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MAN IN NATURE

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The Cosmic Nature of Bushman Law 

A. J. G. M. Sanders

When some 4000 years ago, nomads, calling themselves Khoi-Khoi, came into contact with the much longer established hunter-gatherers of Southern Africa, they called them ‘San’, meaning food-gatherers. The seventeenth century Dutch colonists of the Cape of Good Hope called the hunter-gatherers who lived on the savannah or ‘boschveld’ of the Cape Interior, ‘Boschjesmannen’.

Currently in vogue among those who dedicate themselves to the study of the hunter-gatherers of Southern Africa, is the Khoi-Khoi appellation of ‘San’. It is felt that the term ‘Bushman’ has acquired too much of a pejorative connotation. However, the same holds true, albeit not perhaps among academics, of the term ‘San’ and its Bantu derivative ‘Sarwa’. Unfortunately, a derogatory connotation is the fate of any appellation of a marginal group, even when in its original form the appellation was merely descriptive and meant no harm.

In this paper the hunter-gatherers of Southern Africa will be referred to as ‘Bushmen’, as this term need not carry a connotation of contemptuousness, and despite academic attempts to popularize the word ‘San’, has remained the term most widely used. The theme of this paper is Bushman law, as an expression of Bushman cosmic intelligence.

When I refer to ‘law’, I do not have some or other ‘scientific’ definition of law in mind, such as ‘law is the command of the sovereign’, but rather the description of law which is employed by legal comparatists, namely ‘those norms for external conduct which are accepted by a community as obligatory’.

A complicating factor is that the Bushmen have never articulated their world-view. They would, no doubt, be bewildered by expressions such as ‘religion’, ‘constitutional law’, ‘family law’, ‘contract law’, ‘property law’ and ‘succession law’. Hence, when in this paper I make use of these concepts, I do so for your and my convenience only!

The World of the Bushmen

The Bushmen are the longest-term inhabitants of Southern Africa. They are the last survivors of a Stone Age people who were once scattered all over Eastern, Central and Southern Africa. According to archaeological data, they were for at least 30,000 years the sole inhabitants of the Southern African region. Their history, style of living, language and physical appearance distinguish the Bushmen sufficiently, in the minds of others as well as in their own minds, as a recognizable ethnic group. However, subsequent to Khoi-Khoi, Bantu and European invasions, the bulk of what is left of traditional Bushman society in Southern Africa is now confined to the most arid part of the Kalahari Desert which falls within the boundaries of the present-day Republic of Botswana. Needless to say, that we are referring here to a small number of people.

Archaeological and linguistic evidence indicates that today’s Kalahari Bushmen are the descendants of local Bushmen rather than of Bushmen refugees driven from other parts of Southern Africa into the Kalahari by African tribes and Europeans. It is therefore possible to speak of an aboriginal Kalahari Bushman culture; and it is on this culture that I will concentrate in this paper.

The Kalahari Bushmen are present-oriented people who, in their quest for survival as hunter-gatherers, live a thoroughly pragmatic, yet simultaneously religious life.

According to Bushman belief, man constitutes the beginning and end, or rather the cycle of life. Man is the immediate carrier of life but over and above man stand the planets, and then there are the rain clouds, water wells, trees, plants and animals, all of which are considered to be pre-deceased and transformed Bushmen. According to oral tradition, these Bushmen are endowed with extraordinary or magic powers of generosity as well as punishment. Hence, it is advisable to be on good terms with them.

The focus of religious contact among the Bushmen is the trance dance. It is seldom a pre-arranged event. Rather, some children initiate some rhythmic game around the evening fire, and adult men may join them. Some of the men may begin to leap and dance around the fire. The children will gradually retire to join their mothers who are now sitting in a circle around the fire, clapping and singing. As the dance reaches a peak of excitement, one or more of the men work themselves into a state where they transcend themselves and enter the realm of the magic to plead for the health of individuals and the community. The trance dance, which may last for hours on end, constitutes the Bushmen’s major ritual and involves the entire band community.

Bushman Law

The world-view of the Bushmen as outlined above, is reflected in the law of the Bushmen. However, just as there is in Bushman society a minimum of ‘religion’, as developed cultures know it, so there is a minimum of ‘law’.

CONSTITUTIONAL LAW

Subsistence hunting and gathering requires group formation. In a habitat as barren as the central Kalahari Desert, the groups or ‘bands’, as they are known in the literature, are per force small in size and highly mobile. In fact, a central Kalahari Bushman band seldom numbers more than fifty members.

Bushman society is therefore band society. The Bushman band does, however, constitute an early form of political society with an elementary legal order.

Each band is composed of several families. Whereas the band constitutes the largest social unit, the family constitutes the most cohesive and enduring one. The family is also the basic unit of interband migration and the formation of new bands.

The formation of a new band is a comparatively rare event, but interband migration is a common occurrence. No band therefore forms a closed community. In fact, the average band is a rather fluid group which fragments and realigns continuously, and it is often difficult to distinguish between migrants and visitors. Major factors inducing migration or protracted visits are food supply, marriage, and the alleviation of tense social relationships.

Notwithstanding the frequency of social interaction between individual members and households of the various central Kalahari band societies, and the total absence of interband warfare, no society of bands exists. The separate bands do not interact, in any organized way, in ritual, economic or other social activities. Each band considers itself to be complete in itself and autonomous in respect of other bands.

The band has no chief or leader. Kalahari Bushman society simply does not lend itself to a centralized, hierarchical structure with specialized personnel. Decisions affecting the social life of the band are arrived at through discussions in which all adult and near-adult members of the band, irrespective of whether they are male or female, are welcome to participate. Discussion is informal, is not conducted in any special place, and seldom takes the form of a single, set-piece debate.

For outsiders, the egalitarian nature of Bushman political society must be rather striking.

FAMILY LAW

Girls and boys are equally welcome in a Bushman family. They will begin to share in family and band responsibilities when they are seven or eight years of age. The boys will join the men in their hunting and the girls will help their mothers with the gathering of vegetable-type foods.

Their parents, too, are of equal status, for the simple reason that the hunter-husband could impossibly do without the help of his gathering wife who, in fact, provides the family with the bulk of its day-to-day sustenance.

Marriages are arranged by the couples themselves, but in respect of the young, parental approval is required. No matrimonial property settlements are entered into. One may marry either within or outside of the band, but because of strict incest taboos, marriage partners will often be selected from outside. Polygamy occurs, but is not common. Divorce is accomplished by the unilateral decision of either spouse or by mutual consent. They only semblance of formality is the act of parting. Incompatibility and adultery are the main causes of marital break-up. After divorce, the father takes custody of the children, but as long as a child is still at the breast stage, it will remain with the mother. The band regrets divorces but adds no social stigma or legal impediments to them. Divorces are not uncommon among young couples, but overall there is a notable stability in marriages.

The only family relationship, and indeed the only relationship in wider Bushman society, in which authority is inherent, is the parent-child relationship. Significantly, however, parental duties are considered to be more important than parental rights. In addition, a nuclear family’s duties may well extend beyond the immediate, parental sphere and include a duty of support to grandparents, siblings and other close relatives. Accordingly, should a family decide to migrate, they will take with them those relatives who need or want to accompany them. Thus, whole segments of a band may join another band.

CONTRACT LAW

In the absence of a ‘social’ contract, there would of course be no band society. Less apparent is the need for private contracts, this is to say contracts between individual band members. Certain forms of contract are definitely frowned upon, notably commercial contracts, as bargaining is seen as likely to create social tension. Rather the Bushmen engage in giving and receiving, borrowing and lending. Sharing possessions strengthens of course the fellowship, but it also promotes the mobility of the band.

PROPERTY LAW

The Bushmen have few personal belongings. These are largely made up of the shelter, hunting and gathering tools, culinary utensils, clothing, ornaments and musical instruments. They belong to either men or women, as the concept of matrimonial property is unknown to the Bushmen.

Personal belongings being so few, Bushman property law really revolves around the use of the common wealth. With the band operating within an ill-defined area within which it moves from place to place, it is not the area itself but rather its resources which are thought of as the common wealth. These resources, namely rain and ground water, the waterholes, the wild plant food and animals, are there for equal use by all of the band members. For people from neighbouring bands to hunt and gather in the band area or draw water from it, they will need permission. Usually, permission will have to be obtained from the founder-members of the band, their eldest descendants or long-standing band members who act as spokesmen of the band.

Rain and ground water belongs to no one, but the permanent and semi-permanent waterholes are band property.

The wild plant foods, which constitute between sixty and eighty per cent of the Kalahari Bushmen’s subsistence base, are also band property but once collected belong to the woman who collected them. With her daily gathering the woman will feed her own family and visitors.

The game animals belong to no one until they are killed. Small animals become the property of the person who kills them, and are consumed within his own family. To catch the larger animals requires of course a hunting party. The composition of the hunting party, which is seldom larger than four or five adult or near-adult men, is not a matter of convention, and no one is formally in command. Once an animal has been arrowed, the hunters may follow it into neighbouring band territory, and should neighbours cross the hunters’ track, they will be given a present of meat, but no tribute is obligatory. Already the animal belongs to the owner of the first arrow to have been effectively lodged into it so that it penetrated enough for its poison to work. However, the meat of large animals has to be shared with everyone in the band, visitors included, according to definite rules. It is upon the owner of the first arrow to make the initial distribution of the meat, and who receives from him, will give again, and so on.

What strikes one, is the communitarian nature of Bushman property law. The emphasis is clearly on sharing. Of course, this makes practical sense, for in a community as small as a band society, to look after the health of each and every band member, is to look after the health of the community. However, there is a much deeper, indeed religious meaning of Bushman property law, in terms of which the common wealth is a gift to the band from above.

SUCCESSION LAW

Birth and death among the Bushmen are treated in a ‘casual’ fashion, which is to say that there are no rituals attached to them. This merely confirms that the Bushmen have a vision which transcends an earthly existence.

Personal property being so scarce in Bushman society, and being neither of great nor lasting value, it is only the succession to a deceased person’s interests in gift-giving partnerships which is an important matter to be settled. In order to assure the continuation of major partnerships, older Bushmen, on becoming less mobile and less productive, will gradually pass their partnerships on to their children or younger siblings. In respect of partnerships which have not been disposed of by the deceased, the deceased’s children or siblings may ask the remaining partners to continue to relationship by offering them the deceased’s possessions.

SOCIAL WRONG-DOING

The small face-to-face and, indeed, ‘footprint-to-footprint’ community of the Kalahari Bushman band is generally at peace, there being little scope and inclination to act anti-socially. Of the wrong-doings, the ones which are feared most, occur least, namely physical violence, the breaking of the incest taboos, flagrant adultery and theft. Most transgressions relate to the use and distribution of the natural resources.

A transgressor of the communal law is seldom considered to be a bad person, but is rather treated as someone who erred to the detriment of the communal, including his or her own interests.

THE SETTLEMENT OF TRANSGRESSIONS AND DISPUTES

Transgressions of the communal law and disputes among individual members of the band are judged by band opinion, and controlled by band action, rather than self-help. As violence is greatly feared because it would be destructive of band society, every effort will be made by the band to prevent self-help, and try to resolve a conflict through talking, which in appropriate cases may take the form of public shaming and ridicule. If a conflict cannot be resolved this way and the offender is not willing to leave the band of his or her own volition, he or she will be ‘eased out’ of it. However, an offender’s departure could prove to be of greater harm to the band than was his or her original wrong-doing. Hence, every effort is made in band society to prevent or else channel conflict.

Conclusion

The law of the Bushmen cannot be separated from the Bushmen’s religious orientation or world-view. They are interwoven in a peculiar, indeed practical fashion, for both are man-centred. By using the term ‘man-centred’ I do not wish to imply that in Bushman society there exists a confrontation between man and nature. On the contrary, for according to Bushman cosmic feeling, nature is man: it is the community of ‘transformed’ and ‘living’ Bushmen. Hence, the environment is revered, and utilized and shared with great care.

As matters stand now, what is left of traditional Bushman society is under enormous pressure from outside modernist forces, and all we can really hope for is that some elements of the Bushmen’s cosmic intelligence, such as environmental care, communal care and the art of dialogue, will be taken with us into the future.

References

Barnard, A., 1992. Hunters and Herders of Southern Africa, Cambridge University Press.

Roberts, S., 1979. Order and Dispute. An Introduction to Legal Anthropology, Penguin Books.

Sanders, A.J.G.M., 1989. "The Bushmen of Botswana — from desert dwellers to world citizens", In Law and Anthropology 4, 107-22.

Schott, R., 1959. "Die eigentumsrechte der Bushmanner in Sudafrika", In Zeitschrift fur vergleichende Rechtswissenschaft, 101-223.

Silberbauer, G.B., 1981. Hunter and Habitat in the Central Kalahari Desert, Cambridge University Press.

Tanaka, J., 1980. The San Hunter-Gatherers of the Kalahari, University of Tokyo Press.

Tobias, P.V. (ed.), 1978. The Bushmen. San Hunters and Herders of Southern Africa, Human and Rousseau, South Africa.

Van Der Post, L. and Taylor, J., 1985. Testament to the Bushmen, Penguin Books.

 

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