Kinds of evidence
There is some difference in the nature of evidence in primitive and civilized law. The following two kinds of evidences are called for in deciding the criminal cases in primitive societies.
(a) Oath. The offender has to take an oath and then he is asked to state whether he has committed the offence or not. It is generally believed that, if the offender tells a lie, he falls a prey to the supernatural anger for taking a false oath.
(b) Ordeal. Sometimes the persons accused are put to torture in primitive societies before the declaration of judgement in criminal cases. If the accused persons escape without injury, they are acquitted as they are supposed to be not guilty.
In some cases, for example, the accused is asked to put his hand in boiling water or i: and if he can do so without causing an injury to his person, he is let free. But if his hand gets burnt, he is believed to have committed the said crime. The belief behind this kind of treatment is that the supernatural powers help an innocent person and therefore his hand, even when it is put in boiling water or oil, does not get burnt.
Kinds of punishment
While punishment is meted out in the shape of imprisonment or fine in a civilized society, there are no such prison institutions in primitive societies. In most of the primitive societies there are provisions for mutilation which often result in the death of the culprit.
Capital sentence is generally given in a case of homicide; but sometimes the death penalty is given to one of his family members or to one of his kins instead of inflicting it upto the person who has actually committed homicide.
They-believe that it is not the individual who is regarded to have been wronged but the whole kin-group to which he belonged and his kin-group, therefore avenges itself on the kin- group of the accused and not necessarily on the accused himself.
In primitive societies all the persons who have committed a similar crime are not, punished in a similar manner. The same crime may be differently punished according to who has been wronged.
The misbehaviour done to an ordinary individual is lightly punished, when the same misbehaviour done to a chieftain is punished severely. For example, adultery with the wife of a king or chieftain is a capital crime and punished with death whereas adultery with some ordinary individual is not punished so severely.
The punishment of imposing a fine is not found among the punishments for crimes in primitive societies. Where fines are charged in a primitive society, they are paid by way of compensation to the aggrieved party.
The accused, very often, has to give a feast to the whole village in compensation for his crime. Even in case where fines are paid by way of compensation for the wrong done, attention is paid to the person who has done the wrong as well as to the person who has been wronged, if a person of a low standard offends a person of a high status, the find imposed is very heavy. But, if a person of a high status offends an ordinary person, the amount of compensation is very small.
From the above discussion, it is clear that primitive law is obeyed naturally knowingly and blind-folded. Why is it so ? As has been said before primitive law depends on public opinion moral principle and religious principle.
In this way disobedience to law is not only a crime, but is also a sin and an improper act. If an offender is not punished for his offence, it is supposed that supernatural powers would punish him for his sins, and sometimes the members of his family and even his kin-group are civilized by the wrath of supernatural powers along with him.
All relations among people of primitive society are natural. Every member knows very well that if he himself wants to be treated well by others, he will also have to treat them well. In this way, their duties are reciprocal and it becomes the religious duty of every individual to fulfil them. These reciprocal duties are primitive laws and obedience to primitive laws, therefore, goes on in a natural way.