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Edward Adamson Hoebel (1906-1993)

Edward Adamson Hoebel was born in Madison, Wisconsin. He received his A.B. from the University of Wisconsin, M.A. from New York University, and a Ph.D. in anthropology from Columbia University. He was president of the American Ethnological Society and the American Anthropological Association and was Regents’ Professor of Anthropology at University of Minnesota for 18 years until his retirement in 1972.

A leading anthropologist of law, Hoebel was influenced by another anthropologist, Karl N. Llewellyn, a brilliant lawyer with social-science skills and interests. The two anthropologists collaborated on an analysis of the “law ways” in traditional Cheyenne society. Their emphasis on the “law-jobs” having both a “pure survival” or “bare bones” aspect for the society and a “questing” or “betterment” value (Llewellyn and Hoebel, 1941:Ch. 3) contributed significantly to the development of a modern functional approach to the legal system. We return to this point in the discussion on the functionalist approach later in this chapter.

Hoebel (1954) presented his views on the development of law in his book The Law of Traditional Man. He noted (1954:288) that “there has been no straight line of development in the growth of law” but that certain general understandings of law exist in traditional societies as studied by anthropologists. In general, he considered law and the legal system as properties of a specific community or subgroup of a society and stated, “Without the sense of community there can be no law. Without law there cannot be for long a community” (1954:332).

Hoebel began his description of the trend of law with a discussion of the “lower traditional societies”—the hunters and gatherers, such as the Shoshone Indians and the Andaman Islanders. Almost all relations in such a society are face-to-face and intimate. The demands imposed by culture are relatively few Ridicule is a potent mechanism of social control. Taboo and the fear of supernatural sanctions control a large area of behavior. Special interests are few, for there is little accumulated wealth. Conflict arises mostly in interpersonal relations. Repetitive abuse of the customs and codes of social relations constitutes a crime, and the offender may be beaten or even killed by the members of the community. Hoebel wrote, “Here we have law in the full connotation of the word—the application, in threat or in fact, of physical coercion by a party having the socially recognized privilege-right of so acting.

First the threat—and then, if need be, the act” (1954:300).

Among the more organized hunters, the pastoralists, and the root-gardening peoples, such as the Cheyenne, Comanche, Kiowa, and Indians of the northwest coast of North America, the size of the group and the increased complexity of the culture lead to more diverse interests among the members of society. Conflicts of interest grow, and the need arises for legal mechanisms for settlement and control of the internal clash of interests. Private law emerges and spreads, although much of the internal social control problems are handled on other than a legal basis.

“The real elaboration of law begins with the expansion of the gardening-based tribes,” such as the Samoans and the Ashanti, Hoebel (1954:316) wrote. The gardening activity provides an economic foundation for the support of larger populations that can no longer maintain face-to-face relationships. With the formation of more communities, “The pressures to maintain peaceful equilibrium between the numerous closely interacting communities become intensified. The further growth of law and a more effective law is demanded” (1954:316). The attempt to establish the interest of the society as superior to the interests of kinship groups is the prime mover of law in this type of society. Allocation of rights, duties, privileges, powers, and immunities with regard to land becomes important, and “the law of things begins to rival the law of persons” (1954:316).

For Hoebel, the “trend of law” is one of increasing growth and complexity in which the tendency is to shift the privilege right of prosecution and imposition of legal sanctions from the individual and the kinship group to clearly defined public officials representing the society as such. Hoebel maintains that this is how law developed in human societies through the ages, but the laws of particular societies have not followed a single line of development through fixed, predetermined, and universal stages. The development of legal systems in particular societies is characterized by a trend that only in general exhibits the features described here.

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