As mentioned above, many authors, who have contributed so much in other respects to our knowledge of Australian kinship organization, have not entered into details as to the family life, or actual relationship. Even Mr. Thomas, although he quite acknowledges the existence of individual relationship, confines himself to the remark that in Australia exists "the family in the European sense." But this expression is not adequate. We cannot possibly find in Australia any social unit that would exactly fit the forms of our individual family; for this is intimately connected with the structure of our society, and none of the social conditions it requires are found in Australia. We can only say a unit which is analogous to our individual family, and even then we would be more metaphorical than exact. Mr. Lang, on the other hand, is not exhaustive enough for our purpose—which is a description of the family unit that will define it fully for sociological use. Nevertheless as he writes in reply to Dr. Rivers he has accepted the latter's methodological standpoint, and he gives a series of apposite remarks and examples. But he concludes: "It is needless to give more examples; the savage Australian does discriminate between his actual and his tribal relations." This conclusion is quite correct, but it is not sufficient. The mere affirmation that the actual relationship exists and is recognized by the natives is not enough. This has been obvious to every careful, unprejudiced reader of the first-hand ethnographical material.
The aim of the present study is to define what this individual relationship is; to describe its different aspects and features; how it manifests itself in its different social functions and, as far as can be ascertained, how it must impress itself upon the native mind. And here lies the important methodological point on which some stress must be laid. It is not the actual relationship, or the individual family, or "family in the European sense" which we have to look for in Australia. It is the aboriginal Australian individual family, with all its peculiarities and characteristic features, which must be reconstructed from the evidence. It will be necessary to describe minutely all the relationships generally embraced by the term Family,[19] and to describe them in terms taken from the native social life. In other words we have to look for the connection between the facts of family life and the general structure of society and forms of native life; and to take into account all psychological data available, such as ideas on procreation and reincarnation.
Only by such a description can we reach a correct and scientific definition of a given institution in a given society. It is essential that the elements of this definition should be taken from the conditions of social life in the given society. As an example we may take the legal side of marriage. Amongst us marriage is a legal act enforced on the one hand by the authority of the law with all its complicated social working and the power of the State at its back; on the other hand by the authority of the Church, which exercises a profound moral pressure in relation to this institution. These or even analogous factors will be sought in the Australian tribes in vain. And yet marriage there is not deprived of its legal validity and of its social sanction. It is not an act of mere fancy, brutal force or accident, but the legal factors have there quite a specific character, and can be found and understood only in connection with the general tribal structure and government.
Besides all that has been said above against a general offhand affirmation, that the individual family exists in Australia, it may be added here that such an assertion is practically quite useless. No further conclusions or inferences can be drawn from such a vague statement. Only by knowing exactly and minutely all the features and characters of the said unit can the different questions attached to this problem be answered; only so can it be judged whether the individual family or certain features of it are survivals or innovations; or whether they are so deeply rooted and connected with the social life and the whole organization of the tribes, that neither of these suppositions is justifiable. Such special and concrete definitions of a given social phenomenon in a given ethnic area, as the one which it is intended to give here for the Australian individual family, can serve also as a basis to form by induction a general conception of the individual family; and only from a rich collection of such material from different peoples can any sociological laws be constructed. As said above, a general working definition of the word individual family may be accepted at the outset of our investigations. After a careful analysis of all particular relationships concerned; and further, of the economic unity of the family, division of labour within it, legal sanction, etc., content can be given to the rough definition laid down at the beginning, and scientific exactness can be given to our conception of the individual family in Australia.
It seems desirable in this place to make a digression in order to consider the problem of law and the legal side of social phenomena in the Australian aboriginal society, as we shall often have to use these concepts. A more detailed and exhaustive discussion of it would involve a treatise on primitive law, but as I am unable to indicate any place where the concepts in question are defined in a way satisfactory for the present purpose, I define them here briefly.[20]
All social organization implies a series of norms, which extend over the whole social life and regulate more or less strictly all the social relations. We find such norms and rules in the Australian aboriginal society, different kinds being enforced by different forms of social sanction. The validity of some is due to the evil results which are intrinsically connected with their violation. So e. g. we know that the breaking of certain food taboos has as an inevitable consequence premature grey hair, eruptions on the skin, or some other mishap. There are other rules, which are observed because any departure from them would bring general contempt and ridicule upon the culprit; a form of chastisement to which the natives are said to be extremely sensitive. There are still other types of social norms, sanctioned by a more direct collective action. In some cases the magicians of the tribe will use the dreaded method of "pointing the bone," thus bringing about the illness and death of the culprit; or a regulated fight ensues; or a man has to undergo a definite ordeal. Occasionally a group of people organize an armed party on their own account, but with the consent of the community; and so on.
Briefly it may be said that different types of social norms have different kinds of collective sanction and that we may suitably classify the norms and regulations according to the kind of sanction they enjoy. Here seems the proper place to introduce the concept of Law, Legal. We can agree to call such norms Legal, which enjoy an organized, more or less regulated and active social sanction. To make this definition plausible, we may remark that it makes the Australian legal institutions correspond to what we call law and legal in higher societies. Further it would be necessary, in order fully to justify our definition, to show: (1) that among the Australian blacks there exist such modes of regulated, organized and direct social sanction; (2) that they differ from other modes of sanction and that the collective mind is quite aware which norms enjoy just this form of sanction.
In answer to the first problem we may generally point to the existence of tribal government. That a kind of centralized authority exists in Australia and that it has well-determined functions has been shown at full length by Howitt.[21]
This government consists roughly speaking of headmen and a tribal council, composed in the first place of old men of the tribe, skilled magicians and experienced warriors. This camp council seems as a rule the more influential factor, and only in few cases are we informed of chiefs with extensive powers.[22] What is important for us is that one of the main functions—if not the chief one—of those central authorities is to decide in case of difficulties in tribal affairs and to give sentence, a function which is that both of a legislator and of a judge.[23] The old men are the only depositories of tribal lore; they also know the rules and norms and how to apply them. We are informed in many places that they discuss important matters and decide vital questions; and especially in cases where any law has been transgressed. They possess also executive power; they can organize an armed party; they arrange and control the regulated fights; and they have also in their hands the personal power of punishment by magic.[24] It may therefore be said in general that the rudimentary form of central authority, as found in Australia, possesses quite clearly traceable features of juridical functions and executive power; it forms a kind of tribunal, and it has its organs to carry out the sentence. It is hardly necessary to add, that those institutions exist only in a rudimentary form; but they appear to be quite unmistakable. Besides this central authority, which sometimes takes the juridical functions upon itself, there are other forms of organized action, carried out by groups of individuals, personally interested in the case. Here the legal character, i. e. the feature that distinguishes such action and the underlying norm from mere violence, fancy or custom—lies in the fact that such an action is regulated by strict rules and prescriptions. And it is in just such a mutual connection of a norm and social enforcement that the fundamental feature of legality may be seen. So e. g. in the Central Tribes a man who has by magic charmed away a woman can reckon upon the actual support of a definite group of his kindred. The legality of his act is based upon the existence of a certain norm and the existence of a form of active and regulated social support which enforces this norm. Without the norm the social action would be mere violence. Without the social enforcement the norm would be a moral or customary rule; so enforced, it may properly be called a law.[25] It is impossible, for want of space, to deal here more in detail with this question, which could correctly be answered only by collecting all the evidence available, and bringing the results into connection with the general features of Australian society, such as age grades and tribal secret societies. I only indicate here the point of view, and I shall in what follows refer to it and exemplify it by concrete instances.
The second problem, viz. whether the distinction between the customary and religious rules and legal norms may be considered as well defined in Australia, is still more difficult to answer. The small differentiation of that society hardly allows any very clear and definite sociological distinctions. But, broadly speaking, it seems that the distinction between (1) a trespass, whose punishment is supernaturally entailed by its very committal; (2) a trespass, punished by ridicule and public contempt; and (3) a crime, punished by the decision of the community, acting as a whole, or by its central organs, or certain groups of it—that this distinction between sin, improper conduct and crime (as we can call those three categories) is quite well marked in different features of aboriginal social life. What might fully elucidate this question, would be a collection of facts, classified according to these categories.[26]