Customary law of murder : The Zeliangrong of NE
- Part 1 -

Budha Kamei *

Scene from 'The Zeliangrongs' :: Provided by Director - Ronel Haobam

In societies, where there are no legal sanctions, the obligations on individuals will be regarded as matters of custom and convention, but not of law. In other words, some simple societies have no law, although all have customs which are supported by sanctions. A sanction is a reaction on the part of a society. Social obligations can be defined as rules of behaviours and the failure to observe which does entail a negative (disapproved) sanction of some sort. These are thus distinguished from non-obligatory social usages.

The function of sanction is to re-establish the social euphoria by removing a conflict within the community itself. In any given society, "the various primary sanctions form a more or less systematic whole constitutes the machinery of social control. There is a close relation between the religious sanctions and moral sanctions. In simple societies, the primary legal sanctions of criminal law show a close relationship with religious beliefs." Thus, the sanctions are of primary significance to sociology in that they are reactions on the part of a community to events affecting its integration.

The tribal peoples of North East believe their customary laws are inherent to their identity and a vital part of their culture and tradition. The origin of it does lie in habits that grew into customs. When a whole community adopts a habit it becomes a custom; imitation does play significant role in the transition from habits to laws that also symbolize the values of a society. Its members respect and adhere to them if they become integral to their heritage. It is fact that traditional societies only had unwritten laws and usages regulating the human behaviour of individuals.

Such law does maintain social order and they are a stabilizing cause in that society. Thus, customary laws can be defined as "a set of rules that attain the force of law in a society because they are observed continuously and uniformly for a long time. It is the totality of the customs of a tribe handed over from one generation to the next. Since they provide rules, enforcement procedures and punishment for violation, they are guardians of its values."

In short, the basis for these laws lies in social practices accepted as obligatory. Customs and customary laws are not synonymous. There may be various customs without any legal authority, but whereas the customary laws have the sanction of the bulk of the society and if not obeyed, such violator is to be punished.

Therefore, a customary law is the habitual course of conduct of a society. It includes a number of dos and don'ts based on its norms, practices and usages, mechanism like sanctions, taboos, social rituals, culture, public opinion and ethics of each individual person and thus restrain their pattern of behaviour. All these norms and rules of conduct for individuals and families regulate the social, cultural and religious aspects of life; they are obligatory and enforceable. The hill peoples of Manipur accord them the force of law and consider them as old as the people itself. They have continued to exist also as the will of the community and public acknowledge and support them.

These norms and rules are social control mechanisms legitimized through a belief in a supernatural being. The ancestors or fore-fathers of a society did pass such divine tenets to each generation, and thus maintained social harmony based on a well established pattern lives, sustained by ancient customs, beliefs, rituals, ceremonies and symbols. The entire community follow them out of respect or fear of a supernatural being from whom the law originated and who can punish its infringement. As the prescriptions embodied spiritual significance, some of its violations were tolerated with no sanction of the individual concerned indicating that the divine spirit will care for that person. However, these laws are only customs till a formal legal body recognize it.

Pei, village council is the highest court in the village. The existence of Pei has created another important source of law, in the form of judicial decisions. The Pei in the first place has to declare what the law is. A custom, until brought before Pei, does operate as part of the general system of behaviour incumbent upon members of the community. If brought before the Pei, and held to be valid, it does obtain recognition as a good law (customary law), and henceforth supported by the additional sanction of judicial enforcement.

The Pei does not create the custom: it simply recognizes, and by so doing strengthen, the obligatory character of a rule already in existence. Sometimes, however, the Pei will hold that a custom, even if generally observed, is not compatible with the existing conditions of tribal life, and will refuse to regard it as legally binding. The decisions given by the Pei afford a precedent for similar declarations in future.

In the distant past, law was a part of religion as among the Greeks, the Romans and the Hindus. The ancient cities' codes were a collection of rites, liturgical directions, and prayers, joined with legislative regulation. The laws relating to property and those about succession were scattered about in the midst of rules for sacrifices, for burial, and for the worship of the dead. At Rome, the priests were the pontiffs and the jurisconsults as no one could be a pontiff who did not know the law and on the contrary, no one could know the law if he did not know regarding the questions of religion.

For a long time, the pontiffs were the only jurisconsults. There was hardly an act of life which had not some relation to religion. The priests are the competent judges; all disputes concerning marriage, divorce, incest, celibacy and civil law and religious rights of infants were performed to their tribunal. In case of adoption, it takes the consent of pontiffs as it affected religion. Whenever two neighbours have a dispute about boundaries, they had to plead before the priests. This clearly explains that law and religion were but one. At Athens, the archon and the king perform the same judicial functions like the Roman pontiffs.

The origin of ancient law appears clearly that no man created them. A man can make a code by the power of his genuine, and who imposes it upon other men, but this legislation not at all existed among the ancient people. Nor did ancient law originate with the vote of the people. But, it was only after two revolutions had transformed them. Up to that time, laws had appeared to men as something ancient, immutable and venerable. Men believed that the sacred hearth, in virtue of the religious laws passed from father to son. From this it followed that the house was hereditary property.

Ancient people believed that their laws came from the gods; the Cretans, the Lacedaemonians, the Romans and the Etruscans had attributed their laws to Jupiter, Apollo, the goddess Egeria and the god Tages respectively. The laws long did remain holy and even at the time when the vote of a people might make a law, it was still required that at least the consent of religion should be obtained. Plato said "To obey the laws is to obey the gods."

The law was always sacred; in the time of royalty it was the queen of the kings and in the time of republic it was the queen of the people. To disobey it was sacrilege. In principle the law was immutable, since they were divine. The laws were unwritten during long generations; they were handed down from father to son, with the creed and the formula and of prayer. They were a sacred tradition, which was perpetuated around the family hearth, or the hearth of the city. The day, on which men began to commit them to writing, they consigned them to the sacred books, to rituals, among prayers and ceremonies.

Later on the laws were separated from the rituals and were written by themselves. But, the custom of keeping them in a temple continued and priests had the care of them. These laws were always formulated into very brief sentences, which may be compared in the form to the verses of Levitus or the slocas of the book of Manu. As religious origin of ancient law, it was purely civil; at Athens, for instance, if the stranger (a foreigner domiciled in a city) occurred to be the creditor of a citizen, he could not sue him in the courts for the payment of the debt, as the law did recognize no contract as valid for him.

Logically, law was not born of the idea of justice, but of religion and was not conceived as going further than it. An alien and a citizen might live side by side during long years without a legal relation between them. Law was nothing more than one phase of religion. Where there was no common religion, there was no common law.

In traditional Zeliangrong society, Pei is the religious authority as it controls and regulates the whole religious affairs of the village. Besides, the Pei's elders including the village priest (Taku) are entrusted to perform religious rites and rituals of the village. And they are also the judges of village court (Pei) who try all civil and criminal cases of the village. However, they are supposed to dispense justice under the guidance of the customary laws. This clearly suggests the religious origin of the law.

According to Sir Henry Maine, the penal law of early societies is not the law of crimes. It is the law of wrongs and it could be termed as Torts. Offences which are regarded as crimes are exclusively treated as torts. Theft, assault, violent robbery, libel, slander etc. all gave rise to an obligation and were all required by a payment of compensation. The true criminal law did not however come into existence till the year B.C. 149.

The Zeliangrong customary laws are also primitive rules of conduct as they are in operation from the time of ancient memory. The customary law with its primitive origin includes both the law of crimes and civil laws.

To be continued...