Chapter 12: Torts, crimes, sanctions. Witchcraft and related issues (the anthropology of compensatory or retributive justice)

Wolfgang Fikentscher, Ludwig Maximilians Universitat, Munchen

Abstract

Inclusive online updates jan10. Chapter 12 on torts and other wrongdoings will treat, along with the traditionally well researched basic concepts of this field of legtal anthropology (to which only brief attention will be given) a recently again debated alleged contrast between shame and guilt societies, the phenomenon of knowledge as witchcraft, and a short report on the growth and institutionalization of international criminal law. Early cultures do not distinguish between torts and crimes. They speak of wrongdoings. A designation of the person who commits the the tort or crime, is a “perpetrator” who is the defendant in civil and criminal cases. In countries of Western culture, the distinction between (civil) torts and (public) criminal law is clear-cut, depending on the plaintiff: In torts cases, the plaintiff is a private person, notably the victim. In criminal law, the plaintiff is the state represented by the public prosecutor. The distinction is a by-product of the more profound difference between the private and the public sphere, and as such a corollary of the axial-age distinction between individualism and polis (Genossenschaft). In pre-axial-age societies such as animist bigmanships, chieftaincies and kingdoms, “public” persecution of wrongdoing is possible and indeed common: Persecutors act in the name of the group, be it a big man society, a tribe, or a nation. These public executioners without a public sphere, as they may be characterized, are understood as acting in lieu of the victim, be they singles or a group of people. They are not organs of an entity such as a government of those singles or groups of people. Therefore, their activities are as a rule not the exercise of a power monopoly, and therefore do cannot exclude private revenge (feuds) or private seeking of indemnification. Consequently, in many non-Wesern cultures the field of law consists of executing sanctions against perpetrators. How close tort and criminal law are in tribal societies even today is exemplified by Native American code making. Much of criminal jurisdiction has been taken away from the tribes by the US federal government. However, civil – including torts – law is mostly tribal. In order to regain jurisdiction in criminal matters, tribes may be inclined to codify acts that may be regarded as torts law instead of criminal acts, for example in traffic cases. A catchword is “civilizing wrongdoing”, or “civilizing torts”.