The most usual criteria for punishment in primitive societies is the principle of “Eye for an eye”. According to this principle if a person has taken the eye of another the chief orders that the eye of the criminal should be taken.Blood for blood is the ancient principle of retribution in primitive societies. Thus punishment is based on retributive principle. This is so since most of the tribal people believe that crime is a violation of divine system or rules. Hence it is believed that the criminal is evil and should be given suitable punishment so that he may become free from evil.The evil souls must be punished. Besides retribution, another basis for punishment is compensation of the loss.
Punishment in the form of fine is usually based on this principle. A fine is imposed since it compensates the loss.But the most important principle in the primitive system of punishment is the principle of collective responsibility.According to this principle punishment is not necessarily awarded to the individual who has committed the crime but his family, clan and local group may also be punished. For example, punishment of death is given for a murder, but this punishment may not be awarded to him who has murdered.In his place some other member of his family, group or clan may be killed since the group is collectively responsible for the criminal act of each member.
CHARACTERISTICS OF PRIMITIVE LAWS
It is a part of natural and supernatural principles.
It is based on kinship types.
It is originated from the moral and ethical notions and public opinion. In primitive law there is no difference between civil law and criminal law. Primitive law doesn’t distinguishes between crimes and torts, public and private issues. It gives importance to sin and supernatural punishments.
In here kinship group looks after law, therefore, there is collective responsibility for protecting the law.
Kinds of Evidence
(a) Oath. The offender has to take an oath and then he is asked to state whether he has committed the offence or not. It is generally believed that, if the offender tells a lie, he falls a prey to the supernatural anger for taking a false oath.
(b) Ordeal. Sometimes the persons accused are put to torture in primitive societies before the declaration of judgment in criminal cases. If the accused persons escape without injury, they are acquitted as they are supposed to be not guilty.
Kinds of Punishment
Different types of punishment are prevalent in different primitive societies. While in some societies compensation and social extermination are the more usual punishments, in other societies different types of physical injuries are inflicted as punishment. Similarly, in some societies fines are imposed and community feast is demanded to wipe off the crime.
Capital sentence is generally given in a case of homicide; but sometimes the death penalty is given to one of his family members or to one of his kins instead of inflicting it up to the person who has actually committed homicide.
They-believe that it is not the individual who is regarded to have been wronged but the whole kin-group to which he belonged and his kin-group, therefore avenges itself on the kin- group of the accused and not necessarily on the accused himself.
4. In some other societies the criminal is publicly insulted by blackening his face and carrying him through the entire village seated on a donkey. In America, in a tribe an unfaithful wife is given the punishment of death by drowning in water. In an Uganda tribe there is provision of jail for the criminal. The criminal, however, can be set free for a night.
If the crime is very serious the criminal is fixed to a pole till he dies. Murder is usually punished by capital punishment but most of the tribes do not have the provision for hanging till death. The provision for jail, however, is very exceptional. Usually, one does not find prison houses in tribal societies. 6. The misbehavior done to an ordinary individual is lightly punished, when the same misbehavior done to a chieftain is punished severely. For example, adultery with the wife of a king or chieftain is a capital crime and punished with death whereas adultery with some ordinary individual is not punished so severely.
The punishment of imposing a fine is not found among the punishments for crimes in primitive societies. Where fines are charged in a primitive society, they are paid by way of compensation to the aggrieved party.
The accused, very often, has to give a feast to the whole village in compensation for his crime. Even in case where fines are paid by way of compensation for the wrong done, attention is paid to the person who has done the wrong as well as to the person who has been wronged, if a person of a low standard offends a person of a high status, the find imposed is very heavy. But, if a person of a high status offends an ordinary person, the amount of compensation is very small.
Courtney from Study Moose
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