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23 J.L. & Econ. 1 (1980)
A Theory of Primitive Society, with Special Reference to Law

handle is hein.journals/jlecono23 and id is 5 raw text is: A THEORY OF PRIMITIVE SOCIETY, WITH SPECIAL REFERENCE TO LAW RICHARD A. POSNER* University of Chicago Law School INTRODUCTION THIS paper uses economic theory to explain some of the characteristic social, including legal, institutions of primitive and archaic societies. The literary remains of a number of early civilizations contain detailed descrip- tions of the preliterate societies out of which modern Western civilization evolved. (The poems of Homer, the Old Testament, and the Norse Sagas are examples of such literary records.) We may call these archaic societies. In the nineteenth century anthropologists and colonial administrators began compiling detailed descriptions of primitive societies-African, North Amer- ican Indian, Polynesian, and many others. The strong similarity of the so- cial, including legal, institutions of primitive and archaic societies justifies discussing them together. For want of a better term, and with no pejorative intent, I shall refer to both types as primitive. My working definition of primitive is not poor, by modern standards, but preliterate (thus I exclude, for example, the Roman Empire). Because most preliterate societies lack either a complex economy or an effective government, and most literate societies have both, literacy is a good criterion for distinguishing primitive from more advanced societies. Why this should be so will be considered later. The applicability of the economic model of human behavior to primitive man has been debated extensively by anthropologists, with occasional join- der in the debate by economists such as Frank Knight. I One group of an- * I am grateful to Gary Becker both for his comments on a previous draft and for discussions of the subject matter of this paper; to Robert Bourgeois, Dennis Carlton, Ronald Coase, Frances Dahlberg, Arthur DeVany, David Friedman, Amyra Grossbard, Anthony Kronman, Arthur Leff, Douglass North, Frederic Pryor, James Redfield, Steven Shavell, George Stigler, and participants in the Industrial Organization Workshop of the University of Pennsylvania, for comments; to Robert Bourgeois, for research assistance; and to the Center for the Study of the Economy and the State at the University of Chicago, for financial support. I For the flavor of the debate see the essays in the first half of Economic Anthropology (Edward E. LeClair, Jr. & Harold K. Schneider eds. 1968); and for a brief summary Harold K. Schneider, Economic Man 2-17 (1974). Knight's contribution is Anthropology and Economics, 49 J. Pol. Econ. 247 (1941), reprinted in Melville J. Herskovits, Economic Anthropology 508 (rev. ed. 1952).

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