Karl Llewellyn was a bit of a rascal. That was an odd characteristic because he was also a brilliant lawyer. Indeed, one of the most brilliant of his time. Llewellyn was one of those lawyers who became known as “legal realists”. That school of thought proclaimed the radical idea that law legitimizes itself by doing what the public wants it to do.
Hmmm … you might ask yourself, “what is so radical about that?” Shouldn’t the law do what the public wants it to do? Some lawyers will say, “not necessarily”. They may argue instead that law does what the law tells lawyers to do, regardless of whether people like it or not. In other words, law is loyal to law, not to the public.
That is an interesting discussion in itself, but not the point of this post. As I said, Lywelellyn was a bit of a rascal. As a rascal, he asked this provocative question. Could a group of people who have no written language have what we would call a “legal system”? After all, with no writing, they can have no rules. Would having no rules disqualify them from having law?
This led to a study of the American Indian tribe, the Cheyenne – a culture that had no written language. Did the Cheyenne have a legal system? Llewellyn and his anthropologist colleagues looked at this deeply and wrote a book about their study called “The Cheyenne Way”. it came out in 1941.
The conclusion of the book is astounding. Llewellyn concluded that the Cheyenne not only had a coherent legal system, in at least one respect it was more nuanced than our own.
How could that be? It was because the decisions that we would call “legal” (for example, resolving conflicts between members of the tribe) were made based on a brilliant principle. The resolution of the issue must make the tribe stronger. That is the purpose of the decision – not just to resolve the matter between two people (as in compensating for loss) but in reconnecting the people to the tribe at a higher level.
We don’t do that. Indeed, we seem to be much more fond of putting people in prison for extended periods of time. Food for thought.