BOHANNAN

• Law includes customs

• Law must be distinguished from Customs and
norms.
• Law is the ‘master’ norm of social regulations
whose only work is to regulate customary
institutions such as family, churches, schools,
businesses etc.
 Bohannan
• Bohannan in The Differing Realms of Law
(1965) has criticised Malinowski’s approach
being too undiscriminating between customary
law as a whole and law in particular.
• According to him, law comes into being when
customary, reciprocal obligations further
becomes institutionalised and in such a way that
society continues to function on the basis of
rules.
 Bohannan
• Bohannan criticise Malinowski by stating that, it is
not law that is “kept in force by….reciprocity and
publicity”. It is custom.
• Law is rather, “a body of binding obligations
regarded as right by one party and acknowledged
as the duty by the other”.
• It has been re-institutionalised within the legal
institutions so that society can continue to function
in an orderly manner on the basis of rules so
maintained.
 Bohannan
• Reciprocity is the basis of customs, but the law rests
on the basis of this double-institutionalisation.
• Central in it is that some of the customs of the some
of the institutions of society are restated in such a
way that they can be “applied” by an institution
designed specifically for that purpose.
• To understand double institutionalised norms or laws
is to break-up the law into smaller components,
capable of attaching to persons or groups and so to
work in terms of “rights” and their reciprocal duties
or “obligations”.
 Bohannan
• Bohannan says that for law to work there must
be:
1).A way of disengaging disputes from a particular
Institution and engaging them in a legal
institution.
- There must be specific ways in which difficulties
can be disengaged from the institutions in which
they arose and which they now threaten and
then be engaged within the process of the legal
institution.
 Bohannan
2). A framework for handling the dispute and coming to a
decision.
- There must be ways in which trouble can now be
handled within the framework of the legal institutions.
3).A way of re-engaging it into a previous non-legal
institution.
- There must be the ways in which the new solutions
which thus emerge can be re-engaged within the
processes of the non-legal institutions from which they
emerged.
 Bohannan
“A legal institution is one by means of which the people of
society settle disputes that arise between one another
and counteract any gross and flagrant abuses of the
rules of at least some of the other institution of society”.

• There are two aspects of legal institutions that

are not shared with other institutions of the
society.
 Bohannan
1) Legal institutions alone must have some regularised
way to interfere in the malfunctioning of the non-legal
institutions in order to disengage the trouble-case.
2) There must be two kinds of rules in the legal
institutions:
- Those that govern the activities of legal institutions itself
(procedural law).
- Those that substitutes or modifies or restates the rules
of the non-legal institutions that has been invaded.
(Substantive law).
 Bohannan
• Legal rights are the only those rights that attach to norms
that have been doubly institutionalised.
• They provide a means for seeing the legal institutions
from the standpoint of the persons engaged in them.
• Law is never a reflection of custom rather it is always out
of phase with society.
• Indeed, more highly developed the legal institutions, the
greater the lack of phase, which not only results from the
constant re-orientation of the primary institutions, but
also is magnified by the very dynamic of the legal
institutions themselves.
 Bohannan
• Thus, it is the very nature of law, and its capacity to
“do something about” the primary social institutions,
that creates the lack of phase.
• Moreover, even if one could assume perfect legal
institutionalisation, change within the primary
institutions would soon jar the system out of phase
again.
• If there were ever to be perfect phase between law
and society, then society could never repair itself,
grow and change, flourish or wane.
 Bohannan
• It is the fertile dilemma of law that it must always
be out of step with society, but that people must
always attempt to reduce the lack of phase.
• Customs must either grow to fit the law or it must
actively reject it.
• Law must either grow to fit the custom, or it must
ignore or suppress it.
• It is in these very interstices that social growth
and social decay take place.
 Bohannan
• Social catastrophe and social indignation are sources
of much law and resultant changes in custom.
• With technical and moral change, new situations
appear that must be ‘legalized’.
• Its application is somewhat different to developed and
to less developed legal system.
• In developed legal system, legal level are traditionally
concentrated in political decision-making groups such
as legislature, non-legal social institutions sometimes
take very long time to catch up with the law.
 Bohannan
• On the other hand, in less developed legal
system, it may be that little or no popular
demand is made on the legal institutions
and therefore little real contact exists or
can be made to exist between them and
primary institutions.
• Law can become one of the major
innovators of society, the more effective,
the greater people’s dependence on it.
• If the norms comprising the nonlegal institutions are sufficiently
institutionalized, they can have a direct regulatory impact on legal personnel as
well on the citizenry (interaction 4, “Single institutionalization”). On the other
hand, according to Bohannan (1968), if the norms of the nonlegal institutions
are not sufficiently strong to regulate the behavior of the citizenry, a process of
“double institutionalization” (interaction 1) occurs whereby the legal system
converts nonlegal institutional norms into legal norms. This effect can be seen
in the rise in the Colonial period of “blue laws,” which were needed to give
legal reinforcement to the religious norms that held the Sabbath to be sacred
(Evan 1980, pp. 517-518, 530-532). In addition, the legal system can introduce
a norm that is not a component of any of the nonlegal institutions. In other
words, the legal system can introduce an innovative norm (interaction 2) that
does not have a counterpart in any of the nonlegal institutions (Bohannan
1968). An example of such an innovation is “no-fault” divorce (Weitzman 1985;
Jacob 1988).