[964] We obviously cannot agree with Prof. Durkheim when he says further (loc. cit., p. 331), speaking of the Australian family: "Ce sont des associations de fait, non de droit. Elles dépendent du gré des particuliers, se forment comme elles veulent, sans être tenues de s'astreindre à aucune norme préalable." The Australian family is not a casual but a legal association, for it does not depend upon the whim of individuals; neither is it formed when and how they choose. There are norms governing its formation, duties and obligations while it lasts, and even afterwards when it has been dissolved by a natural cause, such as the death of the husband. All these norms, duties and obligations are legal (compare the definition of legal, [p. 11]), for non-compliance with them leads to the interference of society; and they directly show that society approves of this institution. The reasoning of Prof. Durkheim—who enumerates four domestic rights and obligations (vendette, law of inheritance, name and cult), and says that those four functions are attached to the clan—is open to very serious objections. In the first place it is dubious whether those four duties constitute the main body of primitive domestic law. The economic functions, the duties and rules of cohabitation, the various duties towards children, the mourning duties of religious character—all these legal functions, which are domestic rights and obligations even in our society, were shown to exist in Australia. They belong to the family and not to the clan. On the other hand, when revenge is to be taken on members of another local group, then it is the local group offended which carries it out. The cases of intergroup justice are very few, for evil magic is always looked for at a distance, and we have hardly any information about justice within the local group. (For all particulars compare Wheeler, chap. viii. pp. 116 sqq.) It is not the clan, but the local group about which we know most in this respect. Inheritance, owing to the unimportance of private property (compare Wheeler, p. 36) plays a very subordinate rôle. From the six instances collected by Wheeler (pp. 37, 38), three point to inheritance according to class, three to inheritance according to family. Land was not a clan property, as we saw. There remains of Prof. Durkheim's legal customs the name and the cult. Cult may be obviously as well a public as a domestic institution; the name is not enough to show that the clan was the only legal form of family.

[965] A.S., i. p. 330.

[966] The writer hopes to return to this subject on another occasion. The material for the description of social functions of the exogamous class and totemic clan is comparatively scanty, although so much has been written on this subject.

Corrections:

pageoriginal textcorrection
[38]ormform
[38]footnote missing in original[58]
[45]pérepère
[156, n. 458]Exeg.Exog.
[197, n. 564]SociologieSoziologie
[202]judicaljuridical
[208, n. 585] 2xAntr.Anthr.
[210]UbrigensÜbrigens
[214]AbheringaAlcheringa
[221]ifelife
[233, n. 651]individuaindividual
[252, n. 748]SocialwissenschaftSozialwissenschaft
[268, n. 823]Socialw.Sozialw.
[309]corrobatedcorroborated
[314]ZeitschiftZeitschrift
[315] 2xSocialwissensch.Sozialwissensch.
[321]relalationsrelations
[322]Fehr.Frhr.