Preface

The modern anthropological explorer, who goes into the field fully trained in theory, charged with problems, interests, and maybe preconceptions, is neither able nor well-advised to keep his observations within the limits of concrete facts and detailed data. He is bound to receive illumination on matters of principle, to solve some of his fundamental difficulties, to settle many moot points as regards general perspective. He is bound, for example, to arrive at some conclusions as to whether the primitive mind differs from our own or is essentially similar; whether the savage lives constantly in a world of supernatural powers and perils, or on the contrary, has his lucid intervals as often as any one of us; whether clan-solidarity is such an overwhelming and universal force, or whether the heathen can be as self-seeking and self-interested as any Christian.

In the writing up of his results the modern anthropologist is naturally tempted to add his wider, somewhat diffused and intangible experiences to his descriptions of definite fact; to present the details of custom, belief, and organization against the background of a general theory of primitive culture. This little book is the outcome of a field worker's yielding to such temptation. In extenuation of this lapse - if lapse it be - I should like to urge the great need for more theory in anthropological jurisprudence, especially theory born from actual contact with savages. I should also point out that in this work reflections and generalizations stand out clearly from the descriptive paragraphs. Last, not least, I should like to claim that my theory is not made of conjecture or hypothetical reconstruction but is simply an attempt at formulating the problem, at introducing precise concepts and dear definitions into the subject.

The circumstances under which this thesis came into being have also contributed towards its present form. The material was first prepared and the conclusions framed in response to an invitation from the Royal Institution of Great Britain, before which a paper was read (on the Forces of Law and Order in a Primitive Community) on Friday evening, 13th February, 1925. As often happens, I found myself with more material on my hands and many more conclusions framed than could be included in an hour's address. Some of these I have had the privilege of publishing in "Nature" (see Supplement, 6th February, 1926, and article, 15th August, 1925). The full version is contained in this little book.

I wish to express my thanks to the Council of the Royal Institution for the kind loan of blocks and the permission to reproduce them. To Sir Richard Gregory, the Editor of "Nature", I am indebted for allowing me to reprint the articles mentioned. I owe him much, moreover, for the help and encouragement I received from him in my earlier work.

In the preparation of this volume I received competent assistance from Mr. Raymond Firth, who is carrying on research work at the London School of Economics in the Department of Ethnology. I was able to secure his help through a grant from the Laura Spelman Rockefeller Memorial. The Board of this institution has of late devoted some special attention to the furtherance of anthropology, as a part of its interest in the development of the social sciences. The study of the rapidly vanishing savage races is one of those duties of civilization - now actively engaged in the destruction of primitive life - which so far has been lamentably neglected. The task is not only of high scientific and cultural importance, but also not devoid of considerable practical value, in that it can help the white man to govern, exploit, and "improve" the native with less pernicious results to the latter.

The Laura Spelman Rockefeller Memorial, through its enlightened interest in anthropology as a branch of the social studies, will earn a deep gratitude from present and future humanists in erecting a lasting monument to the noble woman in whose memory it has been founded.

B. M.

New York City.

March, 1926.

Introduction

Anthropology is still to most laymen and to many specialists mainly an object of antiquarian interest. Savagery is still synonymous with absurd, cruel, and eccentric customs, with quaint superstitions and revolting practices. Sexual licence, infanticide, head-hunting, couvade, cannibalism and what not, have made anthropology attractive reading to many, a subject of curiosity rather than of serious scholarship to others. There are, however, certain aspects of anthropology which are of a genuine scientific character, in that they do not lead us beyond empirical fact into realms of uncontrollable conjecture, in that they widen our knowledge of human nature, and are capable of a direct practical application. I mean such a subject, for example, as primitive economics, important for our knowledge of man's economic disposition and of value to those who wish to develop the resources of tropical countries, employ indigenous labour and trade with the natives. Or again, a subject such as the comparative study of the mental processes of savages, a line of research which has already proved fertile to psychology and might be made useful to those engaged in educating or morally improving the native. Last, but not least, there is the subject of primitive law, the study of the various forces which make for order, uniformity and cohesion in a savage tribe. The knowledge of these forces should have formed the foundation of anthropological theories of primitive organization and should have yielded the guiding principles of Colonial legislation and administration. A fuller knowledge of the so-called savages has revealed "Ye beastly devices of Ye heathen" as the product of firm law and of strict tradition, due to biological, mental and social needs of human nature, rather than as the outcome of unbridled passion and unfettered excess. Law and order pervade the tribal usages of primitive races, they govern all the humdrum course of daily existence, as well as the leading acts of public life, whether these be quaint and sensational or important and venerable. Yet of all branches of anthropology, primitive jurisprudence has received in recent times the scantiest and the least satisfactory treatment.

Anthropology has not always been so indifferent about savage justice and the methods of its administration as it is at present. About half a century ago there was a positive epidemic of research into primitive law, especially on the Continent, more particularly in Germany. It is enough to mention the names of Bachofen, Post, Bemhoft, Kohler and the other writers grouped round the "Zeitschrift für vergleichende Rechtswissenschaft" to remind the sociologist of the scope, volume and quality of the work done by them. This work, however, was heavily handicapped. The writers had to rely upon the data of the early amateur ethnographers - modern field-work of the trained specialist, done with method, purpose and knowledge of the problems, was at that time not yet in existence. In an abstract and complex subject such as primitive law, amateur observations are on the whole useless.

The early German students of savage law again were all and one committed to the hypothesis of 'primitive promiscuity' and 'group-marriage' just as their British contemporary, Sir Henry Maine, was handicapped by his too narrow adhesion to the patriarchal scheme. Most of these continental efforts in anthropological jurisprudence were directed to - in fact, wasted upon - the task of proving that Morgan's theories were correct. The myth of 'group-marriage' was casting its shadow on all their arguments and descriptions and it infected their juridical constructions with the kindred concepts of 'group-responsibility', 'group-justice', 'group-property' and 'communism', in short, with the dogma of the absence of individual rights and liabilities among savages.

Underlying all these ideas was the assumption that in primitive societies the individual is completely dominated by the group - the horde, the clan or the tribe - that he obeys the commands of his community, its traditions, its public opinion, its decrees, with a slavish, fascinated, passive obedience. This assumption, which gives the leading tone to certain modern discussions upon the mentality and sociality of savages, still survives in the French school of Durkheim, in most American and German works and in some English writings.

Thus handicapped by insufficient material and baseless assumptions, the early school of anthropological jurisprudence was driven into an impasse of artificial and sterile constructions. In consequence it proved incapable of real vitality, and the whole interest in the subject heavily slumped - in fact, almost entirely subsided - after its first short-lived boom. One or two important books on the subject appeared - Steinmetz's inquiries into the beginnings of punishment, Durkheim's analysis of early criminal and civil law - but, on the whole, the first impetus has proved so little inspiring that most modern anthropologists, both in theory and in field-work, ignore its very existence. In the standard manual Notes and Queries on Anthropology, 'law' appears neither in the index nor in the table of contents, and the few lines devoted to it under the heading of "Government: Politics", excellent as they are, do not correspond in any way to the importance of the subject. In the book of the late Dr. Rivers on Social Organization the problem of primitive law is discussed only incidentally, and, as we shall see, it is rather banished from primitive sociology than included in it by the author's brief reference.

This lacuna in modern anthropology is due, not to any oversight of primitive legality, but on the contrary to its over-emphasis. Paradoxical as it sounds, it is yet true that present-day anthropology neglects primitive law just because it has an exaggerated, and I will add at once, a mistaken idea of its perfection.

Part I. Primitive Law and Order

   I. The Automatic Submission to Custom and the Real Problem

When we come to inquire why rules of conduct, however hard, irksome, or unwelcome, are obeyed; what makes private life, economic cooperation, public events run so smoothly; of what, in short, consist the forces of law and order in savagery - the answer is not easy to give, and what anthropology has had to say about it is far from satisfactory. So long as it could be maintained that the 'savage' is really savage, that he follows what little law he has but fitfully and loosely, the problem did not exist. When the question became actual, when it became plain that hypertrophy of rules rather than lawlessness is characteristic of primitive life, scientific opinion veered round to the opposite point: the savage was made not only into a model of the law-abiding citizen, but it became an axiom that in submitting to all his tribal rules and fetters, he follows the natural trend of his spontaneous impulses; that in this way he glides, so to speak, along the line of least resistance.

The savage - so runs to-day's verdict of competent anthropologists - has a deep reverence for tradition and custom, an automatic submission to their biddings. He obeys them 'slavishly', 'unwittingly', 'spontaneously', through 'mental inertia', combined with the fear of public opinion or of supernatural punishment; or again through a 'pervading group sentiment if not group-instinct'. Thus we find the following in a recent book: "The savage is far from being the free and unfettered creature of Rousseau's imagination. On the contrary, he is hemmed in on every side by the customs of his people, he is bound in the chains of immemorial tradition not merely in his social relations, but in his religion, his medicine, in his industry, his art: in short, every aspect of his life" (E. Sidney Hartland in Primitive Law, p. 138). With all this we might agree, except that it seems doubtful whether the "chains of tradition" are identical or even similar in art and in social relations, in industry, and in religion. But when, immediately, we are told that "these fetters are accepted by him (the savage) as a matter of course; he never seeks to break forth" - we must enter a protest. Is it not contrary to human nature to accept any constraint as a matter of course, and does man, whether civilzed or savage, ever carry out unpleasant, burdensome, cruel regulations and taboos without being compelled to? And compelled by some force or motive which he catnot resist?

Yet this automatic acquiescence, this instinctive submission of every member of the tribe to its laws, is the fundamental axiom laid at the basis of the inquiry into primitive order and adherence to rule. Thus another foremost authority on the subject, the late Dr. Rivers, speaks in the book already mentioned of an "unwitting or intuitive method of regulating social life", which is, according to him, "closely connected with primitive communism." And he proceeds to tell us: "Among such a people as the Melanesians there is a group sentiment which makes unnecessary any definite social machinery for the exertion of authority, in just the same manner as it makes possible the harmonious working of communal ownership, and insures the peaceful character of a communistic system of sexual relations" (Social Organization, p. 169).

Thus here again we are assured that 'unwitting' or 'intuitive methods', 'instinctive submission' and some mysterious 'group-sentiment' account for law, order, communism and sexual promiscuity alike! This sounds altogether like a Bolshevik paradise, but is certainly not correct in reference to Melanesian societies, which I know at first hand.

A similar idea is expressed by a third writer, a sociologist, who has contributed more towards our understanding of the organization of savages from the point of view of mental and social evolution than perhaps any one living anthropologist. Professor Hobhouse, speaking of the tribes on a very low level of culture, affirms that "such societies, of course, have their customs, which are doubtless felt as binding by their members, but if we mean by law a body of rules enforced by an authority independent of personal ties of kinship and friendship, such an institution is not compatible with their social organization" (Morals in Evolution, 1915, p. 73). Here we have to question the phrase "felt as binding" and ask whether it does not cover and hide the real problem instead of solving it. Is there not, with regard to some rules at least, a binding mechanism, not perhaps enforced by any central authority, but backed up by real motives, interests and complex sentiments? Can severe prohibitions, onerous duties, very burdensome and galling liabilities, be made binding by a mere 'feeling'? We should like to know more about this invaluable mental attitude, but the author simply takes it for granted. Again, the minimum definition of law as the "body of rules enforced by an authority independent of personal ties", seems to me to be too narrow and not to lay the emphasis on the relevant elements. There are among the many norms of conduct in savage societies certain rules regarded as compulsory obligations of one individual or group towards another individual or group. The fulfilment of such obligations is usually rewarded according to the measure of its perfection, while non-compliance is visited upon the remiss agent. Taking our stand upon such a comprehensive view of law and inquiring into the nature of the forces which make it obligatory, we shall be able to arrive at much more satisfactory results than if we were to discuss questions of authority, government and punishment.

To take another representative opinion, that of one of the highest anthropological authorities in the United States, we find Dr. Lowie expressing a very similar view: "Generally speaking, the unwritten laws of customary usage are obeyed far more willingly than our written codes, or rather they are obeyed spontaneously." To compare the 'willingness' in obedience to law of an Australian savage with a New Yorker, or of a Melanesian with a nonconformist citizen of Glasgow, is a perilous proceeding and its results have to be taken very 'generally' indeed, until they lose all meaning. The fact is that no society can work in an efficient manner unless laws are obeyed 'willingly' and 'spontaneously'. The threat of coercion and the fear of punishment do not touch the average man, whether 'savage' or 'civilized', while, on the other hand, they are indispensable with regard to certain turbulent or criminal elements in either society. Again, there is a number of laws, taboos and obligations in every human culture which weigh heavily on every citizen, demand great self-sacrifice, and are obeyed for moral, sentimental or matter-of-fact reasons, but without any 'spontaneity'.

It would be easy to multiply statements and to show that the dogma of the automatic submission to custom dominates the whole inquiry into primitive law. In all fairness, however, it must be stressed that any shortcomings in theory or observation are due to the real difficulties and pitfalls of which this subject is so full.

The extreme difficulty of the problem lies, I think, in the very complex and diffuse nature of the forces which constitute primitive law. Accustomed as we are to look for a definite machinery of enactment, administration, and enforcement of law, we cast round for something analogous in a savage community and, failing to find there any similar arrangements, we conclude that all law is obeyed by this mysterious propensity of the savage to obey it.

Anthropology seems here to be faced by a similar difficulty as the one overcome by Tylor in his "minimum definition of religion". By defining the forces of law in terms of central authority, codes, courts, and constables, we must come to the conclusion that law needs no enforcement in a primitive community and is followed spontaneously. That the savage does break the law sometimes, though rarely and occasionally, has been recorded by observers and taken into account by builders of anthropological theory, who have always maintained that criminal law is the only law of savages. But that his observance of the rules of law under the normal conditions, when it is followed and not defied, is at best partial, conditional, and subject to evasions; that it is not enforced by any wholesale motive like fear of punishment, or a general submission to all tradition, but by very complex psychological and social inducements - all this is a state of affairs which modern anthropology has so far completely overlooked. In the following account I shall try to establish it for one ethnographic province, north-west Melanesia, and I shall show reasons why observations of similar nature to those carried out by myself should be extended to other societies in order to give us some idea about their legal conditions.

We shall approach our facts with a very elastic and wide conception of the problem before us. In looking for 'law' and legal forces, we shall try merely to discover and analyse all the rules conceived and acted upon as binding obligations, to find out the nature of the binding forces, and to classify the rules according to the manner in which they are made valid. We shall see that by an inductive examination of facts, carried out without any preconceived idea or ready-made definition, we shall be enabled to arrive at a satisfactory classification of the norms and rules of a primitive community, at a clear distinction of primitive law from other forms of custom, and at a new, dynamic conception of the social organization of savages. Since the facts of primitive law described in this article have been recorded in Melanesia, the classical area of 'communism' and 'promiscuity', of 'group-sentiment', 'clan-solidarity' and 'spontaneous obedience', the conclusions we shall be able to draw - which will dispose of these catch-words and all they stand for - may be of special interest.

   II. Melanesian Economics and the Theory of Primitive Communism

The Trobriand Archipelago, which is inhabited by the Melanesian community referred to, lies to the north-east of New Guinea and consists of a group of flat coral islands, surrounding a wide lagoon. The plains of the land are covered with fertile soil and the lagoon teems with fish, while both afford easy means of intercommunication to the inhabitants. Accordingly, the islands support a dense population mainly engaged in agriculture and fishing, but expert also in various arts and crafts and keen on trade and exchange.

Like all coral islanders, they spend a great deal of their time on the central lagoon. On a calm day it is alive with canoes carrying people or produce, or engaged in one of their manifold systems of fishing. A superficial acquaintance with these pursuits might leave one with an impression of arbitrary disorder, anarchy, complete lack of system. Patient and painstaking observations would soon reveal, however, not only that the natives have definite technical systems of catching fish and complex economic arrangements, but also that they have a close organization in their working teams, and a fixed division of social functions.

Thus, within each canoe it would be found that there is one man who is its rightful owner, while the rest act as a crew. All these men, who as a rule belong to the same sub-clan, are bound to each other and to their fellow-villagers by mutual obligations; when the whole community go out fishing, the owner cannot refuse his canoe. He must go out himself or let some one else do it instead. The crew are equally under an obligation to him. For reasons which will presently become clear, each man must fill his place and stand by his task. Each man also receives his fair share in the distribution of the catch as an equivalent of his service. Thus the ownership and use of the canoe consist of a series of definite obligations and duties uniting a group of people into a working team.

What makes the conditions even more complex is that the owners and the members of the crew are entitled to surrender their privileges to any one of their relatives and friends. This is often done, but always for a consideration, for a repayment. To an observer who does not grasp all the details, and does not follow all the intricacies of each transaction, such a state of affairs looks very much like communism: the canoe appears to be owned jointly by a group and used indiscriminately by the whole community.

Dr. Rivers in fact tells us that "one of the objects of Melanesian culture which is usually, if not always, the subject of common ownership is the canoe", and further on, in reference to this statement, he speaks about "the great extent to which communistic sentiments concerning property dominate the people of Melanesia" (Social Organization, pp. 106 and 107). In another work, the same writer speaks about "the socialistic or even communistic behaviour of such societies as those of Melanesia" (Psychology and Politics, pp. 86 and 87). Nothing could be more mistaken than such generalizations. There is a strict distinction and definition in the rights of every one and this makes ownership anything but communistic. We have in Melanesia a compound and complex system of holding property, which in no way partakes of the nature of 'socialism' or 'communism'. A modern jointstock company might just as well be called a 'communistic enterprise'. As a matter of fact, any descriptions of a savage institution in terms such as 'communism', 'capitalism' or 'joint-stock company' borrowed from present-day economic conditions or political controversy, cannot but be misleading.

The only correct proceeding is to describe the legal state of affairs in terms of concrete fact. Thus, the ownership of a Trobriand fishing canoe is defined by the manner in which the object is made, used and regarded by the group of men who produced it and enjoy its possession. The master of the canoe, who acts at the same time as the head of the team and as the fishing magician of the canoe, has fust of all to finance the building of a new craft, when the old one is worn out, and he has to maintain it in good repair, helped in this by the rest of his crew. In tais they remain under mutual obligations to one another to appear each at his post, while every canoe is tound to come when a communal fishing has been arranged.

In using the craft, every joint owner has a right to a certain place in it and to certain duties, privileges, and benefits associated with it. He has his post in the canoe, he has his task to perform, and enjoys tie corresponding title, either of 'master' or 'steersnan', or 'keeper of the nets', or 'watcher for fish'. His position and title are determined by the combined action of rank, age, and personal ability. Each canoe also has its place in the fleet and its part to play in the manoeuvres of joint fishing. Thus on a close inquiry we discover in this pursuit a definite system of division of functions and a rigid system of mutual obligations, into which a sense of duty and the recognition of the need of co-operation enter side by side with a realization of self-interest, privileges and benefits. Ownership, therefore, can be defined neither by such words as 'communism' nor 'individualism', nor by reference to 'joint-stock company' system or 'personal enterprise', but by the concrete facts and conditions of use. It is the sum of duties, privileges and mutualities which bind the joint owners to the object and to each other.

Thus, in connexion with the first object which attracted our attention - the native canoe - we are met by law, order, definite privileges and a well-developed system of obligations.

   III. The Binding Force of Economic Obligations

To enter more deeply into the nature of these binding obligations, let us follow the fishermen to the shore. Let us see what happens with the division of the catch. In most cases only a small proportion of it remains with the villagers. As a rule we should find a number of people from some inland community waiting on the shore. They receive the bundles of fish from the fishermen and carry them home, often many miles away, running so as to arrive while it is still fresh. Here again we should find a system of mutual services and obligations based on a standing arrangement between two village communities. The inland village supplies the fishermen with vegetables: the coastal community repays with fish. This arrangement is primarily an economic one. It has also a ceremonial aspect, for the exchange has to be done according to an elaborate ritual. But there is also the legal side, a system of mutual obligations which forces the fisherman to repay whenever he has received a gift from his inland partner, and vice versa. Neither partner can refuse, neither may stint in his return gift, neither should delay.

What is the motive force behind these obligations? The coastal and inland villages respectively have to reply upon each other for the supply of food. On the coast the natives never have enough vegetable food, while inland the people are always in need of fish. Moreover, custom will have it that on the coast all the big ceremonial displays and distributions of food, which form an extremely important aspect of the public life of these natives, must be made with certain specially large and fine varieties of vegetable food, which grow only on the fertile plains inland. There, on the other hand, the proper substance for a distribution and feast is fish. Thus to all other reasons of value of the respectively rarer food, there is added an artificially, culturally created dependence of the two districts upon one another. So that on the whole each community is very much in need of its partners. If at any time previously these have been guilty of neglect, however, they know that they will be in one way or another severely penalized. Each community has, therefore, a weapon for the enforcement of its rights: reciprocity.

This is not limited to the exchange of fish for vegetables. As a rule, two communities rely upon each other in other forms of trading and other mutual services as well. Thus every chain of reciprocity is made the more binding by being part and parcel of a whole system of mutualities.

The end of demo version.