These few remarks are merely made to settle the terminology. By definition a given norm or rule is Legal if it is enforced by a direct, organized, and definite social action. And by the word legal will be designated this side or aspect of a given social relation which is regulated by laws, as just defined.
Our considerations indicate also in what direction an analysis of the social conditions in Australia would be interesting from the point of view of primitive jurisprudence. In the first place, there is a great variety of modes in which the different legal norms are preserved, impressed upon the social mind, and taught to different members of the society. Here the connection of different norms with religion, myth, totemic cultus, organization of the secret society, etc., might be discussed. In the second place a careful investigation of the different forms of social sanction, based partly on belief, partly on collective ideas and feelings, partly on actual institutions and direct enforcement, might be carried out. In connection with it there might be a classification of the norms; and the domain of the purely legal norms, or rather the properly legal aspect of norms and different social phenomena could be exactly traced. In other words each norm should be studied in connection with the way in which it is "codified" (i. e. preserved for and imparted to social knowledge); and in connection with its sanction. In the case of a legal norm the tribunal and the executive organs should be indicated as far as possible. Undoubtedly we find in such a primitive society as the Australian many institutions still in a state of confusion, which on a higher level are quite well determined and differentiated. But the more confused the phenomena, the clearer our conceptions must be in order exactly to follow the different ways in which the elements are interwoven and combined. What is an isolated and defined institution in a higher society, may be merely a side or aspect of social phenomena in a lower one. But it is highly important to use definite concepts to denote such aspects or sides in undifferentiated societies, because it often widens our horizon and puts our ideas to a crucial test.
I wish to add that in the present case it is only the necessity for clearness and convenience that makes a definition necessary. The domain of primitive jurisprudence cannot be considered fully explored yet; the chief aim of a good definition is to state the proper problems and to show the groups of facts that must be inquired into in order to give right answers to the problems proposed.
II
Having thus justified the scope of the present book and indicated the general lines on which its task should be carried out, a few words must be devoted to the method of dealing with the evidence. We start our investigations with (1) the Australian first-hand information, and (2) a general idea of the object of our research, that is a general idea of the individual family. This implies that during the process of research these two sets of data must be checked against each other. On the one hand we must continually extract from the evidence all that corresponds to our general idea of the individual family; on the other hand this idea must be specialized and determined according to the evidence.
It is clear enough what, broadly speaking, is meant by the Individual Family. But what exactly will be the features of this institution in Australia, that must be extracted from the evidence. This evidence is, on the other hand, given in the majority of cases in a very crude state, without reference to any theoretical points of view. The facts are often given in a purely casual and colloquial way. It is part of the task to sift out each one of them, and to ask if it can have any bearing on the present subject. Many facts that seemed not to bear immediately on it, yet furnished some very useful inferences. In short, the first duty of such a work as the present is to ask from the evidence right questions in the right way.
But even if a certain point has been settled upon as essentially important to be inquired into, and information referring to it has been gathered, the task is not yet finished. The statements collected on this point will as a rule present more or less radical discrepancies. After we have heard twenty opinions on the same subject which by no means agree with each other, to which shall we adhere? A method of dealing with evidence must be fixed upon. In the first place the statements are of the most heterogeneous character and value. They must be submitted to some criticism before use can be made of them.
After the degree of their reliability has been settled, and after, by a criticism of each statement, some of the contradictions have been removed, it must be considered how far the differences between the statements may be regarded as due to irreducible, local variations of the given institution; in other words, the problem must be discussed from the geographical standpoint.
Finally a certain system of weighing the evidence must be chosen, so as to draw from it the most correct conclusions, and never to prove too much or too little. So there are three different processes: criticism, localization of differences, and drawing of conclusions; all of which must be done according to a careful and conscientious method.
A few remarks about the latter must be given here without any attempt at completeness. That preliminary criticism is necessary seems hardly to need justification; to look at the irreducible inconsistencies and contradictions of a series of statements concerning any given point is enough. But such criticism must not be arbitrary; it must conform to strict rules.[27]