analysis of contemporary institutions has, I trust,passed. In recent years careful comparative studies of primitivecultures have tested hypotheses based on, and generated newpropositions for, other types of research.27 There is no reason tobelieve that legal institutions will not also be successfully analyzedby means of the same techniques. Insofar as this is possible, it willinvolve the establishment of connections between specific prac-tices, institutions, etc. in primitive cultures and in contemporarysocieties. It will involve identifying a specific phenomenon in oneculture and providing a rationale for believing that it is compar-able to another specific phenomenon in the culture being com-pared. The student of comparative legal institutions and practiceswishes, therefore, to be able to describe the extent of similaritybetween different cultures in terms of their legal systems.

Professor Gluckman's study is not a major comparative study,but it does make a comparative analysis of the Barotse system onthe one hand and the Anglo-Saxon and Roman systems on theother. And it does make some general propositions on the basisof comparison. In particular, Gluckman argues: "On the whole,it is true to say that the Lozi judicial process corresponds with,more than it differs from, the judicial process in Western soci-ety."28 Since such a proposition raises some basic problems incomparative anthropology and comparative law, I think it war-rants close attention. The sentence quoted above is the secondsentence in Professor Gluckman's concluding chapter. Similarsentiments are echoed in the foreword by A. L. Goodhart and inthe squib on the fly-leaf of the book jacket. It is an appealinghypothesis that there exists a basic similarity between these two

27. See, e.g., Simmons, The Role of the Aged in Primitive Society (1945);Whiting

&

Child, Child TrainingandPersonality (1953).28. Gluckman357.

apparently quite different cultures. Against the claims of culturalrelativism, one can now cite the facts of intercultural similarity.It is so appealing that Professor Gluckman appears to be carriedaway at one point when he writes, "I am delighted in every waythat this report bears witness to some similarities of social lifeeverywhere, and to the basic similarity of all human beings invery varied conditions."29

What are the similarities on the strength of which the basic iso-morphism between the Barotse judicial process and that of West-ern societies is established? First, Lozi judges utilize the samesources of law as those appealed to by Western judges. They relyon statute, legal precedent, social custom, natural laws and con-ceptions of equity. The statutes (excluding those of the Britishwhich fall into a special case) are largely unwritten but, at leastthe major ones, are recognized as specific statutory law to be inter-preted and followed. Precedents includeprevious decisions of thekutas and specific instances of praiseworthy behavior on the partof individuals. The former are not recorded and tend to be re-membered only vaguely. The latter tend to be of considerableimportance.

Second, they utilize a series of rules comparable to standardrules of Western court procedure. They receive testimony fromthe parties under criteria of relevance, credibility and cogency.They distinguish direct, circumstantial and hearsay evidence.They insist that both sides be heard in court.

Third, they utilize a number of judgmental criteria and pre-sumptions well known to Western law. The concept of the "rea-sonable man" permeates the system. They do not recognize ac-tion arising from an immoral agreement and leave the parties asthey stand in cases of equal guilt. In general, they operate undera presumption of innocence in criminal or quasi-criminal cases.

On the other hand, another impressive list of differences be-tween Western law and the procedures and law of the Barotse canalso be found in Professor Gluckman's description. The law onwhich they rely is largely unwritten. They have little statutoryinterpretation in the Western sense. Cases are heard without bene-fit of counsel and without formal pleadings. There is no fictionof judicial ignorance. The rules of relevancy pertaining to evi-dence are substantially different from the rules of Western courts.

29. Id. at 327.

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510

In the light of these similarities and differences, what can besaid concerning Professor Gluckman's judgment that the Barotsejudicial process is more like Western systems than it is different ?I wish to argue twopoints. First, the proposition itself is in prin-ciple an extremely tenuous one and borders on meaninglessness.Second, the evidence cited by the author gives only weak supportto the proposition when it is put into meaningful form.

What does it mean to say that object A is more like object Bthan it is unlike object B ? Let me pursue this question by posinga specific example. I will advance the followingproposition: Onthe whole, it is true to say that an umbrella corresponds with,more than it differs from, a blackboard. In support of the propo-sition, I can note that there are three fundamental similarities be-tween an umbrella and a blackboard. First, they are both manu-factured. They do not grow naturally nor can their growth bestimulated by artificial means. Although the process of manufac-ture differs in detail in the two cases, it involves in both cases thetransformation of raw materials into a finished product. Second,both an umbrella and a blackboard are primarily utilitarian inuse. It is true that the aesthetic qualities of umbrellas and black-boards are sometimes noted, but in neither case is an aestheticraison d'etre claimed. Third, both objects are essentially two-state objects. An umbrella can be either up or down; a black-board either written on or erased. Other comparatively minorsimilarities might be added.

On the other hand, it is true that in some relatively unimpor-tant respects the umbrella and the blackboard differ. The spe-cific use by means of which their utilitarian character is mani-fested differs somewhat. Ordinary umbrellas are typically a dif-ferent size from ordinary blackboards and almost always assumea different general shape. A blackboard is usually heavier thanan umbrella.

The point need not be labored. Between any two objects onecan cite a whole class of similarities and dissimilarities. Similarlybetween any two legal systems one can identify any number ofsimilarities and any number of dissimilarities. To form a plaus-ible-sounding case for the converse of Professor Gluckman's prop-osition one need change not a single bit of the evidence he ad-duces. All that is necessary is to alter slightly the literary form ofthe presentation.

In part, this is unfair toProfessor Gluckman's point, however,since the author introduces another factor in support of his posi-tion that the similarities are more fundamental than the differ-ences. The argument30 can beparaphrased as follows: In studyingthe Barotse, an attempt was made to identify the fundamentalcharacteristics of the system. Independently, others have attemptedthe same job with respect to Western systems, particularly in theUnited States. Not only, Professor Gluckman argues, do I find aset of similarities between the two systems but I also find thatthose similarities occur on characteristics that have independentlybeen deemed basic to the respective systems.

Put in terms of the umbrella-blackboard example the argumentis that if two independent judges characterized the importantaspects of these objects and then compared notes, and if they thenfound similarities between these important aspects, a more sig-nificant result would be obtained than in the case of arbitrarylisting by a single observer of similarities and dissimilarities. Theargument, of course, has merit; but one must be a bit cautious indefining the nature of that merit. The reported fundamentalattributes of an object are clearly a function of the observer aswell as the object. One can almost conceive of two economistsindependently characterizing the umbrella and the blackboardand arriving at a description of fundamental attributes that wouldbe quite consistent with the earlier discussion with respect to theirbasic similarity, since the attributes cited above "fit" into thestandard economic categories. But if the objects were describedby two psychiatrists, one can just as easily imagine arriving atquite the opposite conclusion since the latent sexual symbolism inthe umbrella is striking whereas little comparable symbolic im-port is manifest in the blackboard.

Thus, the proposition is relative to the frame of reference ofthe observers. Moreover, in order for it to be legitimate even tothat extentcertain conditions must be met. "Important" and "un-important" attributes must be unambiguously identified by theindependent observers. Agreement must be general throughoutthe "important" attributes, notrestricted to a few of them. In thepresent case, it is not at all clear that either condition is success-fully met.

For the moment, however, let us suppose that the comparison30. Ibid.

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was made much more carefully than it, in fact, was. Let us sup-pose that Gluckman and Cardozo agreed, in advance, on a set ofattributes with respect towhich they would examine the two sys-tems—Barotse and American. And let us suppose that they agreed,in advance, on a set of weights to be attached to these various ob-servations. Then within those constraints they could give somemeaning to a proposition that implied quantitative features to atwo-object comparison. Although it is not logically necessary, onewould normally expect that the attributes would be of such acharacter that it would be possible to imagine a system that didnot conform to them. If the attributes are so general as to permitany set of facts to be made to conform to them, the meaning of"similarity" tends to vacuousness.

It is on this latter score that Professor Gluckman runs intofurther difficulty even after otherproblems are assumed away. Herecognizes the fact that on the basis of surface characteristics it isnot obvious that the similarities between Barotse proceedings andWestern proceedings are dominant over the dissimilarities. Con-sequently, he seeks to probe deeper and go beyond such "super-ficialities." In particular, he seeks to define the inherent "logic"of the system. Most generally, the logic he discovers is that inLozi courts certain antecedent conditions (which can be called"facts") are transformed by certain rules (which can be called"laws") into outcomes (which can be called "decisions"). Indeed,he finds that this process seems to be implicit in many processesthat are not usually considered as judicial in nature.31 But Gluck-man has cut toodeep. Not only does his "logic" cover the cases hecites, but it alsocovers, or can be made tocover, the specific counter-example he mentions32 and indeed virtually any decision-makingprocess one wants to identify. Recently, students of decision-making have been pointing out that there are analytical similari-ties between a wide range of types of decisions.33 These similari-ties bear a substantial resemblance to the similarities that Gluck-man pinpoints. If "precedent" can be expanded to include in-

31. Id. at 224-25.32. Id. at 225. The case suggested is one in which one party can prevail simply by

stating unilaterally a right and defending it by force. In such a case the "facts" are thatPartyA claims X. The "rule of law" is that if A (being a party with superior force) claimsX, he gets it. The "decision" is that A gets X.

33. See,

e.g.,

Bross, Design for Decision (1953); Savage, The Foundations ofStatistics (1954); Decision Processes (Thrall, Coombs & Davis eds. 1954); Wiener,Cybernetics (1948); Edwards, The Theory oi Decision-Making, 51 Psych. Bull. 380(1954).

stances of praiseworthy behavior on the part of members of thesociety, it can certainly cover also the prior experience of a rat ina T-maze.

That these similarities between different decision-making sit-uations are important for decision theory is true despite the ex-treme generality of their formulations. But one should be hesi-tant about using them to prove important propositions. Theirstatus is rather that of underlying analytical categories. When-ever we observe a decision-making situation, we will attempt toidentify certain specific attributes of that situation that can betreated as instances of a particular type of variable. Thus, we ob-serve whether in one system what has been identified as a "prece-dent" contributes to the outcome in the same manner as what hasbeen observed in another system. To take a somewhat compar-able case from the physical world, it is quite important for theorythat both mass and distancecan be expressed in terms of real num-bers ; and once they are so expressed, they can both be subjected tothe same mathematical operations. But one would feel constrainedto put severe limitations on the proposition that, therefore, massand distance are basically similar. They are, but in a very specialway which makes each in turn also basically similar to any otherattribute that is open to real number measure.

The point to all this is not simply that a specific book appearsto be weak in this respect. Rather it is that there is a basic issuein the methodology of comparative anthropology or comparativejurisprudence that warrants some discussion. First, a compara-tive science must escape from the tyranny of "essences." At asuitable level of generality all things are "essentially the same."An attribute that does not differentiate among the objects beingexamined has some uses of the type previously indicated; but formany of the purposes to which we ordinarily apply comparativeanalysis, it is useless. For example, the "logic" of the decision-making process does not provide an answer to the following ques-tion: Which is more like Western judicial decision-making—theBarotse judicial system or an IBM 701 electronic computer? Ingeneral, in comparative analysis we wish to be able to scale itemsin terms of their similarity to a standard item. This means thatalthough we may feel a desire to avoid simple-minded compari-sons of obvious explicit characteristics, a flight to too great gen-erality vitiates the entire project.

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Second, comparisons in comparative jurisprudence (as in anyother comparative science) arerelative to a specific list of attributes.There are an infinite number of possible properties on which ob-jects can be compared out of which typically only a quite limitednumber are (or can be) chosen. Stated thus baldly, the statementseems trivial. Yet it is violated repeatedly not only in the bookpresently under discussion but also in a variety of other compara-tive studies. The English scholar cites a long list of linguistic sim-ilarities between sections of Chaucer and an obscure French poetand concludes that Chaucer must have read the French writer'sworks. The economist reports a number of isomorphisms betweenthe business statistics of 1927-28 and 1947-48 and makes an ap-propriate prediction. Examples could be multiplied easily.

One of the reasons why comparative jurisprudence is notalways entirely satisfactory is that there is little agreement on whatare the relevant attributes on which to make a comparison. This,in turn, seems to stem from ambiguity about what is to be donewith the comparison after it is made. Depending on one's atti-tude toward such things, thereaction to being told that things are"basically similar" may be joy,nausea or some intermediate senti-ment; but ordinarily such stimulation of affect is not thereason forpursuing the comparison. So long as the motivating force issimply intellectual curiosity, any set of attributes will satisfy aswell as any other. But if we have any long-run pretensions to thepursuit of knowledge, the comparison process serves primarilyas a mode of establishing a ranking of items in terms of a specificvariable that enters into a theoretical scheme. Since students ofcomparative jurisprudenceare not always explicit in theirresearchgoals, they have difficulty in anchoring the set of attributes onwhich they compare systems to a suitable rationale.

VAlthough the comparative aspects of Professor Gluckman's

book are important, much of the discussion of basic legal prob-lems can be treated without any specific reference to the problemsof comparative analysis. Among these, one of the major contribu-tions attempted is an examination of the roles of certainty anduncertainty in the judicial process. The basic proposition is thatthe certainty of the law is maintained by the uncertainty of itsconcepts, and considerable time and effort are devoted to this

paradox. As Professor Gluckman points out, the problems asso-ciated with the ambiguity of central concepts in law have con-cerned students of jurisprudence for many years. On that score,if on no other, his attempt to resolve the problem deserves atten-tion.

Before proceeding to a consideration of the elements of Pro-fessor Gluckman's analysis, however, a brief note is in order sinceit may shed light on some of the peculiarities of that analysis. Likemany other scholars, Professor Gluckman has what might becalled a passion for paradoxes. In the present work, in additionto the proposition above, we are told that the Barotse have a con-ception not only of the reasonable, ordinary man but also of the"reasonable wrongdoer";34 and that because in thekuta legislatureand court are inseparably bound, a complete dichotomy is madebetween legislation and adjudication.36 In another work, Pro-fessor Gluckman has argued that frequently peace is maintainedthrough ceremonial violence.36 There is nothing wrongwith para-doxes; one is quite prepared to believe that something appealingmost strongly to one's common sense is more common than sensi-cal. But because of the strength of their appeal, paradoxes mustalways be somewhat suspect. They are a bit like the surprise end-ing in the mystery story. Improbable things do happen, but theyare improbable. Consequently, one is justified in being somewhatskeptical when one suspects that this most appealing disease hasinfected a scholar.

With such preliminaries aside, we can consider the Gluckmanthesis. It faces up to the dilemma that has often plagued legaltheorists. The dilemma can be stated in two propositions aboutthe beliefs of participants in a society that Professor Gluckmanshows are as common among the Barotse as they appear to be inWestern societies. First, it is widely believed and frequently statedamong laymen that the principles of law are well known, at leastamong lawyers and/or judges, precise and unchanging.37 As withmany beliefs held by laymen about a specialized sector ofsociety, this belief has been recorded by practitioners in the fieldwith a mixture of reverence and cynicism. 88 Legal scholars have

34. Gluckman 137.35. Id. at 254.36. Gluckman, Rituals

of

Rebellion in South-East Africa (1954).37. Frank, Law and the Modern Mind (1930).38. Ibid.; Herbert, Uncommon Law (1936).

516

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been most hesitant in recording unambiguous judgments on thewisdom of such beliefs on the part of laymen, and the society oflegal technicians taken as a group has certainly never presented aunited front on the question. Second, it is widely believed andfrequently stated that the outcome of specific legal litigation ischancy. In terms of the facts that are ordinarily considered rele-vant by a lawyer (i.e., the facts that might go into a legal brief),theresult of legal action is predictable onlywithin very large limitsof error. In short, law is both certain and uncertain.

As Professor Gluckman points out, a number of students ofjurisprudence have commented in wonderment at the way inwhich those legal concepts that are prima facie most fundamentalare also the most general and vague in their definition. 89 Others,belonging primarily to the realist school, have made a full scaleattack on the ambiguity of basic legal concepts.40 Professor Gluck-man's position is neither. As he writes,

At least the juristic sociologist—and the sociological jurist—cannotmerely castigate semantic weakness in forensic argument: he must ex-amine the role of these obscurities in the social process. They may begenerally—as often they are patently, politically—useful. It may be thatthe very nature of the judicial process prevented judges from adoptingwholesale Hohfeld's attempt to clarify the conception of rights and duties,though this would not deny its value for jurisprudential analysis.41

It is Professor Gluckman's contention that the generality ofconcepts and the uncertainty of application have an importantfunction in legal reasoning. He argues that it is possible to con-struct a hierarchy of concepts within a system of legal reasoningsuch as either that of the Barotse or that of Western society. Eachconcept at a given level secures its operational meaning from con-cepts at a lower level that are attached to it in a specific case. Con-sider, for example, the definition of "domicile" in Anglo-Saxonlaw. The case is analogous to therelationship between pure math-ematics and applied mathematics. Pure mathematics exists as alogical system subject to the rules of logic but not open to changeon the basis of empirical data. Applied mathematics, however,requires the specification of a set of critical correspondences be-tween observable phenomena and formal items in the mathe-

39. Gluckman305 n.l.40. Ibid.41. Id. at 330.

matical analysis. The "fit" of the empirical world to the mathe-matical model is subject to investigation and a particular modelmay be rejected as not "fitting," although the mathematics of themodel itself is not thereby questioned. The same model or math-ematical proof may be given any number of empirical referents.

In the social sciences a number of such "certain" concepts ofmultitudinous reference can be found. In economics, the con-cept of profit maximization in the theory of the firm is of thischaracter. In psychology, the Benthamite pleasure-pain calculusand its more modern counterparts tend to be of this character.The concept of freedom in political science, of reference groupin sociology and of diffusion in anthropology frequently tend tobe in each case the sanctum sanctorum of a system of analysis. Likelegal concepts, each of these concepts maintains itself in part bythe ease with which it assimilates unto itself as many empiricalreferents as are necessary tokeep thepropositions utilizing the con-cepts inviolate.

With respect to legal concepts, the point has been made be-fore. It is frequently alleged, for example, that one of the reasonsfor the survival of the United States Constitution lies in the gen-erality of its language.42 The argument probably has some merit,though it occasionally lapses into an excessively legalistic analysisof historical events. More generally, as Professor Gluckman pointsout, in a legal system—as in any analytical system that comes veryeasily to mmd—we can distinguish rules for determining whatpart of the system has tobe sacrificed in the face of difficulty. Oneof the foundations for uncertainty in litigation is that the identi-fication of specific referents for the basic concepts is not given thesame sanctity that the basic rules are afforded. One of the conse-quences of this uncertainty is that the need to alter the basic rulesarises only rarely. In this way, the basic rules are "certain" andthe Gluckman thesis is correct.

In two respects, however, the seductiveness of the paradoxtends to conceal its meaning. The first arises from the somewhatunusual notions of "certainty" that are involved. When we sayin this context that the basic legal rules are certain although theirspecific referents are indeterminant, what have we said? Spe-cifically, what is certain? Consider one of the better known ex-amples of legal uncertainty—the fourteenth amendment to the

42. See,

e.g.,

Brogan, Politics in America 33 (1954).

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United States Constitution, in particular the clause: ". . . norshall any state deprive any personof life, liberty, or property, with-out due process of law." This particular rule is "certain." Nocourt will negate it. However, as any person even mildly inter-ested in constitutional interpretation can report, the concepts of"person," "deprive," "property" and "due process of law" haveall had long histories of uncertainty with respect to their referents.The rule that is certain, therefore, can be rephrased as follows:"No v/ shall be x of y without z, where w, x, y, z can assume anyvalues within a wide range." The due process rule can do mostwondrous things without changing its literary form.

The semantic attack on legalisms is well known, and ProfessorGluckman properly points out that the sociologist's objective isto explore the consequences of these verbal ambiguitiesrather thanpoke fun at them. But his analysis suffers from his failure to pur-sue it beyond this point. Granting that one of the consequencesof uncertainties at the level of specific cases is that judges andlawyers can mouth the same words ad infinitum, so what? Iwould suggest that the "paradox" is either itself a play on wordsor simply a proposition in phraseology. My suspicions that it isthe former stem from the fact that Professor Gluckman does notpursue the implications of the stability of phraseology and froma revealing concluding observation by him. "I hope my flexibleuse of 'certainty' here does not negate entirely the value, or theresolution, of this paradox." 43 For reasons perhaps related to theparadoxitis previously mentioned Professor Gluckman has beeninduced to enter into a discussion that makes sense only as it mir-rors at the conscious level the unconscious motivations of the legalprofession. Consequently, although his analysis is based on asound treatment of the interplay between basic concepts and em-pirical referents, his conclusion is couched in terms of a problemthat is virtually meaningless.

The second way in which the general discussion of this "para-dox" in the context of the social role of legal ambiguity leads tounwarranted conclusions stems from the obscurities of functionalanalysis.44 Since he is considerably more careful in this respect

43. Gluckman 326.44. Books and notes on functional analysis can be found throughout recent anthro-

pological and sociological literature, starting with the works of Malinowski and Radcliffc-Brown. For a useful introduction to the pitfalls of

functionalism,

see Merton, Manifestand Latent Functions, in Social Theory and Social Structure 21 (1949).

than are many persons operating in the same tradition, ProfessorGluckman should notbe considered as the major object of thesecomments; although some of his remarks are subject to unfortu-nate misinterpretations by the unwary.

Imagine that we are given a social system (e.g., a nation-state)which, in order to survive, must satisfy certain requirements speci-fied by its environment. As observers of this social system, we canperhaps identify these requirements and the institutions throughwhich they are met. We can then say that thefunction of an insti-tution from the point of view of the society is the satisfaction of aparticular survival requirement. Similarly, we can identify some-times the functional needs of any given institution (/._%, those re-quirements that must be met for it to survive as an institution)and the mechanics by which they are met. However, sloppy lin-guistic habits plus an underlying rationalistic bias can transformthis reasonable analysis into a series of unjustified statements.

A full discussion of the problems of functional sociology isnot in order here, but one specific type of fallacy requires discus-sion because it is one into which participants and students of thelegal process can easily fall. Professor Gluckman's propositionsabout the interrelationship between concepts and referents arefunctional statements with respect to the survival requirements ofspecific legal institutions. Although he never presents his propo-sitions in quite this form, I think it is fair to him to state hispropo-sition as being that flexible uncertainty in legal concepts is a neces-sary condition for the survival of legal institutions. Note that thisis not the same proposition as one with which it might be con-fused, towit, that flexibility in law is a necessary condition for thesurvival of the society. Professor Gluckman occasionally appearstoconfuse these two propositions,46 but his evidence bears only onthe first—not on the second. To cite a somewhat inflammatoryanalogy, if we can imagine a disease that makes the consumptionof human flesh mandatory for the survival of an individual in-flicted, it would be legitimate to say that such a diet was func-tional from the point of view of the individual. But it does notappear to follow directly that cannibalism would be functionalfor the society to which the individual was attached.

The second type of confusion that lurks beneath the discussionof legal adaptability is equally striking. Even if we conclude that

45. Gluckman 330, 333.

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flexibility in law is necessary for the survival of society, it does notnecessarily follow that the specific institutions we observe fulfillingthis function in a particular time and place are the only institu-tions that can do so. The functional necessity of institutions is anextremely difficult proposition to establish. Even if cannibalismis functional for a society, it is not obvious whether judges shouldprepare the menu or be on it.

This last point is important in view of the implicit assumptionsone encounters in the literature of sociological jurisprudence andlegal realism. I daresay most people would probably concede thatflexibility in the norms of relationships between members of asociety is both necessary and desirable. I do not mean to implythat there is no disagreement on this point or even that the properposition is trivially obvious. But it does seem to me that there arefew current writers who argue that society should have no mech-anisms for effecting changes in the system. Nevertheless, the bur-den of the argumentation among recent legal scholars appears tobe on this point.48 This in itself is not particularly significant ex-cept insofar as the evidence on this point is taken as evidence forthe quite separate point that the judicial system should form aconscious mechanism for inducing change. 47 It probably is nottrue that all that lies between Western society and damnation arethe courts. It may not be truethat the courts form the best defenseagainst damnation. Worst of all, it may not even be true that aconscious contribution on the part of the courts is even a positiveaid to that defense. In the long run, society may be better off ifthe courts behave more like automatons and less like gods eventhough society requires somewhat different behavior somewherein the system.

I do not mean tocommit myself (having learned the danger ofcommitment long ago) on the question raised above. It does seemimportant, however, to insist that functional analysis such as thatpracticed by Professor Gluckman and the quasi-functional argu-ments of recent legal scholars be closely defined. The languageof such studies is so appealing—and so ambiguous—that it fre-quently confuses basic issues in jurisprudence.

46. See, e.g., Lasswell, Legal Education and Public Policy, in The Analysis ofPolitical Behavior 21 (1948), and the works cited therein.

47. Ibid. See also Frankfurter, The Zeitgeist and the Judiciary, in Law and Pol-itics 3 (1939).

VI

If onerestricts his attentionto only certain parts of the Gluck-man thesis, much of what has been said does not apply to him.What is unfortunate about the volume is that unexceptionablestatements gradually slip over into questionable judgments andirrelevant dicta. This becomes quite clear when one considers theextension of the certainty-uncertainty analysis into a discussion of"justice" and "The Law." Professor Gluckman argues that Car-dozo has failed to distinguish two different tasks performed byjudges, the first being the support of "The Law" and the secondthe giving of "justice" in specific cases.48 His problems arise inhis explication of "justice" and "The Law." These concepts per-meate the book, although explicit meanings for them must bepulled together from a number of passages and from the contextin which they are used.

The search for the ethical laws of nature has recently been re-instituted by natural lawphilosophers after a fairly brief period ofcontainment by positivist sentiments.49 Similarly, in anthropologythe extreme positions of cultural relativism are undergoing re-examination, and some attempts are being made to discern uni-versal ethical rules by means of comparative anthropology.50 InProfessor Gluckman's work one can literally see this strugglegoing on.

Let me illustrate this by reference to the statement about Car-dozo made above. What is meant by the "maintenance of 'TheLaw' "? I will suggest twopossible meanings, either one of whichwill find some support in the book under examination and in thegeneral literature of jurisprudence. First, "maintenance of 'TheLaw' " can mean the reinforcement of the popular belief in thecertainty and majesty of judicial pronouncements. On this show-ing, "The Law" is a myth, but a useful one from the point ofview of society and legal institutions. Even if it is not true, it isimportant tobelieve that there is something other than air in thegilt package labeled "Law." Second, "maintenance of 'The Law' "can mean the defense of a set of underlying ethical principles uponwhich the social order is based. As has been indicated above, Pro-

48. Gluckman 336.49. See note 26 supra.50.

See,

e.g., Feibleman, Introduction to an Objective Empirical Ethics, 55 Ethics 102

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fessor Gluckman's resolution of the certainty-uncertainty paradoxmakes very little sense at all if this second meaning is attached to"The Law."51 On the other hand, Professor Gluckman himselfis extremelyreluctant to embrace the first meaning.

Time after time in the book we are given testimony in supportof the fact that most people among the Lozi believe that thereexists a certain body of rules—"The Law"—that judges ought to,and usually do, enforce. Interestingly enough, almost all of thecitations on this point are made in the context of the reports ofthe uncertainty of litigation. 52 That is, the clear implication isthat despite all evidence to the contrary, people believe in "TheLaw." Moreover, this belief extends to the judges and influencestheir behavior.63 Members of the kuta believe that they shouldand do pursue "TheLaw"—even when they change itconsiderablytofit a particular case—and their behavior is different from what itwould be if they did not believe this to be their function. Thegeneral conclusion reached is that "the certainty of law in a stablesociety is a fact accepted by almost all members of the society."54

But somehow Professor Gluckman balks, at least partially, atthe Frank conclusion 55 that this reflects simply a widespreadmyth.58 The most explicit basis for his testimony is given in aseries of statements that I feel I must report verbatim for fear ofmisrepresenting them.

These propositions raise fundamental epistemological problems of howrules exist, in which I do not need, as an anthropologist, to become in-volved. I consider that it is sufficient for me to state that empirically law ,both in its most general sense as a corpus juris and also as particularlegal rules, influences the behavior of both Lozi judges and public. Therules of law arespoken in everyday relationships and in judgments, andsomeexist as widely known maxims. They form a large part of my fielddata. Indeed, it is a fact of everyday common-senseexperience that thereis law in the general sense as abody of rights and duties. As Durkheimsaid of religion in a similar context, "a human institution cannot restupon an error and a lie." 07

I will submit that the whole of the first part of this passage begsthe question it is designed to answer. There is little dispute (and

51. See pp. 517-18.wp._.52. Gluckman 203, 235.53. Id. at 234.54. Id. at 352.55. Frank, Law andthe Modern Mind (1930).56. Gluckman 348. But see id. at 353.57. Id. at 352.

certainly none from Frank) that people in general and judges inparticular believe that there is something called "Law" that existsin the abstract, that is certain despite the uncertainty of specific ap-plications, and to which obedience is due. That there are a set ofmaxims that are characterized as "TheLaw" few people will deny.But the essential point that Professor Gluckman wants to makeagainstFrank (since there is no argument at a different level) mustbe precisely an epistemological one. In fact, the striking featureof the series of sentences quoted above is that they begin by ab-juring the question of epistemology and conclude by attemptingto settle it by a short aphorism that given any halfway reasonableinterpretation is untrue and not representative of Durkheim toboot.

On his own evidence, Professor Gluckman simply cannot doanything but support the general position that he apparently findsdisagreeable. The result is a curious mixture of empirical gener-alizations concerning the Barotse with which one can take littleexception and ambiguous interpretations that one can only findsomewhat frustrating.

A similar malaise afflicts the treatmentof the concept of justice.Throughout the book it is argued both that the concepts "just"and "unjust" have meaning to the members of the society so thatthey can evaluate judges and decisions as being just or unjust andalso that such concepts have sufficient clear empirical content astopermit generalizations of the following sort: "I never heard, orrecorded for the past, an inequitable decision in favour of the pow-erful by the whole kuta."58 Is the concept of equity so precise as topermit one to offer such statements as meaningful ones ? In par-ticular, to what extent are judgments on the "justice" of court de-cisions simply convenient intra- and inter-personal devices foravoiding the conflict implicit in the enforcement of injustice ? In-sofar as they are the latter we should expect tofind that perceptionsof the justice of a decision would be primarily ex post with respectto the actual determination of the kuta. A most telling commentin this regard is Professor Gluckman's own observation on his per-ceptions: "Though I had made a detailed study ofLozi custom, asI sat in court I occasionally felt myself forced into thinking 'notproven,' or so bewildered that I could not sort out the truth. Al-

58. Id. at 218.

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most invariably as the judges expounded their reasons, I foundthese were sound."69

Suppose that you were to ask me at the close of a trial and be-fore the judgeor jury delivered a verdict, "What do you considerto be the relative justice of the possible verdicts?" And supposethat I replied that I could not say until after I had heard the court'sdecision. Could one notmake areasonable inferencethat my "senseof justice" was significantly dependent on the court's ruling? Ac-tually, Professor Gluckman reports that the Lozi are generallymore discriminating than he, and do distinguish "just" and "un-just" decisions. But he does not provide sufficient information onthese discriminations for one to determine what sorts of factors areat work. Consequently, the determinants of the sense of justicethat he reports remain ambiguous.

It is truethat where part of the judgmentprocess is thecreationof alternative verdicts, the ex post character of justice perceptionmay have more than one explanation. Judges may suggest alterna-tives that were not perceived, and therefore not evaluated, by theobservers; and Professor Gluckman presents some evidence forthis phenomenon. 60 But the whole phenomenon of rationaliza-tion through the perception of justice after the fact is one that en-tirely escapes the author's attention.

I do not mean to imply that a sort of moral nihilism isrequiredby the studentof the sense of justice; but it does seem "just" to insistthata certain amountof sophistication about the factors influencingindividual perceptions be reflected in treatments of this phenome-non of the judicial process. In this respect, as in many others, Pro-fessor Gluckman does substantially improve on the writings ofmany persons working in the same area. But, after all, that israther a weak standard; and we can legitimately insist on more.If I understand recent writers who wish to save the terms "Law"and "justice" from the positivist hell of meaninglessness, they donot intend to accomplish this feat by means of metaphysical wiz-ardry but rather through forms of analysis which, whilenot com-pletely acceptable to the empiricist, are at least more consistentwith his framework than earlier explications. It would be a taskwell worth doing if someone with such an orientation were to takethe data and impressions of Professor Gluckman and recast them

into a more consistent analysis of "justice" as a concept for juris-prudence.

VIIIf the discussion of the roles of "justice" and "TheLaw" in the

judicial decision-making process is unclear, most of the commentson the ways in which social norms impinge on judicial decisionsfortunately are not. Professor Gluckman is at his best when he isclosest to the empirical data with which he is familiar, and his in-vestigation of this feature of the Barotse system is quite rewarding.

It has now become quite customary to allege that courts aresensitive topublic opinion, the social mores in which they operate.But few students of the process of judicial decision-making havegone beyond something comparable to Mr. Dooley's famous ob-servation that the Supreme Court follows the election returns.61

Such general statements may have some debating value with any-one so unaware as to deny them, but insofar as sociological juris-prudence has pretensions to the serious study of the process, it mustgo considerably beyond the general proposition. The übiquity ofsocial norms makes necessary a careful specification of the mech-anisms through which they operate.

Characteristically,Professor Gluckman somewhat detracts fromhis analysis by an attempt to include virtually the entire discussionunder a single rubric, which thereby becomes almost meaning-less. Moreover, he further confuses the issue by providing a labelfor that rubric that has extensive connotations in Western law—the "reasonable man." At the risk of being ungenerous, I wouldsuggest that the frequent use of theterm "reasonable man" by Pro-fessor Gluckman is simply rhetoric related to his unfortunate at-tempt to strengthen his claim of a "fundamental similarity" be-tween Lozi and Western law. The similaritiesbetween the systemslie in the procedures used, and the extension of the "reasonableman" concept to many types of reasoning notordinarilyconsideredpart of the concept in Western law simply confuses the issue.

If one ignores this blight in the presentation (an exercise ofdiscipline undoubtedly easier for the non-lawyer thanfor his legalcousin), Professor Gluckman's description sheds considerable lighton the process of judicial reasoning. His analysis points to threeways in which social norms enter into the reasoning (considered

61. F. Dunne, Mr. Dooley: Now andForever 162 (1954).59. Id. at 95.60. Id. at 189.

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abstractly) of judges in the Lozi courts: as a determinant of whatbehavior ought to be punished, as basis for the evaluation of testi-mony and as a structure within which inference from testimonyto unobserved events can be made. I know of no other study inwhich these processes are delimited so neatly or in which the op-eration of norms through them in a particular instance is indicatedso clearly.

Consider first the determination of punishable wrongs on thebasis of norms. This is probably the effect that is most clearlybrought to mind by the general proposition concerning the rela-tionship between norms and judicial behavior. Judges bend thelegal requirements for action to conform to the standards accept-able to the society withinwhich they operate. Professor Gluckmanfocuses attention on two attributes of this process that are some-times forgotten. First, generally and most particularly in a societyhaving clearly defined social positions, norms are relative to therole being performed.62 The function that relates group approvalto individual behavior or attributes is distinctly different for dif-ferent roles. As a result, the judicial system treats differently withthe same behavior according to its determination that the indi-vidual is acting in onerole or another.

In addition, Gluckman distinguishes—though not quite inthese terms—different shapes of group approval functions and dif-ferent critical values in such functions. 63 Suppose that we imaginea plot of group approval against an individual attribute. Then wecan imagine a number of different types of norms and variationsin the slope of the plot near the ideally preferred value. As Profes-sor Gluckman points out it is necessary to separate norms withsharply peaked graphs (i.e., those in which small deviations fromthe norm result in substantial loss of approval) from those withmore gentle approaches to maxima (where small deviations resultin only small loss of approval).64 A taxonomy of norms that doesnot recognize this type of distinction will be of little use to legalscience, or to almost any science that uses the norm concept. Moreimportant, a theory of norms is badly needed that notonlyrecog-

v ■ j1 ' Part'cu'ar'im

"

umversaliSI" dimension of social norms has recently been re-emphasized in the sociological theory of Talcott Parsons. See Parsons, The Social Sys-TfM_ S j.

51

/-

Among the Barotse where norms tend to be particularistic, the importanceot this distinction for legal analysis is clarified.(1954.' SCC March' Group Norms <">d 'he Active Minority, 19 Am. Sociol. Rev. 733

64. Gluckman 155.

nizes this distinction but also explains why some norms assumeone form and some another.

With respect to critical values on group approval functions,Gluckman reports that the Barotse differentiate the model of theupright man from the model of the man of sense.65 Roughly thisconforms to a distinction between the model citizen and the modalcitizen and seems to imply that there are critical values in a groupapproval function, perhaps characterized by approximate discon-tinuities. The naive view of social norms as reflecting either ap-proval or disapproval of behavior is replaced by arecognition thata society typically distinguishes between its requirements for mem-bership and its requirements for sainthood.

The second way in which social norms enter into judicial de-termination lies in the evaluation of testimony. In a general sense,this belongs to the section on inference below, but with respect toestimating the truthfulness of testimony it can be considered sep-arately. The norms of Barotse society are permissive with respectto lying in only special circumstances. Specifically, although it isnot clearly "approved," it is permissible to lie in one's own testi-mony if one is accused of wrongdoing and also in testimony givenin the trial of arelative. The society in general and thekuta in par-ticular are generous in the latitude they allow individuals placedin such difficult positions, and expect that ordinarily the testimonyof a defendant and his relatives will be untruthful if the truthwould be damaging to the case. 66 As Professor Gluckman cor-rectly points out, such judgmentson the part of the kuta are clearlydependent on a particular constellation of attitudes in the societyand could bereplaced by quite different presumptions if the socialnorms were altered somewhat.

Because of the presumptions with respect to the truthfulnessof the testimony of a party to a dispute and his relatives, there isan asymmetry about the value placed on such testimony. Wheretestimony supports the apparent interests of the party concerned,it may or may not be true and is given little weight. Where testi-monyfails to support the apparent interestsof the party concerned(e.g., where a witness testifies that his relative is in the wrong),it is almostcertainly true and is given considerable weight. 67 Such

65. Id. at 125.66. Id. at 93, 131.67. Id. at 110.

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presumptions are not unknown to the Western lawyer certainly(consider the different credence given to a plea of "guilty" asopposed to a plea of "not guilty" by a defendant), but their famil-iarity should not be allowed to conceal the extent to which theyare based on commonly shared assumptions about human moti-vation that are treated by the judicial system as laws of behaviorcomparable to the physical laws of the universe as understood bythe society.

Finally, the norms of the society are used generally for purposesof inference in much the same way as they are used for purposesof validating evidence. Professor Gluckman's report on the Barotsegives abundant evidence for the extent to which the structure ofcircumstantial evidence is based on elaborate sets of expectationsconcerning human behavior that comprise a substantial part of thenorm structure of the society, and reminds one of the sometimesforgotten similar dependence in Western law. The kuta uses so-cially determined assumptions concerning the amount of time thatshould elapse between specific actions in the marriage contract,68

concerning the sexual implications of the form of gift-giving69 andbehavior in crossing a river, 70 and concerning the behavior of anunjustly accused person.71 It infers from the fact that a man carriedthe dress of a woman across a river that he had intercourse withher, and from the fact that a decision was not appealed that it wascorrect.

The judges observe what they are permitted to observe andmake inferences from those observations about behavior they havenot observed. The inferences are based on the rules of social be-havior. Note in particular here that given the social norms amongthe Barotse and the stability of the system, all of the inferencesmentioned above are very likely toresult in quite valid conclusions,although at least some of them would be dubious in contemporaryAmerican society. It would be interesting to explore the extent towhich the rules of judicialinference from circumstantial evidencepracticed by juries and judges in Anglo-Saxon courts would beinvalid in the kuta, because of their dependence on social normsnot shared by the two cultures. As a prior need, one wished he

68. Id. at 121-22.69. Id. at 135.70. Id. at 148.71. Id. at 269.

knew a great deal more about how Anglo-Saxon juries and judgesdo, in fact, reason from circumstantial evidence.

Finally, it maybe well topoint out that although the Gluckmananalysis advances knowledge with respect to the integration ofsocial norms and judicial determination, it leaves a great deal un-explored. Most strikingly, the study of the impact of norms mustadvance beyond the stage of simply observing instances in whichthey have effect. Specifically, which norms have what effect inwhatcircumstances ? Where there is a conflict of norms, what de-termines a choice among them ? Where individual behavior cutsacross normatively established stereotypes, what determines theresponse of judges to that behavior?

VIIIThe last few points made with respect to the research needs of

the study of judicial decision-making form a reasonable back-ground for a general examination of the question. Up to this point,I have tried, admittedly with only partial success, to meet ProfessorGluckman and the range of interests he represents on their ownground because I have considerable sympathy with his plea whenhe quotes a quip by Israel Zangwill: "I have ... to apologize tomy critics for this book notbeing some other book, though it shallnot occur again, as my next book will be."72 Consequently, I haveattempted to defer my commentson the subject of "what was notcovered but might have been" until this section.

The student of judicial decision-making faces a situation fa-miliar to any scientific study of a decision-making organizationor organism. Essentially, we observe the output of the judicialsystem in the form of decisions made by the courts, and we seeka theory that will permit us, on the basis of some observable vari-ables, topredict future outputs within a reasonable range of error.The problem for the student of legal processes is to identify therelevant variables to be considered and to define a function thatwill transform their values into the decisions rendered by the legalsystem.

It is obvious that for any unique decision a function can be de-fined after the fact that makes that decision a function of any setof antecedent conditions one wishes to specify. Thus, if one wishes

72. Id. at 31

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to do so, he can "explain" any judicial decision in terms of legalprecedents, social attitudes, the basal metabolism rates of judgesor some combination of these. Any given instance has an infinitenumber of "explanations" that are consistent with the data. Be-cause there are so many such ex post hypotheses in the repertoireof any reasonably imaginative person, we rightly conclude thatthe probability of any one of them being confirmed ultimately isrelatively small compared to the probability of confirmation at-taching to hypotheses that are both consistent with the outcomeand also were formulated before the fact. 73 Laymen as well asscientists are somewhat skeptical of theories having little predictivepower.

In general, it is true that theories of legal determination havelittle predictive power. Although law journals are filled with com-plex analyses of past decisions, they are conspicuously devoid ofpredictions concerning specific future ones. I am aware that anylawyer can make successful predictions concerning some possiblecases and that some lawyers can do so over a wide range of situa-tions. At the extremes, it is rather general knowledge whether agiven set of facts does or does not constitute "a case." But all ofthe observations on all sides concerning the chanciness of litigationgive testimony to the fact that over a considerable number of cir-cumstances a predictive theory does not presently exist.

On the surface, it seems unlikely (though possible) that a pre-dictive theory of judicial action can be constructed exclusively onthe basis of the variables utilized in most theoretical treatments ofcourt decisions, to wit,the rationale for the decision explicitly pro-vided by the judges and the implicit "logic" inferred therefrom.In fact, of course, similar doubts about the predictive potentialitiesof such variables have been standard throughout the legal profes-sion for some time.74 Unfortunately, however, the search for al-ternative models of judicial decision-making has not proceededmuch beyond a preliminary, programmatic stage. One notablerecent exception is the Chicago Law School project for the studyof jury behavior which, in addition to its ill-fated eavesdropping

73. This type of argument, common in most elementary texts on scientific method-ology has recently been given a more careful explication than usual in

Simon,

Predictionand Hindsight as Confirmatory Evidence, 22 Phil. Sci. 227 (1955).74.

See,

e.g.,Frank, Law and theModern Mind (1930).

on federal juries, has utilized an assortment of experimental andsemi-experimental techniques for observing jury activities. In theearly unpublished reports of the Chicago group there have beenreported some highly interesting tests of common aphorisms con-cerning the behavior of juries.

What are some of the alternatives to the theory of judicial rea-soning ? The type of theory most frequently suggested—and men-tioned briefly in Professor Gluckman's treatise75—would relate thebehavior of judges, juries, etc. to their personalities, prior experi-ences, social group identifications, etc. For example, ProfessorGluckman records his impression that a judge who had beenplagued by troublesome children of his own tended to discriminateagainst children who were alleged to have mistreated their parents,andthat a judge who was excessively jealous of his own wife wasmore likely to convict on charges of adultery than were his asso-ciates.76 Similarly, biographical-interpretive reports on assortedjudges have to varying extents attempted to interpret a judge's ac-tivities on the bench in terms of such variables.77 Although someof these attempts are manifestations of behavior theory at its worst(frequently representing an extremebastardization of psychoana-lytic theory), one should not be lulled into belittling the attemptto understand the judicial process by understanding the motiva-tions of and pressures on the participants.

Such a study, however, cannot succeed unless students of thelegal process are prepared to go beyond casual analysis. To cite aquite comparable area of interest, there has been for some time ageneral proposition in political behavior theory that hypothesizeda relationship between individual characteristics and voting habits;but it has only been recently when detailed multivariate analysishas been introduced that anything even remotely resembling atheory of voting behavior has been possible.

In addition, a theory of individual predispositions, importantas it is, is not the only type of theory that is necessary. Most obvi-ously, there are a set of variables of interpersonal influence asso-ciated with the decision procedures themselves. Individual judges

75. Gluckman 322-23.76. Id. at 322.77. See, e.g., Mason, Brandeis: A Free Man's Life (1946); Pusey, Charles Evans

Hughes (1951).

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_.

and individual jurymembers do not render responses in a boothcut off from the rest of the world. They are part of a differentiateddecision-making group operating in the context of a larger socialsystem. Where are the models of behavior within this decisionstructure ? The Supreme Court and a grand jury are both smallgroups. They have unique features to be sure, but the mode of ap-proach presently being used in small group research is, withinlimits, usable in the investigation of legal institutions; and someof the empirical results and theoretical models may well carry overdirectly.

Let me illustrate the type of investigation I have in mind byconsidering the Barotse kuta. It will be recalled that kuta pro-cedure involves questioning by judgesduring the trial period. Dur-ing this questioning stage, participation in the process is at the op-tion of the judges. Subsequently, there is a decision period duringwhich the judgesannounce their decisions in order beginning withthe lowest status judge and ending with the highest status judge,with only the decision of the latter "counting." It will be notedthat from the point of view of the explicit situation much of thisprocedure seems exceptionally pointless. In particular, what is thefunction of the "irrelevant" judgments announced by the lesserjudges? The whole procedure can be viewed in the same terms asa committee discussion in a less structured situation. The leader—the highest ranking judge—is not simply recording his judgment.In particular, were we able to perceive his private judgment atthe end of the trial and before the first judge's decision, we wouldexpect it, at times, to differ from the judgment hefinally renders.Similarly, any judgeother than the first is reacting not only to therecord of the trial but also to the announcementsof the precedingjudges.

The decisions arising from such a situation will presumablyonly be explicable if variables explicitly introducing interpersonalinfluence through social interaction are utilized. Moreover, it willbe noticed that here we have in a "real world" situation somethingalmost directly comparable to the Asch experiments on percep-tion.78 Professor Gluckman has recorded some of the trials withsufficient detail to give a flavor ofthis process in action, but his focus

78. Asch, SocialPsychology (1952).

is not on the social influence process involved. As a result, the datarelevant for such an examination are not all recorded.

Suppose that wehad a decision situation in which each memberof thecourt had tochoose among a fixed set of alternative decisions,e-g-> "guilty" or "not guilty." Then it might be reasonable to usea working model in which each judge's decision is represented asa function of the preceding decisions. Presumably, we would an-ticipate a model in which the weights attached to the several ante-cedent decisions would be larger for more recent decisions thanfor earlier ones. In the Barotse case we would expect such a char-acteristic of the weights for at least three reasons. First, the morerecent decisions are fresher in a given judge's mind. Second, themore recent decisions are those of higher status judges. Third, themore recent decisions already reflect the previous ones. In anyevent, it is at least conceivable that a study of the ordering of deci-sions would permit some estimation of the coefficients in the model,or alternatively might suggest another possible model of the proc-ess. In either case, the study of the decision process would not onlyshed light on the particular case but would be potentially an im-portant source of information for general decision-making theory.

Moreover, situations such as these are not limited to culturessuch as that of the Barotse. Although it may be a few weeks be-fore it is open to complete investigation along these lines, one ofthe most intriguing subjects for a study of social interaction is theUnited States Supreme Court. Hopefully, the Chicago studies willprovide important information on the interaction within a jury. Amoment's reflection will suffice to recall a number of other legalinstitutions in which opportunities for subtle influence throughcommunication explicitly directed to other purposes are obvious.These cues provide an important part of the environment to whichparticipants in the process react, and they represent aspects of thesituation that deserve at least some attention on the part of theore-ticians of the judicial process.

Finally, I should like to call attention to a phenomenon thathas frequently been ignored in decision-making theory, not onlyof the judicialvariety but of other varieties as well. It is frequentlytempting to construct a model with the assumption that all of thealternatives are given. That such a model conforms to many socialsituations is quitereadily conceded. However, it does not conform

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to all situations. In decisions by judicial institutions, as in decisionsby other institutions and by individuals, it is frequently the casethat search for new alternatives is possible. Professor Gluckmanprovides a striking example of a judgewho solved a serious prob-lem for the kuta by creating an alternative not previously consid-eredby the other judges.79 Once onerecognizes that this additionaldimension is frequentlypresent, he can direct attention to a host ofimportant theoretical problems in the analysis of influence. Underwhat conditions will an institution or an individual attempt toexpand the set of alternatives considered ? What are the mechan-isms that induce the acceptance of a new alternative? Who islikely topose newalternatives ? What are the higher mental proc-esses involved in "discovering" alternatives ?

The judicial process affords an important area in which to ex-plore these fundamental questions, and the questions themselvesare intrinsically important to the understanding of that process.For example, I would hazard the guess that a great deal of what iscommonly called judicial brilliance on the part of judgescan betraced to an unwillingness tobe limited to a defined set of alterna-tives and an ability to escape such limits when this appears neces-sary.

J

V

!1Although for the reasons previously mentioned it is not a basis

for legitimate criticism on mypart, I am disappointed that Profes-sor Gluckman did not attempt to exploit the Barotse data alongthese lines. More important, I hope it is neither hopelessly pre-sumptuous nor entirely fanciful to imagine the day arriving whendistinguished students of law and distinguished law journals willdevote serious attention to developing and testing a theory of indi-vidual and group decision-making in a legal context. When thisdayarrives,research on the judicial processwill form an importantbasis for the general theory of interpersonal influence and will fore-shadow a behavioral legal theory. To be sure, such expectationsinvolve the considerable risk of assuming similarity between thesubject matter of interest to the legal scholar and the foci of hisbrethren in thebehavioral sciences. But, after all, it is probably trueto say that judges correspond with, more than they differ from,people.

79. Gluckman 189.