Traditional Legal Systems

“To understand law one must view it in its social context and not as something which can be described by the analysis of a sample, however large, of cases alone” (Nader 1964:408).

Traditional or primitive legal systems are found in hunting and gathering societies as well as some simple, subsistence farming communities. The word “primitive” as used here means in the early stages of development. In traditional or primitive legal systems, there are some distinctions made between substantive law and procedural law. Substantive law addresses rights, duties, and prohibitions. Procedural law considers how law is to be administered, enforced, and changed over time. In traditional legal structures, judges are typically village chiefs, elders or religious leaders, or even people who community members see as capable legal listeners (Nader 1964). Courts might be held in town hall-like structures or they can be temporary; they are set up to address legal issues and then dispersed after the matter is settled (Nader 1964, 1965).

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In traditional societies, no strict separation exists between law and religious beliefs. Laws are typically not written and are intertwined with customs, traditions, religious and spiritual beliefs, and ancient norms. Law is called upon to settle disputes, to coordinate social relationships, to control behavior, and to enforce kinship and other rules (Nader 1965; Hoebel 1954).