The incorrectness of taking only these two alternatives is shown by the three following considerations: (1) Such a view overlooks the facts discussed below, which show that there is actual kinship based on ideas neither physiological nor legal. (2) This way of interpreting facts operates with very indeterminate concepts, for we nowhere find any explanation of how to take the general term legal in connection with a given aboriginal society, and still less are we told how such legal concepts as potestas, paternal authority, etc., are to be applied to a given aboriginal society. (3) If a definition of law or legal be given, it would plainly be seen that it is quite erroneous to consider any of these concepts as defining parental kinship. This is quite clear if we use the definition of legal given above, [p. 11]. But even allowing a broad margin for the variations which may result from a varying definition of legal, it may be safely stated that in whatever way we might try to define this word, our definition must always involve factors of social pressure, stress and authority. In other words, the relation between two individuals may be considered legal only when we imply that it is wholly and exclusively determined by the outward regulating control of the society and by a potential direct action of it. And in the case we are speaking of—that is, the relation between parent and child in low societies—there can be hardly any question of this. As will appear in the Australian case, this relation is left quite to itself, and it is regulated by the spontaneous emotional attitude of the father towards his child. No factor of any outer pressure or constraint enters into it, at least we are not informed of any such by the ethnographical evidence extant. The collection and analysis of the statements on this point given below[540] will show that there cannot be any question of potestas, authority, proprietorship, or anything of the kind. Neither social pressure nor economic interest bind the parents to their children, nor does any motive of this kind enter into this relation.
As this subject is very important, some examples of the mode of reasoning just now criticized are set out here. These passages are quoted from works of very distinguished writers to show that the mistakes result from serious defects in sociological knowledge, and not from any accidental causes. And they are taken from passages which either refer exclusively to the Australian aboriginal society, or are exemplified by Australian facts.
Mr. Thomas, at the end of a passage in which he discusses the relation between the concepts of kinship and consanguinity says that in Australia "some relation will almost certainly be found to exist between the father and child; but it by no means follows that it arises from any idea of consanguinity." So far we perfectly agree with the reasoning of the author. But when Mr. Thomas adds, "In other communities potestas[541] and not consanguinity[541] is held to determine the relations of the husband of a woman to her offspring; and it is a matter for careful inquiry how far the same holds good in Australia, when the fact of fatherhood is in some cases asserted to be unrecognized by the natives,"[542] we see that he falls into the error of acknowledging only two possibilities: potestas or consanguinity. It is true that he speaks of consanguinity as being modified by native ideas, and that thus a social element is introduced into the physiological concept of consanguinity. But we are still left to guess how this social element is to be understood. And as pointed out above, the relation between father and child in the tribes in question cannot be considered as based upon consanguinity or community of blood, whatever meaning we give to these words. Erroneous in any case is the opposition of kinship and potestas, as if these two concepts were of the same order, and could be considered as two equivalent categories excluding each other. Whereas, as we saw, these two concepts are of quite different order and cannot be treated as excluding or replacing each other. Kinship is a very complicated social fact, very complex in its sociological and psychological aspects. Potestas is a legal category, expressing a set of attributes and rights of the father over his children. Potestas (or any analogous legal factor) may be a constituent element of kinship in certain societies. It cannot possibly replace kinship entirely.
A similar unsatisfactory reasoning, it appears to me, is to be found contained in a passage of the small but clearly and deeply thought out work of the eminent sociologist, the late Prof. Dargun. He stipulates as the most important postulate of studies in family organization the discrimination between authority and consanguinity: "Strenges Auseinanderhalten der Gewaltverhältnisse von den Verwandtschaftsverhältnissen."[543] And he defines Verwandtschaft as a purely physiological fact: "die letztere, (Verwandtschaft) ist durch das natürliche Blutband gegeben."[544] This is obviously an incorrect definition for sociological use.[545] Equally unsatisfactory is the definition given of the Gewalt (potestas): Gewalt vom natürlichen Blutband unabhängig kann "auf sehr verschiedene historische Wurzeln zurückführen."[546] This definition is both negative and ambiguous, excluding elements of consanguinity from potestas and assigning to the latter "various historic roots." We might, therefore, expect to find everything in this idea, but on the other hand such a definition lacks precision and does not give either the direction in which to look for the determining factors, or any criterion for our recognition of the existence of personal kinship ties. Now our definition of kinship responds to both these requirements when applied to the Australian facts. Moreover we find in these phrases of Dargun the alternative condemned above between authority and consanguinity, the latter used here in the crude physiological sense. It may be noted that in some passages of the book in question there are hints pointing to the fact that the author felt the necessity of a psychological definition of paternal kinship. So when he says, speaking of the Australians: "Vollkommenste Vaterherrschaft, ja selbst ausgesprochene Vaterliebe—gehen mit ebenso unbedingter Verwandtschaft—und Stammeszugehörigkeit in mütterlicher Linie, Hand in Hand,"[547] we see that here the author speaks of paternal love and states that this is what determines the relation of father and child in Australia. When he speaks afterwards of the father as: "Beschützer und Fürsorger"[548] of his children, we see that he mentions purely personal factors of the relation of father to child, such as we lay stress upon in speaking of community of life and of interests. But still the author seems to be entangled in his alternative between consanguinity and potestas. So we read: "Wo zwischen dem Vater und seinen Kindern ein wirkliches Verwandtschaftsverhältniss bestehet, dort muss auf die faktische Zeugung durch den Hausvater entscheidendes Gewicht gelegt werden, und umgekehrt überall wo Gleichgültigkeit gegen dieses Zeugungsverhältniss an den Tag tritt, ist das Gewaltverhältniss des Vaters, noch nicht zur Blutsverwandtschaft herangereift."[549] In this phrase there is a complete oversight of the various actual ways in which an intimate relation between father and child may be established, and which have nothing to do either with consanguinity or with patria potestas.
In the new work of Prof. Frazer there are also some pages touching on this point. Although he distinguishes well between the physiological and social consanguinity,[550] still in another place he says, speaking of the Central Tribes: "Denying as they do explicitly that the child is begotten by the father, they can only regard him as the consort, and in a sense as the owner of the mother, and, therefore, as the owner of her progeny, just as a man who owns a cow owns also the calf she brings forth. In short, it seems probable that a man's children were viewed as his property long before they were recognized as his offspring." It is impossible to agree with this opinion. The word "property" can in no strict sense be applied to the relation between father and child in Australia. Besides the author does not even clearly indicate in what sense he uses the word; and this word appears here only as a metaphor. Moreover, it is obvious that this opinion implies opposition between consanguinity and the legal category of "proprietorship," and contrasts the words "property" and "offspring."
In fact, as we hinted above, and as we shall have opportunity of discussing below[551] in connection with the evidence, there is little ground for speaking of authority, patria potestas, "ownership" or any similar attributes of the father as regards his children in Australia. It must not be forgotten that these words are nearly meaningless as long as they have not a legal sense. According to the definition of legal we should say that two people stand to each other in a purely legal relation when certain norms are laid down and actively sanctioned by society, which requires a definite mutual behaviour and attitude on the part of each. It was pointed out above that in Australia we have data allowing us to speak of the legal aspect of social institutions and relations;[552] it appears improbable, though, that there could be found any purely legal relation. At any rate, nothing of that sort determines or forms the substance of the relation between father and child in Australia. If a father should kill or abandon his child, he would, for all we know, be left quite undisturbed. Nobody compels him to provide for its subsistence, to protect it and care for it.[553] There are spontaneous elements that bind him to it. And these spontaneous elements (to discover them will be our task) determine his relation to his child. Undoubtedly this kinship relation presents some legal features, such as, for instance, his right to dispose of his daughter in marriage (a right which in some tribes is reported to belong to the mother or mother's brother). But we know very little about it.[554] At any rate, there are only a few occasions on which the relation in question involves any possibility of social intervention.[555]
Nobody ever doubts, as far as I can see, the fact that all personal ties between two individuals consist not only of ideas, but also of feelings, and that they are influenced no less by the feelings the two individuals mutually inspire than by the ideas they form of each other. To ascertain, e. g., if there be friendship between two people, one seeks to know their feelings towards each other, as well as what they think about each other. The relation between a parent and a child is in our society chiefly determined by their mutual feelings. And in a case where these feelings are absent, this relationship—in spite of all legal, moral, and other factors which tend to maintain its form—is deeply affected. It may be taken for granted that the sentimental side most essentially determines in a given society any kind of personal relationship. And in the same society the character of a given personal relation—be it parental kinship or anything else—varies with the intensity of the feeling and is essentially defined by the latter. It may be accepted also, that in different societies the types of feelings corresponding to given personal relations may vary according to the society, and may define in each one this given relation in its most essential character. In other words, the concept of collective feelings can be applied as well as the concept of collective ideas.[556] By this is to be understood certain types of feeling, which being dependent on corresponding collective ideas possess the same essential character as the latter: they exist in a certain society, and are transmitted from generation to generation; they impose themselves on the individual mind, and possess the character of necessity; they are deeply connected with certain social institutions; in fact they stand to them in the relation of functional dependence (in the mathematical sense). So, for instance, it is clear that in the hypothetical primitive promiscuous society, in which ex hypothesi there would be no individual relationship, the feelings of affection for the individual offspring could not exist. We could only speak of the "collective feeling" of group affection. So it seems to me that the relation of parents to children cannot be treated with any approach to completeness without seriously taking into account its emotional character.
But even if the foremost importance of emotional elements and the possibility of treating them as collective feelings were granted, there is another objection to be met. Granted that these elements are actually quite essential in determining family relations, it might be objected that they are too shapeless and indeterminate in themselves to be of any practical use in scientific research, especially if our theories have to be based upon ethnographic observations in which the more tangible and the more unambiguous the facts chosen, the less the risk of being misled. Now, are not feelings of the most indeterminate character, the most misleading, and the most difficult to ascertain? In fact, the theory of feelings and emotions seems to be the least developed in individual as well as in social psychology. Especially it might be suggested that to pursue the investigation on double lines is useless; feelings always find adequate expression in ideas, in fact crystallize in them.[557] Without trying to give a general answer to these objections, they may be met as regards the special case under discussion. In Australia, as a matter of fact, they do not hold good. For our knowledge of the sentimental side of parental kinship is much better and much more determinate than our knowledge of any other aspect of this relation.
It may be here indicated why our knowledge on this point may be considered as a well-founded one. As stated below ([pp. 249], [250]) the agreement between the statements as to parental feelings is quite an exceptional one. Comparing it with the usual discrepancy between the reports of different observers on many other points, which would appear much less liable to any subjectivity, this complete agreement and the relative exactness of our information is highly remarkable.[558] It should be noted that on this point there is no extrinsic reason, or secondary motive, that would make us suspect an artificial cause of agreement. The point in question forms no part of any theory; it affects no moral or racial susceptibilities. And there was no special reason why so many observers should pay attention to it, and why they all should state the same thing: viz. extreme love and fondness towards the children on the part of the parents. This agreement shows that the facts which the ethnographers had under observation were so expressive of the underlying psychology, and they struck the writers so strongly that they simply felt compelled to notice them. And observing closely the facts through which those feelings of paternal affection found their expression, it becomes evident that these feelings are not so indeterminate as might a priori be supposed; that, on the contrary, they find quite an unequivocal expression in a series of facts. Let us look more closely at these facts.
In the first place consider the facts of daily life[559]—the behaviour of parents towards children in all the cases where the latter want help or merit punishment. We read that on all such occasions both parents exhibit great kindness and extreme leniency. The children are carefully looked after by the father as well as by the mother; and they are very seldom punished. In one place it is even stated that the father is more lenient than the mother. Now is it not in agreement with all our every-day experiences that in such facts and features of daily life prominent and characteristic feelings find their adequate expression? And is the accordance of opinion among all our Australian informants on this point not a proof that they were able to judge with great certainty from these facts concerning the underlying feelings?—that these outer signs were unmistakable expressions of the inner facts? Undoubtedly our information is too little detailed, and particulars referring to treatment of children and other features of the aboriginal daily life in this connection would be of the highest value. But considering that the attention of the observers was never specially drawn to these questions by any theoretical writer, and comparing our information on this point with other parts of our evidence, it must be acknowledged that it is exceptionally good. And this reliability is doubtless in the first place due to the fact that the subject of observation was clear, unambiguous and well determined.