[18] Comp. below, p. 206, the second paragraph of [footnote 1].
[19] Defining that term only broadly at the outset.
[20] In the treatises on primitive law and on family law such general concepts as "legal" or "law" are never explicitly defined. Perhaps such a definition is superfluous for a specialist, but I think that especially in the ethnology of primitive peoples precise concepts and explicit definitions are necessary. I may, however, mention the following places where there are some attempts at definition—
Post, l.c., i. sec. 3, pp. 8-10. The author gives a few remarks about the beginnings of law. He maintains it existed as Rechtsgefühl, feeling of legality, and was evolved through a system of juridical verdicts, given according to this sentiment. There were no legal norms at the beginning.—This passage is unsatisfactory, both because it does not give any strict definition and because it does not seem to be in agreement with the facts.
Kohler, l.c., p. 323. No strict definition given. Besides the author says that there is no organization (staatliche Organisation), no tribunal, and no executive among the Australian aborigines. This assertion may be questioned; compare below.
Durkheim, D.T.S., pp. 28 sqq. and 108 sqq. There are some interesting remarks bearing upon our subject; but there are no sufficiently clear definitions, especially none to suit the laws of quite primitive peoples.
Lord Avebury, l.c., chap. xi. pp. 464 sqq. No definition of what "law," "legal," should mean in very low societies, attempted. Law and custom are not discriminated. Some interesting remarks on punishment (pp. 495 sqq.) are not utilized in order to afford strict concepts.
[21] Trans. R.S.V., pp. 103 sqq.; J.A.I., xii, p. 35; J.A.I, xiii, p. 282. And especially Nat. Tr., chap. vi. pp. 295-354. The elucidation of the problem of authority and justice in Australia is one of Howitt's chief merits. In the passages quoted, there will be found ample material to exemplify all that is said in the text. I shall give, however, a few more detailed references on some special points. Howitt does not classify the facts according to the principle just enunciated. But all he says fits perfectly well into our scheme, and he puts stress on some essential points; viz. that there is a tribal as well as a supernatural punishment; that there is a central authority, and that it had means to enforce and execute its decrees. Curr (A.R., vol. i. pp. 53 sqq.) emphatically denies the existence of any kind of government; but his polemic is due to the misunderstanding of the word government as it should be applied to the Australian aboriginal society. For general discussion of this problem compare also G. C. Wheeler, pp. 46-52. Interesting details, corroborating Howitt's opinion may be found also in the following places: Spencer and Gillen, Nat. Tr., pp. 12 sqq., p. 324, p. 477, pp. 491 sqq. Nor. Tr., pp. 26 sqq. R. Dawson, pp. 64-65. Hodgson, p. 204. J. D. Lang, p. 331. G. S. Lang, pp. 9-10. Grey, ii. p. 222. Eyre, ii. pp. 214, 318, 385. Woods, p. 8. L. Schultze, p. 225. J. B. Gribble, p. 114. J. Mathew, p. 129. Compare also the following extracts, where I shortly indicate what is to be found—
Ch. Wilkes, ii. 204. Obedience to elders. Idem, i. 222. Regulated fights. Wilson, 144. Reverence towards old men. Bennett, pp. 177-178. Chiefs chosen for personal qualities. Turnbull, p. 91. Ordeals as punishment for crime, p. 101. Respect for and authority of old men and magicians. Barrington, 81. Pacific settlement of differences. Henderson, pp. 107, 158. No chiefs: only "doctors" wield some authority; p. 160, Duel as redress of injuries. Macgillivray, i. 151. Power and authority of old and experienced men; p. 152, Important instances of justice. Idem, ii. p. 27. Authority wielded by some important and privileged men. G. W. Earl, p. 275. Alleged powerful chiefs (unreliable). Campbell, 171. Instances of important and influential men. B. Field, 67. Description of two regulated fights. Krichauff, p. 77. Old men and doctors in council: they carry out the resolutions arrived at, or see that these are carried out; p. 78, Laws, which the warriors or old men uphold. Penalties: reprimand, exit, and ordeal. Sutton, p. 18. Hereditary "kingship." Wilhelmi, p. 183. No chiefs. Respect for old men and their magical powers. D. Mathews, p. 49. Council of old men. S. Newland. Proc. R.G.S.S.A., iii. p. 40 sqq. Examples of important and powerful men. Mrs. Bates, p. 52. Regulation of offences by ordeals.
All these references bear indiscriminately on one or the other of the important features of government and of legal or other norms discussed in the text.