Collective Oath Compurgation in Anglo-Saxon England and African states

Abstract

Social historians and historians of jurisprudence have, on occasion, drawn attention to the close resemblances between Anglo-Saxon society at the time when it is said to have been dominated by kinship relationships and the large kingdom states in Africa. The truth of the matter is not so easily come by, however, since the content of pre-medieval social relationships linking persons of different station was inadequately recorded by early writers. The faulty character of early records becomes evident in the area of jurisprudence, especially whenever attempts are made to assess the extent to which kinbased social relationships invaded the legal principles in Anglo-Saxon society in matters of dispute and settlement. This notwithstanding, it seems an instructive sociological task to reconsider comparatively with African state societies, wherever possible, certain of those legal ideas that allegedly formed the basis for judicial decision-making in early English courts before the introduction of trial by jury. The interpretation of these early ideas, set against the background of rights, duties, and obligations that obtained between persons of set status, should define more clearly than before whatever general agreement exists between these legal principles and those that obtain in African state societies. A more ambitious treatment of the subject than is attempted in this essay would extend beyond Anglo-Saxon society. But, because of the faulty character of early records, I limit this literary exercise to the period before William the Conqueror crossed the Channel.

Words that Burn: On the Manners and Implications of Oath-Taking Practices in Ethiopian Amhara Customary Law, Nineteenth–Twentieth Centuries

“…Shack 1966). He authored the quoted essay on collective oath or compurgation in England, with comparison to African states, after a suggestion by Max Gluckman (Shack 1979). Shack's papers were discovered late in the process of finalizing this article.…”

The Cultural Evolution of Oaths, Ordeals, and Lie Detectors

“…8402, Franks: 2004; Japanese under the Kamakura shogunate: Ishii, 1964, p. 526;Igbo: Meek, 1937, p. 147;ancient Hindus: Rocher, 1964, p. 335; early Anglo-Saxons: Shack, 1979, p. 2). The few exceptions, such as Germanic law (Silving, 1959(Silving, , p. 1340, or later Anglo-Saxon law (Shack, 1979), in which the oath could trump some evidence, can be explained by the use of the oaths I'll turn to next: the oath as power move.…”

“…4 In societies structured along kin-based groups, the oath as a power move sometimes takes the form of compurgation: the oath-taker must gather the support of a given (sometimes large) number of co-oath takers (compurgators) for their oath to be valid. Compurgation can be found in many European societies in the first millennium (Shack, 1979; and in some places, such as Montenegro, up to the 19 th century, see Boehm, 1987, p. 123), in early Islamic law (Hamidullah, 1964, p. 192), and in many African cultures (Shack, 1979). Since compurgators are chosen based on their relationship with the oath-taker, rather than because they have knowledge of relevant facts, compurgation reveals how much oaths have become pure power moves in some cultures.…”

“…Indeed, often both parties swear an oath (for examples of African customary law: Allott, 1964, p. 75; early Muslim law: Brunschvig, 1964, p. 179), meaning that one of the oaths is a perjury. Indeed, contemporary commentators often deplored the prevalence of perjury (for ancient Athens, see sources cited in Bonner, 1905, p. 88;medieval Europe: Davies & Fouracre, 1992, p. 16;Kerr, Forsyth, & Plyley, 1992, p. 574;Shack, 1979).…”