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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