38 Hastings L.J. 195 (1986-1987)
Adultery, Law, and the State: A History

handle is hein.journals/hastlj38 and id is 209 raw text is: Note

Adultery, Law, and the State: A History
If your subject is law, the roads are plain to anthropology .... It is
perfectly proper to regard and study the law simply as a great anthro-
pological document.*
Our legal system is to a large extent the product of the reaction of
authority to the seeking of private vengeance by wronged parties. To
ensure social control, the state must assert a monopoly of force, prohibit-
ing its use by any other than itself.1 This monopoly of force is achieved
through law. Law, by making the use of force a monopoly of the com-
munity, pacifies the community.2 A monopolization of violence is
achieved by the gradual institutionalization of vengeance through law.
Institutionalization of vengeance refers to the process by which violent
revenge comes to be exercised lawfully only by the state or under its
authority; in other words, violent revenge becomes part of the law by
being exercised only at the behest of the state.
Traditionally, such legal theorists as Maine and Holmes have seen
the state's institutionalization of the personal desire for vengeance as an
important ingredient in the development of the law.3 The husband
whose wife is murdered might want to kill the killer. The state exercises
the husband's vengeance by itself killing the killer and prohibiting the
husband from doing so. Thus, the state institutionalizes vengeance,
makes it part of the system, by co-opting it. Maine's discussion of the
Roman law of theft is a classic example of this co-optation.4
This Note argues that the state can institutionalize vengeance by
permission as well as by co-optation. Such permission may be deliber-
*  O.W. HOLMES, Law in Science and Science in Law, in COLLECTED LEGAL PAPERS
210, 212 (1920).
2. Id. [T]he societies of man have from the outset wrestled with the problem of main-
taining internal peace and harmony. E. HOEBEL, THE LAW OF PRIMITIVE MAN 329 (1954).
3. O.W. HOLMES, THE COMMON LAW 2 (1881) (It is commonly known that the early
forms of legal procedure were grounded in vengeance.); G. SAWER, LAW IN SOCIETY 40
(1965) (Putting aside reciprocity, religion, and sorcery, the constant sanctioning force in
primitive society is that of self-help, gradually contained and institutionalized by social ac-
tion.); W. SEAGLE, QUEST FOR LAW 229 (1941) (Indeed, public punishment is still only a
thinly disguised system of state vengeance . . .
4. See infra section I.B.


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