• Robert Spicer

Harold Barclay: People without government: shock, horror: some societies don’t have lawyers

A shock for lawyers – law is not universal – there are societies which have managed very well without wigs, gowns, advocates, courts, prisons and gallows.

Barclay sets out an anthropological analysis of societies which have functioned without government, which do not accept the idea of authority as natural.

His key points include:

  • Legal sanctions involve expressions of disapproval of the behaviour of an individual where:

  • Such expressions of disapproval are delegated to persons holding defined roles.

  • These persons have authority to threaten the use of violence and use it to carry out their job.

  • Punishments are imposed in relation to the infraction and are defined within certain limits and in relation to the crime.

  • Examples of persons holding these defined roles include police, judges, jailers, executioners and lawmakers.

  • The state declares that it has a monopoly on the use of violence.

  • Legal sanctions are not universal, but are characteristic of only some types of human society.

  • Law and government are invariably associated with rule by an elite class.

  • The employment of violence to enforce the law is fundamental to both government and to the state. The government may use a variety of words to describe this violence: lawful arrest, reasonable force, detention, etc., but it all involves, in the end, physical violence.

Barclay’s views must be subject to the argument that societies without laws have functioned at a primitive stage of sophistication, and that more developed societies need legal systems. This is subject to the counter-argument that current society has reached a stage of development and sophistication where justice is for sale, where children and the mentally ill are put to death in the United States and other countries, and where war criminals avoid prosecution.

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