III. Systems of Law in Conflict
Primitive law is not a homogeneous, perfectly unified body of rules, based upon one principle developed into a consistent system. So much we know already from our previous survey of legal facts in the Trobriand Islands. The law of these natives consists on the contrary of a number of more or less independent systems, only partially adjusted to one another. Each of these — matriarchy, father-right, the law of marriage, the prerogatives and duties of a chief and so on — has a certain field completely its own, but it can also trespass beyond its legitimate boundaries. This results in a state of tense equilibrium with an occasional outbreak. The study of the mechanism of such conflicts between legal principles, whether overt or masked, is extremely instructive and it reveals to us the very nature of the social fabric in a primitive tribe. I shall therefore proceed now to the description of one or two occurrences and then to their analysis.
I shall describe first a dramatic event which illustrates the conflict between the main principle of law, Mother-right, and one of the strongest sentiments, paternal love, round which there cluster many usages, tolerated by custom, though in reality working against the law.
The two principles Mother-right and Father-love are focussed most sharply in the relation of a man to his sister’s son and to his own son respectively. His matrilineal nephew is his nearest kinsman and the legal heir to all his dignities and offices. His own son on the other hand is not regarded as a kinsman; legally he is not related to his father, and the only bond is the sociological status of marriage with the mother.23
Yet in the reality of actual life the father is much more attached to his own son than to his nephew. Between father and son there obtains invariably friendship and personal attachment; between uncle and nephew not infrequently the ideal of perfect solidarity is marred by the rivalries and suspicions inherent in any relationship of succession.
Thus the powerful legal system of Mother-right is associated with a rather weak sentiment, while Father-love, much less important in law, is backed by a strong personal feeling. In the case of a chief whose power is considerable, the personal influence outweighs the ruling of the law and the position of the son is as strong as that of the nephew.
That was the case in the capital village of Omarakana, the residence of the principal chief, whose power extends over the whole district, whose influence reaches many archipelagoes, and whose fame is spread all over the eastern end of New Guinea. I soon found out that there was a standing feud between his sons and nephews, a feud which assumed a really acute form in the ever recurrent quarrels between his favourite son Namwana Guya’u and his second eldest nephew Mitakata.
The final outbreak came when the chief’s son inflicted a serious injury on the nephew in a litigation before the resident government official of the district. Mitakata, the nephew, was in fact convicted and put to prison for a month or so.
When the news of this reached the village, the short exultation among the partisans of Namwana Guya’u was followed by a panic, for everyone felt that things had come to a crisis. The chief shut himself up in his personal hut, full of evil forebodings of the consequences for his favourite, who was felt to have acted rashly and in outrage of tribal law and feeling. The kinsmen of the imprisoned young heir to chieftainship were boiling with suppressed anger and indignation. As night fell, the subdued village settled down to a silent supper, each family over its solitary meal. There was nobody on the central place — Namwana Guya’u was not to be seen, the chief To’uluwa hid in his hut, most of his wives and their families also remained indoors. Suddenly a loud voice rang out across the silent village. Bagido’u, the heir apparent, and eldest brother of the imprisoned man, standing before his hut, spoke out, addressing the offender of his family:
„Namwana Guya’u, you are a cause of trouble. We, the Tabalu of Omarakana, allowed you to stay here, to live among us. You had plenty of food in Omarakana, you ate of our food, you partook of the pigs brought to us as a tribute and of the fish. You sailed in our canoe. You built a hut on our soil. Now you have done us harm. You have told lies. Mitakata is in prison. We do not want you to stay here. This is our village! You are a stranger here. Go away! We chase you away! We chase you out of Omarakana.”
These words were uttered in a loud piercing voice, trembling with strong emotion, each short sentence spoken after a pause, each like an individual missile, hurled across the empty space to the hut where Namwana Guya’u sat brooding. After that the younger sister of Mitakata also arose and spoke, and then a young man, one of the maternal nephews. Their words were almost the same as in the first speech, the burden being the formula of chasing away, the yoba. The speeches were received in deep silence. Nothing stirred in the village. But, before the night was over, Namwana Guya’u had left Omarakana for ever. He had gone over and settled in his own village, in Osapola the village whence his mother came, a few miles distant. For weeks his mother and sister wailed for him with the loud lamentations of mourning for the dead. The chief remained for three days in his hut, and when he came out looked older and broken up by grief. All his personal interest and affection were on the side of his favourite son, of course. Yet he could do nothing to help him. His kinsmen had acted in complete accordance with their rights and, according to tribal law, he could not possibly dissociate himself from them. No power could change the decree of exile. Once the ’Go away’ — (bukula), ’we chase thee away’ — (kayabaim), were pronounced, the man had to go. These words, very rarely uttered in dead earnest, have a binding force and almost ritual power when pronounced by the citizens of a place against a resident outsider. A man who would try to brave the dreadful insult involved in them and remain in spite of them, would be dishonoured for ever. In fact, anything but immediate compliance with a ritual request is unthinkable for a Trobriand Islander.
The chief’s resentment against his kinsmen was deep and lasting. At first he would not even speak to them. For a year or so, not one of them dared to ask to be taken on overseas expeditions by him, although they were fully entitled to this privilege. Two years later in 1917, when I returned to the Trobriands, Namwana Guya’u was still resident in the other village and keeping aloof from his father’s kinsmen, though he frequently paid visits to Omarakana in order to be in attendance on his father, especially when To’uluwa went abroad. The mother had died within a year after the expulsion. As the natives described it: „She wailed and wailed, refused to eat, and died.” The relations between the two main enemies were completely broken and Mitakata, the young chieftain who had been imprisoned, had sent away his wife who belonged to the same subclan as Namwana Guya’u. There was a deep rift in the whole social life of Kiriwina.
The incident was one of the most dramatic events which I have ever witnessed in the Trobriands. I have described it at length, as it contains a clear illustration of Mother-right, of the power of tribal law and of the passions which work in spite of it.
The case, though exceptionally dramatic and telling, is by no means anomalous. In every village where there is a chief of high rank, an influential notable or a powerful sorcerer, he favours his sons and allows them privileges, which are, strictly speaking, not theirs. Often this produces no antagonisms within the community — when both son and nephew are moderate and tactful. Kayla’i, the son of M’tabalu, the recently deceased chief of highest rank of Kasanai, lives on in his father’s village, carries on most of the communal magic and is on excellent terms with his father’s successor. In the cluster of villages of Sinaketa, where there reside several chiefs of high rank, some of the son-favourites are good friends with the rightful heirs, some in open hostility to them.
In Kavataria, the village adjoining the Mission and the Government Station, the last chief’s son, one Dayboya, has completely ousted the real masters, supported in this by European influence, which naturally worked for patrilineal claims. But the conflict, more acute nowadays and carried on with greater force by the paternal principle, because of the backing it inevitably receives from the white man, is as old as mythological tradition. It is expressed in the stories told for amusement, the kukwanebu, where latula guya’u, the chief’s son, is a standard type, arrogant, pampered, pretentious, often the butt of practical jokes. In serious myths, he is sometimes the villain, sometimes the contending hero — but the opposition of the two principles is clearly marked. But most convincing as to the age and cultural depth of the conflict, is the fact that it is embedded in a number of institutions, with which we shall presently become acquainted. Among the people of low rank, the opposition between Mother-right and Father-love also exists, and it shows itself in the father’s tendency to do all he can for his son, at the nephew’s expense. And again after the father’s death the son has to return to the heirs practically all the benefits and possessions received during the father’s lifetime. This naturally leads to a good deal of discontent, friction, and round-about methods of arriving at a satisfactory settlement.
We are, then, once more face to face with the discrepancy between the ideal of law and its realization, between the orthodox version and the practice of actual life. We have already met with it in exogamy, in the system of counter-magic, in the relation between sorcery and law, and, indeed, in the elasticity of all the rules of civil law. Here, however, we find the very foundations of the tribal constitution challenged, indeed systematically flouted by a tendency entirely incompatible with it. Mother-right as we know is the most important and the most comprehensive principle of law, underlying all their customs and institutions. It rules that kinship has to be counted through females only and that all social privileges follow the maternal line. Thus it excludes the legal validity of a direct bodily tie between father and child and of any filiation in virtue of this tie.24 With all this, the father loves the child invariably and this sentiment finds a limited recognition in law; the husband has the right and duty to act as a guardian to his wife’s children till puberty. This, of course, is the only line which law can possibly take in a culture with patrilocal marriage. Since small children cannot be severed from the mother, since she has to be with her husband, often at a distance from her own people, since she and her children need a male guardian and protector on the spot — the husband necessarily fulfils this rôle and he does it by strict and orthodox law. The same law, however, orders the boy — not the girl, who remains with the parents till marriage — to leave the father’s house at puberty and to move to his mother’s community and pass into the tutelage of his maternal uncle. This, on the whole, runs counter to the wishes of the father, of the son and of the latter’s uncle — the three men concerned, with the result that there has grown a number of usages, tending to prolong paternal authority and to establish an additional bond between father and son. The strict law declares that the son is citizen of the maternal village, that in his father’s he is but a stranger (tomakava) — usage allows him to remain there and to enjoy most of the privileges of citizenship. For ceremonial purposes, in a funeral or mourning performance, in a feast and as a rule in fight, he will stand side by side with his maternal uncle. In daily execution of nine-tenths of all the pursuits and interests of life he is bound to his father.
The usage of keeping the son after puberty, often after marriage, is a regular institution: there exist definite arrangements to meet it, it is done according to strict rules and definite procedure, which make the usage anything but clandestine and irregular. There is first the accredited pretext that the son remains there to be able better to fill his father’s yam-house, which he does in the name of his mother’s brother and as his successor. In the case of a chief again there are certain offices, considered to be most appropriately filled by the chief’s own son. When this latter marries he builds a house on his father’s site, near the father’s own dwelling.
The son naturally has to live and eat, he must therefore make gardens and carry on other pursuits. The father gives him a few baleko (garden plots) from his own lands, gives him a place in his canoe, grants him rights of fishing — hunting is of no importance in the Trobriands — equips him with tools, nets and other fishing tackle. As a rule, the father goes further. He allows his son certain privileges and gives him presents, which by right he should keep till he hands them on to his heirs. It is true that he will give such privileges and presents to his heirs during his life-time, when they solicit it by a payment called pokala. He cannot even refuse the deal. But then his younger brother or his nephew has substantially to pay for land, magic, Kula rights, heirlooms, or ` ’mastership’ in dances and ceremonies; even though they belong to him by right and he would inherit them in any case. Now established usage allows the man to give such valuables or privileges to the son free of charge. So that here the usage, established but non-legal, not only takes great liberties with the law, but adds insult to injury by granting the usurper considerable advantages over the rightful owner.
The most important arrangement by which a temporary father-line is smuggled into Mother-right is the institution of cross-cousin marriage. A man in the Trobriands who has a son and whose sister gives birth to a girl child has the right to ask that this infant be betrothed to his son. Thus his grandchildren will be of his own kin, and his son will become the brother-in-law of the heir to chieftainship. This latter will, therefore, be under an obligation to supply the son’s household with food and in general to be a helpmate to his brother-in-law and protector of his sister’s family. Thus the very man on whose interest the son is likely to encroach is prevented from resenting it and, indeed, made to regard it as his own privilege. Cross-cousin marriage in the Trobriands is an institution by which a man can secure for his son a definite though roundabout right to remain for life in the father’s commmity, through an exceptional matrilocal marriage, and enjoy almost all the privileges of full citizenship.
Thus round the sentiment of Father-love there crystallizes a number of established usages, sanctioned by tradtion and regarded as the most natural course by the community. Yet they are contrary to strict law or involve exceptional and anomalous proceeding such as matrilocal marriage. If opposed and protested against in the name of the law, they must give way to it. Cases are on record, when the son, even though married to his father’s niece, had to leave the community. And not infrequently the heirs put a stop to their uncle’s illegal generosity, by demanding with pokala what he is about to give to his son. But any such opposition gives offence to the man in power, provokes hostilities and frictions, and is resorted to only in extreme cases.
IV. The Factors of Social Cohesion in a Primitive Tribe
In analysing the clash between Mother-right and Father-love, we have focussed our attention on the personal relations between the man, his son and his nephew respectively. But the problem is also that of the unity of the clan. For the group of two formed by the man in power (whether chief, notable, village headman, or sorcerer) and his heir is the very core of the matrilineal clan. The unity, homogeneity, and solidarity of the clan can be no greater than that of its core, and since we find that this core is fissured, that there are normally tensions and antagonisms between the two men, we cannot accept the axiom that the clan is a perfectly welded unit. But the ’clan-dogma’ or ’sib-dogma’, to use Dr. Lowie’s apposite expression, is not without its foundations, and though we have shown that in its very nucleus the clan is split, and also that it is not homogeneous as regards exogamy, it will be good to show exactly how much truth there is in the contention of clan unity.
It may be stated at once that here, again, Anthropology has taken over the orthodox native doctrine or rather their legal fiction at its face value, and has been thus duped by mistaking the legal ideal for the sociological realities of tribal life. The position of native law in this matter is consistent and clear. Accepting Mother-right as the exclusive principle of kinship in legal matters, and applying it to its furthest consequences, the native divides all human beings into those connected with himself by the matrilineal tie whom he calls kinsmen (veyola), and those who are not thus related, and whom he calls strangers (tomakava). This doctrine then is combined with the ’classificatory principle of Kinship’, which fully governs only the vocabulary, but to a limited extent also influences legal relations. Both Mother-right and the classificatory principle are further associated with the totemic system, by which all human beings fall into four clans, subdivided further into an irregular number of subclans. A man or woman is a Malasi, Lukuba, Lukwasisiga, or Lukulabuta, of such and such subclan, and this totemic identity is as fixed and definite as sex, colour of skin, or size of body; it does not cease with death, the spirit remaining what the man has been, and it existed before birth, the ’spirit-child’ being already member of a clan and sub-clan. Membership in sub-clan means a common ancestress, unity of kinship, unity of citizenship in a local community, common title to lands and co-operation in many economic and in all ceremonial activities. Legally it implies the fact of common clan and sub-clan name, common responsibilities in vendetta (lugwa), the rule of exogamy, finally the fiction of an overweening interest in one another’s welfare, so that by a death the subclan first and to some extent the clan are considered bereft and the whole mourning ritual is tuned to this traditional view. The unity of the clan and still more of the sub-clan is, however, expressed most tangibly in the great festive distributions (sagali), in which the totemic groups play a game of ceremonially-economic give and take. Thus there is a multiple and a real unity of interests, activities and necessarily some feelings, uniting the members of a sub-clan and the component sub-clans into a clan and this fact is very strongly emphasized in many institutions, in mythology, in vocabulary and in the current sayings and traditional maxims.
But there is also the other side to the picture, of which we have had clear indications already, and this we must concisely formulate. First of all, though all ideas about kinship, totemic division, unity of substance, social duties, etc., tend to emphasize the ’clan dogma’, not all the sentiments follow this lead. While in any contest of social, political, or ceremonial nature a man through ambition, pride, and patriotism invariably sides with his matrilineal kindred, softer feelings, loving friendship, attachments make him often neglect clan for wife, children, and friends, in the ordinary situations of life. Linguistically, the term veyogu (my kinsman) has an emotional colouring of cold duty and pride, the term lubaygu (my friend and my sweetheart), on the other hand, possesses a distinctly warmer, more intimate tone. In their after death beliefs, too, the ties of love, conjugal attachment and friendship are made — in a less orthodox but more personal belief — to endure into the spirit world, even as totemic identity endures.
As to the definite duties of the clan, we have seen in detail, on the example of exogamy, how much elasticity, evasion, and breach there is. In economic matters as we know already, the exclusiveness of clan co-operation suffers a serious leakage through the father’s tendency to give to his son and to take him into clan enterprises. Lugwa (the vendetta) is carried out but seldom: the payment of lula (peace-making price) is again a traditional form of compensation for, really of evasion of the sterner duty. In sentiment, the father or the widow is often far more keen on avenging the murdered one’s death than his kinsmen are. On all occasions when the clan acts as one economic unit in ceremonial distributions, it remains homogeneous only with regard to other clans. Within, strict accounts are kept between the component sub-clans and within the sub-clan between individuals. Thus here again the unity exists on one side, but it is combined on the other with a thorough-going differentiation, with strict watch over the particular self-interests, and last but not least with a thoroughly business-like spirit not devoid of suspicion, jealousy and mean practices.
If a concrete survey of the personal relations within the sub-clan were taken, the strained and distinctly unfriendly attitude between maternal uncle and nephew as we saw it in Omarakana, would be by no means infrequently found. Between brothers sometimes there exists real friendship, as was the case with Mitakata and his brothers, and with Namwana Guya’u and his. On the other hand, strong hatreds and acts of violence and hostility are on record both in legend and actual life. I shall give a concrete example of fatal disharmony within what should be the nucleus of a clan: a group of brothers.
In a village quite close to where I was camping at that time, there lived three brothers, the eldest of whom, the headman of the clan, was blind. The youngest brother used to take advantage of this infirmity and to gather the betel-nut from the palms even before it was properly ripe. The blind man was thus deprived of his share. One day when he discovered again that he was cheated of his due, he broke into a passion of fury, seized an axe, and entering his brother’s house in the dark, he succeeded in wounding him. The wounded man escaped and took refuge in the third brother’s house. This one, indignant at the outrage done to the youngest brother, took a spear and killed the blind man. The tragedy had a prosaic ending, for the murderer was put into jail for one year by the magistrate. In the olden days — on this all my informants were unanimous — he would have committed suicide.
In this case we meet the two standard criminal acts, theft and murder, combined and it will be well to make a brief digression on them. Neither delict plays any considerable part in the life of the Trobriand natives. Theft is classified under two concepts: kwapatu (lit. to catch hold), which word is applied to unlawful appropriation of objects of personal use, implements, and valuables; and vayla’u, a special word, applied to theft of vegetable food either from gardens or yam-houses, also used when pigs or fowl are purloined. While the thieving of personal objects is felt to be a greater nuisance, stealing of food is more despicable. There is no greater disgrace to a Trobriander than to be without food, in need of it, to beg for it, and an admission by act that one has been in such straits as to steal it entails the greatest humiliation conceivable. Again, since the theft of valuables is almost out of question, because they are all earmarked,25 thieving of personal objects cannot inflict any serious loss on the rightful owner. The penalties in either case would consist in the shame and ridicule which covers the culprit and, indeed, all cases of theft brought to my notice were perpetrated by feeble-minded people, social outcasts, or minors. Depriving the white man of his superfluous possessions, such as trade goods, tinned food or tobacco, which he keeps locked in a niggardly fashion without using, is in a class by itself, and is naturally not considered a breach of law, morality or gentlemanly manners.
A murder is an extremely rare occurrence. In fact, apart from the case just described, only one occurred during my residence: the spearing of a notorious sorcerer at night, while he was surreptitiously approaching the village. This was done in defence of the sick man, the victim of the sorcerer, by one of the armed guard who keep watch during the night on such occasions.
A few cases are told of killing as punishment for adultery caught in flagranti26, insults to people of high rank, brawls and skirmishes. Also, of course, killing during regular war. In all cases when a man is killed by people of another sub-clan, there is the obligation of talion27. This, in theory, is absolute, in practice it is regarded obligatory only in cases of a male adult of rank or importance; and even then it is considered superfluous when the deceased had met his fate for a fault clearly his own. In other cases, when vendetta is obviously demanded by the honour of the sub-clan, it is still evaded by the substitution of blood-money (lula). This was a regular institution in the making of peace after war, when a compensation was given to the other side for every one killed and wounded. But also when murder or homicide were committed, a lula would relieve the survivors from the duty of talion (lugwa).
And that brings us back to the problem of clap unity. All the facts quoted above show that the unity of the clan is neither a mere fairy tale, invented by Anthropology, nor yet the one and only real principle of savage law, the key to all its riddles and difficulties. The actual state of affairs, fully seen and thoroughly understood, is very complex, full of apparent as well as of real contradictions and of conflicts due to the play of the Ideal and its actualization, to the imperfect adjustment between the spontaneous human tendencies and rigid law. The unity of the clan is a legal fiction in that it demands — in all native doctrine, that is in all their professions, and statements, sayings, overt rules and patterns of conduct — an absolute subordination of all other interests and ties to the claims of clan solidarity, while, in fact, this solidarity is almost constantly sinned against and practically non-existent in the daily run of ordinary life. On the other hand, at certain times, in the ceremonial phases of native life above all, the clan unity dominates everything and in cases of overt clash and open challenge it will overrule personal considerations and failings which under ordinary conditions would certainly determine the individual’s conduct. There are, therefore, two sides to the question, and most of the important events of native life, as well as of their institutions, customs, and tendencies cannot be properly understood without the realization of both sides and of their interaction.
It is not difficult to see also, why Anthropology fixed upon one side of the question, why it presented the rigid but fictitious doctrine of native law as the whole truth. For this doctrine represents the intellectual, overt, fully conventionalized aspect of the native attitude, the one set into clear statements, into definite legal formulae. When the native is asked what he would do in such and such a case, he answers what he should do; he lays down the pattern of best possible conduct. When he acts as informant to a field-anthropologist, it costs him nothing to retail the Ideal of the law. His sentiments, his propensities, his bias, his self-indulgences as well as tolerance of others’ lapses, he reserves for his behaviour in real life. And even then, though he acts thus, he would be unwilling to admit often even to himself, that he ever acts below the standard of law. The other side, the natural, impulsive code of conduct, the evasions, the compromises and non-legal usages are revealed only to the field-worker, who observes native life directly, registers facts, lives at such close quarters with his ’material’ as to understand not only their language and their statements, but also the hidden motives of behaviour, and the hardly ever formulated spontaneous line of conduct. ’Hearsay Anthropology’ is constantly exposed to the danger of ignoring the seamy side of savage law. This side, it can be said without exaggeration, exists and is tolerated as long as it is not squarely faced, put into words, openly stated and thus challenged. This accounts perhaps for the old theory of the ’untrammelled savage’ whose customs are none and whose manners are beastly. For the authorities who gave us this version knew well the intricacies and irregularities of native behaviour which by no means conforms to strict law, while they ignored the structure of native legal doctrine. The modern field-worker constructs it without much trouble from his native informant’s statements, but he remains ignorant of the blurs made by human nature on this theoretical outline. Hence he has re-shaped the savage into a model of legality. Truth is a combination of both versions and our knowledge of it reveals the old as well as the new figment as futile simplifications of a very complicated state of things.
This, like everything else in human cultural reality is not a consistent logical scheme, but rather a seething mixture of conflicting principles. Among these the clash of matriliny and paternal interest is probably the most important. The discrepancy between the totemic clan solidarity on the one hand, and the bonds of family or dictates of self-interest comes next. The struggle of the hereditary principle of rank with the personal influences of prowess, economic success and magical craft is also of importance. Sorcery as a personal instrument of power deserves special mention, for the sorcerer is often a dreaded competitor of the chief or headman. If space permitted I could give examples of other conflicts of a more concrete, accidental nature; the historically ascertainable gradual spread of political power of the Tabalu sub-clan (of the Malasi clan), in which we can see the principle of rank override beyond its legitimate field the law of strictly local citizenship, based on mythological claims and matrilineal succession. Or else I might describe the secular contest between the same Tabalu and the Toliwaga sub-clan (of the Lukwasisiga clan), in which the former have on their side rank, prestige and established power and the latter a stronger military organization, war-like qualities and greater success in fighting.
The most important fact from our point of view in this struggle of social principles is that it forces us to re-cast completely the traditional conception of law and order in savage communities. We have to abandon now definitely the idea of an inert, solid ’crust’ or ’cake’ of custom rigidly pressing from outside upon the whole surface of tribal life. Law and order arise out of the very processes which they govern. But they are not rigid, nor due to any inertia or permanent mould. They obtain on the contrary as the result of a constant struggle not merely of human passions against the law, but of legal principles with one another. The struggle, however, is not a free fight: it is subject to definite conditions, can take place only within certain limits and only on the condition that it remains under the surface of publicity. Once an open challenge has been entered, the precedence of strict law over legalized usage or over an encroaching principle of law is established and the orthodox hierarchy of legal systems controls the issue.
For as we have seen the conflict takes place between strict law and legalized usage, and it is possible because the former has the strength of more definite tradition behind it, while the latter draws force from personal inclinations and actual power. There exist thus within the body of law not only different types such as quasi-civil and quasi-criminal, or the law of economic transactions, of political relations, etc., but there can be distinguished degrees of orthodoxy, stringency, and validity, placing the rules into a hierarchy from the main law of Mother-right, totemism, and rank down to the clandestine evasions and the traditional means of defying law and abetting crime.
Herewith our survey of law and legal institutions in the Trobriand Islands comes to an end. In its course we have reached a number of conclusions about the existence of positive and elastic and yet binding obligations, which correspond to the civil law in more developed cultures; about the influence of reciprocity, public enactment and the systematic incidence of such obligations, which supply their main binding forces; about the negative rulings of law, the tribal prohibitions and taboos, which we have found as elastic and adaptable as the positive rules although fulfilling a different function. We were also able to suggest a new classification of the rules of custom and tradition; a revised definition of law as a special class of customary rules and to indicate further sub-divisions within the body of law itself. In this, besides the main division between quasi-civil and quasi-criminal we found that a distinction must be made between the various grades of law which can be arranged into a hierarchy from the statutes of main legitimate law, through legally tolerated usages down to evasions and traditional methods of flouting the law. We also had to discriminate between a number of distinct systems which together form the body of tribal law such as Mother-right and Father-love, political organization and magical influence, systems which at times enter into conflict, arrive at compromises and re-adjustments. There is no need to go further into detail about all this, for our conclusions were both substantiated with evidence and discussed theoretically at length.
But it is worth while to realize once more that throughout our discussion we found the real problem not in bald enumeration of rules, but in the ways and means by which these are carried out. Most instructive we found the study of the life situations which call for a given rule, the manner in which this is handled by the people concerned, the reaction of the community at large, the consequences of fulfilment or neglect. All this, which could be called the cultural-context of a primitive system of rules is equally important, if not more so, than the mere recital of a fictitious native corpus iuris28 codified into the ethnographer’s note-book as the result of question and answer, in the hearsay method of field-work.
With this we are demanding a new line of anthropological field-work: the study by direct observation of the rules of custom as they function in actual life. Such study reveals that the commandments of law and custom are always organically connected and not isolated; that their very nature consists in the many tentacles which they throw out into the context of social life; that they only exist in the chain of social transactions in which they are but a link. I maintain that the staccato manner in which most accounts of tribal life are given is the result of imperfect information, and that it is in fact incompatible with the general character of human life and the exigencies of social organization. A native tribe bound by a code of disconnected inorganic customs would fall to pieces under our very eyes.
We can only plead for the speedy and complete disappearance from the records of field-work of the piecemeal items of information, of customs, beliefs, and rules of conduct floating in the air, or rather leading a flat existence on paper with the third-dimension, that of life, completely lacking. With this the theoretical arguments of Anthropology will be able to drop the lengthy litanies of threaded statement, which make us anthropologists feel silly, and the savage look ridiculous. I mean by this the long enumerations of bald statement such as, for example, „Among the Brobdignacians when a man meets his mother-in-law, the two abuse each other and each retires with a black eye”; „When a Brodiag encounters a Polar bear he rims away and sometimes the bear follows”; „in old Caledonia when a native accidentally finds a whiskey bottle by the road-side he empties it at one gulp, after which he proceeds immediately to look for another” — and so forth. (I am quoting from memory so the statements may be only approximate, though they sound plausible.)
It is easy, however, to poke fun at the litany-method, but it is the field-worker who is really responsible. There is hardly any record in which the majority of statements are given as they occur in actuality and not as they should or are said to occur. Many of the earlier accounts were written to startle, to amuse, to be facetious at the expense of the savage, till the tables were turned and it is more easy now to be facetious at the anthropologist’s expense. To the old recorders what mattered really was the queerness of the custom, not its reality. The modern anthropologist, working through an interpreter by the question and answer method can again collect only opinions, generalizations, and bald statements. He gives us no reality, for he has never seen it. The touch of ridicule which hangs about most writings of anthropology is due to the artificial flavour of a statement torn out of its life-context. The true problem is not to study how human life submits to rules — it simply does not; the real problem is how the rules become adapted to life.
As regards our theoretical gains the analysis of Trobriand law has given us a clear view of the forces of cohesion in a primitive society, based on solidarity within the group as well as on the appreciation of personal interest. The opposition of primitive ’group-sentiment’, ’joint personality’ and ’clan absorption’ to civilized individualism and pursuit of selfish ends appear to us altogether artificial and futile. No society, however primitive or civilized, can be based on a figment or on a pathological growth on human nature.
The results of this memoir point to one more moral. Although I have confined myself principally to descriptions and statements of fact, some of these led naturally to a more general theoretical analysis which yielded certain explanations of the facts discussed. Yet in all this not once was it necessary to resort to any hypotheses, to any evolutionary or historical reconstructions. The explanations here given consisted in an analysis of certain facts into simpler elements and of tracing the relations between these elements. Or else it was possible to correlate one aspect of culture with another and to show which is the function fulfilled by either within the scheme of culture. The relation between Mother-right and the paternal principle and their partial conflict accounts, as we have seen, for a series of compromise formations such as cross-cousin marriage, types of inheritance and economic transactions, the typical constellation of father, son, and maternal uncle, and certain features of the clan system.29 Several characteristics of their social life, the chains of reciprocal duties, the ceremonial enactment of obligations, the uniting of a number of disparate transactions into one relationship have been explained by the function which they fulfil in supplying the coercive forces of law. The relation between hereditary prestige, the power of sorcery, and the influence of personal achievement as we find them in the Trobriands could be accounted for by the cultural parts played by each principle respectively. While remaining on strictly empirical ground we were able to account for all these facts and features, show their conditions as well as the ends which they fulfil, and thus to explain them in a scientific manner. This type of explanation by no means excludes further investigation as to the evolutionary level of such customs or as to their historical antecedents. There is room for the antiquarian interest as well as the scientific, but the former should not claim an exclusive or even predominant sway over Anthropology. It is high time that the student of Man should also be able to say „hypotheses non fingo”.
Przypisy:
1. couvade — a practice in which the husband of a woman bearing a child lies in his bed and reenacts the birth. [przypis edytorski]
2. lacuna — a gap. [przypis edytorski]
3. Primilivt Society, Chap. on „Justice”, p. 387, English edition. [przypis autorski]
4. Die Symmetric von Handlungen aber nennen wir das Prinzip der Vergeltung. Dieses liegt tief verwurzelt im menschlicfaen Empfinden — als adaquate Reaktion — und ihm kam von jeher die grösste Bedeutung im sozialen Leben zu (Die Gemeinde der Bánaro, Stuttgart, 1921, p. 10). [przypis autorski]
5. phratry — subdivision of a tribe; marriages within it are usually prohibited. [przypis edytorski]
6. moiety — one of a portion into which something is divided, usually a half or near half. [przypis edytorski]
7. Compare also the apposite criticism of my expression „pure gift” and of all it implies by M. Marcel Mauss, in L’Année Sociologique. Nouvelle Série. vol. i, pp. 171 sqq. I had written the above paragraph before I saw M. Mauss’s strictures, which substantially agreed with my own. It is gratifying to a field-worker when his observations are sufficiently well presented to allow others to refute his conclusions out of his own material. It is even more pleasant for me to find that my maturer judgment has led me independently to the same results as those of my distinguished friend M. Mauss. [przypis autorski]
8. For further data referring to the social and legal status of the hereditary magician, see Chap. xvii on „Magic”, in Argonauts of the Western Pacific, as well as the descriptions of and sundry references to canoe magic, sailing magic, and haloma magic. Compare also the short account of garden magic in Primitive Economics („Economic Journ.”, 1921); of war magic, in „Man”, 1920 (No. 5 of article); and of fishing magic, in „Man”, 1918 (No. 53 of article). [przypis autorski]
9. Comp. the writer’s account of the Milamala, the feast of the annual return of the spirits, in Baloma; the spirits of the dead in the Trobriand Islands („Journ. of the R. Anthrop. Institute”, 1916). The food offerings in question are described on p. 378. [przypis autorski]
10. Comp. for more detail, the various aspects of chieftainship I have brought out in art. cit. Primitive Economics, op. cit. (Argonauts), and the articles on „War” and on „Spirits”, also referred to previously. [przypis autorski]
11. Here again I must refer to some of my other publications, where these matters have been treated in detail, though not from the present point of view. See the three articles published in „Psyche” of October, 1923 (The Psychology of Sex in Primitive Societies); April, 1924 (Psycho-Analysis and Anthropology); and January, 1925 (Complex and Myth in Mother-Right), in which many aspects of sexual psychology, of the fundamental ideas and customs of kinship and relationship, have been described. The two latter articles appear uniform with this work in my Sex and Repression in Savage Society (1926). [przypis autorski]
12. Steinmetz, Ethnologiscke Studien zur ersten Entwichelung der Strafe, 1894; Durkheim in L’Année Sociologique, i. pp. 353 sqq.; Mauss in Revue de l’Histoire des Religions, 1897. [przypis autorski]
13. Comp. the account of this institution in Argonauts of the Western Pacific (references in Index s. v. Gwara). Also descriptions in Prof. Seligman’s Melanesians, and in the present writer’s The Natives of Mailu („Trans. R. Soc. of S. Australia”, vol. 39), of the gola or gora among the Western Papuo-Melanesians. [przypis autorski]
14. Argonauts. See in Index s. v. Kayasa. [przypis autorski]
15. Thus Rivers speaks of a „group sentiment of the clan system with its accompanying communistic practices”, supposed to exist in Melanesia, and he adds that to such natives the „principle ’each man for himself’ is beyond the reach of understanding” (Social Organization, p. 170). Sidney Hartland imagines that in savagery „The same code in the same Divine Name, and with equal authority, may make regulations for the conduct of commercial transactions and of the most intimate conjugal relations, as well as for a complex and splendid ceremonial of divine worship” (Primitive Law, p. 214). Both statements are misleading. Comp. also the quotations in Part I, Sections I and X. [przypis autorski]
16. sub rosa — (Latin idiom) secretly. [przypis edytorski]
17. To give an illustration, reversing the rôle of savage and civilized, of ethnographer and informant: many of my Melanesian friends, taking at its face value the doctrine of ’brotherly love’ preached by Christian Missionaries and the taboo on warfare and killing preached and promulgated by Government officials, were unable to reconcile the stories about the Great War, reaching — through planters, traders, overseers, plantation hands — the remotest Melanesian or Papuan village. They were really puzzled at hearing that in one day white men were wiping out as many of their own kind as would make up several of the biggest Melanesian tribes. They forcibly concluded that the White Man was a tremendous liar, but they were not certain at which end the lie lay — whether in the moral pretence or in his bragging about war achievements. [przypis autorski]
18. For an ampler account of this subject, see the writer’s article on Complex and Myth in Mother-right, „Psyche”, vol. v. No. 3, Jan., 1925; reprinted in op. cit., Sex and Repression in Savage Society, uniform with this work. [przypis autorski]
19. mutatis mutandis (Latin) — changing what has to be changed. [przypis edytorski]
20. Compare the article on ’Baloma’ in the „Journal of the Royal Anlhrop. Inst.”, 1916, where I describe the beliefs in the two surviving principles in detail, without mentioning that the kousi is found exclusively in the case of a sorcerer. This I found out during my third expedition to New Guinea. [przypis autorski]
21. The sorcerer, who stands for conservatism, the old tribal order, the old beliefs and apportionment of power, naturally resents the innovators and the destroyers of his Weltanschauung. He is as a rule the natural enemy of the white man, who therefore hates him. [przypis autorski]
22. For an account and analysis of abuse and obscene expressions, cf. op. cit., Sex and Repression in Savage Society or the writer’s article in „Psyche”, v. 3, 1925. [przypis autorski]
23. Cf. The Father in Primitive Psychology (1926), originally published in „Psyche”, vol. iv, No. 2. [przypis autorski]
24. The natives are ignorant of the fact of physiological fatherhood, and, as I have shown in op. cit., The Father in Primitive Psychology, 1926, have a supernatural theory of the causes of birth. There is no physical continuity between the male and the children of his wife. Yet the father loves his child even from birth — to the extent at least to which the normal European father does. Since this cannot be due to any ideas that they are his offspring, this must be due to the outcome of some innate tendency in the human species, on the part of the male to feel attached to the children born by a woman with whom he is mated, has been living permanently and has kept watch over during her pregnancy. This appears to me the only plausible explanation of the ’voice of blood’ which speaks in societies ignorant of fatherhood as well as those that are emphatically patriarchal, which makes a father love his physiologically own child as well as one born through adultery — as long as he does not know of it. The tendency is of the greatest use to the species. [przypis autorski]
25. Cf. the writer’s op. cit. Argonauts of the Western Pacific. [przypis autorski]
26. in flagranti — (Latin) while commiting the act. [przypis edytorski]
27. talion — (Latin) punishment compensating a crime by being its equivalent. [przypis edytorski]
28. corpus iuris — (Latin) the body of laws. [przypis edytorski]
29. The relation between Mother-right and Father-love is more fully discussed in op. cit., Sex and Repression in Savage Society. [przypis autorski]