Rules and Processes john L. Cmnaro./f·SimonRoberts The Cultural Logic of Dispute in an African Context The University of Chicago·Chicago and London The University of Chicago Press, Chicago 60637 The University of Chicago Press, Lrd., London ©1981 by The University of Chicago All rights reserved. Published 1981 Paperback edition 1986 Primed in the Unired States of America 9695 94 93 92 6 54 3 Library of Congress Cataloging in Pahiicanron Data Comaroff, John L 1945- Rules and processes. Bibliography: p. Includes index. 1. Law, Tswana. 2. Domestic reladons(TswanaJaw). 3. Lawandanthropology. 4. Tswana(Bancutribe)­ Social Jife and customs. L Roberts, Simon, joint author. II. Title. law 349.68'089963 80-26640 ISBN 0-226-11424-4 (cloth); 0-226-1!425-2 (paper) Contents List of Cases vi Preface vii 1 Introduction 3 2 The Sociocultural Order 30 3 The Normative Repertoire 70 4 The Context of Dispute 107 5 Dispute Processes 1: Marriage and the Negotiation of Conjugal Status 132 6 Dispute Processes 2: Property Devolution and the Definition of Kinship Relations 175 7 Rules and Outcocles 216 8 Conclusion 243 Notes 251 Bibliography 277 Index 289 List of Cases 1 The Headman's "Tribute" 73 2 Mmatlhong's Field 87 3 Namayapela, the Troublesome Son 98 4 Mma-M and the Deputy Chief 112 5 The Trampled Field 118 6 The Disputed House 119 7 The Sharecropping Disagreement 121 8 Molefe and Madubu 125 9 Molefe and Madubu 140 10 Maggie's Status 15 3 11 Tollo and Motlakadibe 154 12 Ramaja and Mmakgotha's Children 160 13 Moakofi and Nkidi 162 14 Mphakga and Mmalegwale 164 15 Thethe and Ramothage 165 16 Kabo's Career 171 17 Thebe's Cattle 179 18 Dikeme's Cattle 180 19 Ranke's Cattle 181 20 Mankge's Cattle 184 21 Kgasane and Senwelo 190 22 Seepi and Motsisi 192 23 A Mother and Her Son 194 24 Mosu's Cattle and Segolo's Status 202 25 Modise and Lesoka 204 Preface Despite a long history of converging scholarly concerns, there has, with the notable exception of Llewellyn and Hoebel, been little direct collaboration between anthropol­ ogists and lawyers. As Twining (1973) has shown, there are several reasons why cooperation between these disciplines is never easy. Our present study represents an attempt to ex­ amine what may be gained by overcoming such difficulties. Our collaboration was not planned in advance. Though each of us set out from the London School of Economics at about the same time to work among Tswana, we first met in the field, more or less by chance, and there discovered a similar­ ity of interests. Roberts was then acting as Adviser on Cus­ tomary Law to the Botswana Government, and Comaroff was undertaking his doctoral research among the Tshidi-Rolong of the South Africa-Botswana borderland. While our early theoretical concerns were not identical, they rapidly con­ verged when it became apparent to both of us that dispute processes-and the ideas that Tswana have about them­ provide a unique and privileged insight into the intricacies of everyday life and the sociocultural order of which it is a part. As we explored this. further, we found ourselves compelled to reconsider many of the arguments that pervade the litera­ ture of legal anthropology and to confront the influence that jurisprudence has had on the development of anthropologi­ cal theory at large. While it is firmly grounded in Tswana ethnography, our present study is addressed to these issues of theory. This study has its basis in extensive field research and the collection and analysis of a large number of case records. Vll viii Preface Roberts first worked in the Kgatleng, in eastern Botswana, from November 1968 until May 1969; he returned on sev­ eral occasions over the next twelve months, between visits to other parts of the country, and spent the (English) summer of 1971 and February-March 1973 there. His work began with an analysis of the records kept by the Kgatla chief's kgotla. These records, which have been described elsewhere (Scha­ pera 1943a; Roberts 1971, 1972a, 1972b), are more or less complete from 1954. They consist of an index of disputes brought to the kgotla and vernacular accounts of the cases that were eventually heard there. Such accounts vary in depth, from terse summaries of what was said and decided in kgotla, to verbatim statements laboriously taken down as the dispute proceeded. Once the records had been translated by James Mpotokwane, they were used as a basis for discussions about family and property matters with the immediate parties and other persons involved. Subsequently, Kgatla "rules" (see chap. 3) were discussed with a panel of informants. Fi­ nally, further disputes were directly observed in the chief's kgotla and in dispute-settlement agencies lower in the hierar­ chy (see chap. 4). Comaroff worked in Mafikeng, the Tshidi-Rolong capital, and Mareetsane, a provincial village, for nineteen months during 1969-70 and in Good Hope, among the Botswana Rolong, for fourteen months in 1974-75. Most of his time was devoted to documenting political and economic pro­ cesses and to making a general study of the sociocultural order of the Tshidi. At the same time, however, he examined the available case records at both Mafikeng and Good Hope-which are less rich in detail than those of the Kgatla-and, where possible, discussed the relevant disputes with those involved. He also made full studies of contempo­ rary cases. These studies were based on verbatim recordings of kgotla hearings and informants' commentaries on them, as well as the observation of relevant events prior to, during, and after formal dispute procedures. These techniques were again complemented by lengthy discussions and by collecting texts about the nature of rules and processes. We should like to acknowledge the generous aid that many people have given us. First, we must thank those Tshidi and Kgatla who devoted time and thought to discussing disputes Preface ix with us and who tolerantly introduced us to the complexities of Tswana life. Second, we are grateful to James Mpoto­ kwane for his translations of the Kgatla records that we use here in verbatim form. Back in London, Professor Isaac Schapera was a source of endless help and advice and kindly read the manuscript of this book, making invaluable criti­ cisms and suggestions. Professor Jean La Fontaine was also a perceptive and constructive critic of our work in its various stages. The writing-up of Comaroff's early fieldwork (1969- 70) was aided by a grant from the Esperanza Trust, and his later research in southern Botswana (1974-75) was funded by the Social Science Research Council. Roberts's work dur­ ing 1968-70 and again during 1971 was carried out under the auspices of the United Kingdom Government's Special Commonwealth African Assistance Plan. The assistance giv­ en by all these bodies is gratefully acknowledged. Marian Roberts and Jean Comaroff, lawyer and anthropologist, re­ spectively, have lived with our preoccupations both in and out of the field. For their patience and critical support, we dedicate this volume to them. For jean and Marian Rules and Processes Introduction 1 This is a study of dispute processes, based on ethnography drawn primarily from two Tswana chiefdoms. Our major concern is to comprehend the logic of these processes and, in particular, their location within the sociocultural orders in which they occur. But this ethnography also provides an op­ portunity to reappraise the established theoretical paradigms in terms of which the anthropology of law has developed; more generally, it speaks to the fundamental question of the relationship between the constitution of sociocultural sys­ tems and the nature of everyday life, of which dispute is merely a part. Our analysis leads us to conclude, paradoxi­ cally, that, while the area usually labeled "legal anthropology" may yield insights of the greatest theoretical importance to the discipline at large, it is doubtful whether it should exist at all as a generic field of study. The development of legal anthropology' has been marked by two conspicuous tendencies, both of which are relevant to this analysis. The_ first, noted by Twining (1964:34-35; see also Moore 1970:270), is the "enormous diversity of pur­ pose, method and emphasis of different writers." Comparing six major African ethnographies, he goes on to state: It is not much of an exaggeration to say that if these books had been written about the same tribe, each would still have con­ tributed a good deal in its own right; certainly if you set out tO do a comparative study of the Tiv, the Barotse, the Sukuma and the Tswana relying solely on these books, it would soon be­ come apparent to you that it is virtually impossible to find a real basis for comparison from the information provided. 3 4 Chapter One And this is in spite of the fact that many influential writers (e.g., Gluckman 1955a, 1965; Pospisil1971; Hamnett 1975, 1977) appear to believe that the phenomena covered by such basic terms as "judicial system," "law," and "legal institu­ tions" are clearly circumscribed and readily comparable across cultural boundaries. The second tendency, although more diffuse, is related to the first. It shows itself in the periodic emergence of disputes, often arid and unproductive, over the proper object of study of legal anthropology. Such debates have occurred at widely varying levels of abstraction. At their most specific, they have raised the problem of whether, for instance, it is rules or processes that demand prior analytical attention; on a more general plane, they have addressed such issues as whether all societies have law; at their most rarefied, they have sought to establish the nature of social order itself.