When is the Punishment? ‘Mystical Retribution’ and the Question of Time in Maasai Indigenous Law

Jonas Bens, Universität Hamburg

Scholarship on ‘law and time’ has highlighted the colonial underpinnings of how Euro-Western conceptions of law deal with time. So far, studies have mostly focused on how colonial fantasies of the ‘backwardness’ or 'timelessness' of non-European cultures were fundamental to the establishment of legal regimes in colonial contexts. In this paper, I argue from the perspective of normative pluralism that Euro-Western understandings of 'legal time' have also tended to impose and silence indigenous temporalities of justice. Drawing on ethnographic fieldwork on dispute resolution in a Maasai community in northern Tanzania, I present findings on how 'punishment' is conceptualised in Maasai legal thought. In contrast to Euro-Western understandings of punishment as the outcome of a legal process, Maasai legal thought suggests that several forms of non-human punishment (e.g. engoki, emoti, iloikop) - classical accounts in legal anthropology sometimes speak of 'mystical retribution' (Gluckman) - regularly precede and accompany a legal process. Human punishment (aar), which is usually the outcome of a legal process, is then seen as a relief from the continuing misfortunes that non-human punishment has brought to those disputants who do not have 'the truth' (esipata) on their side. These complex temporalities of punishment, found in many indigenous legal systems, raise important fundamental questions for legal theory: What can we learn about punishment by thinking about it in non-anthropocentric terms? What conceptual blind spots may have been created by modern approaches to legal theory that call for a narrowing of the scope of punishment (especially in liberal and radical scholarship)? What can we learn about the relationship between punishment and colonial violence from such a perspective of normative pluralism?
 

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