The rules of law stand out from the rest in that they are felt and regarded as the obligations of one person and the rightful claims of another. They are sanctioned not by a mere psychological motive, but by a definite social machinery of binding force, based, as we know, upon mutual dependence, and realized in the equivalent arrangement of reciprocal services, as well as in the combination of such claims into strands of multiple relationship. The ceremonial manner in which most transactions are carried out, which entails public control and criticism, adds still more to their binding force.
We may therefore finally dismiss the view that ’group-sentiment’ or ’collective responsibility’ is the only or even the main force which ensures adhesion to custom and which makes it binding or legal. Esprit de corps, solidarity, pride in one’s community and clan exist undoubtedly among the Melanesians — no social order could be maintained without them in any culture high or low. I only want to enter a caution against such exaggerated views as those of Rivers, Sidney Hartland, Durkheim, and others, which would make this unselfish, impersonal, unlimited group-loyalty the corner-stone of all social order in primitive cultures. The savage is neither an extreme ’collectivist’ nor an intransigent ’individualist’ — he is, like man in general, a mixture of both.
It results also from the account here given that primitive law does not consist exclusively or even chiefly of negative injunctions, nor is all savage law criminal law. And yet it is generally held that with the description of crime and punishment the subject of jurisprudence is exhausted as far as a savage community is concerned. As a matter of fact the dogma of automatic obedience, i. e. the absolute rigidity of the rules of custom implies an over-emphasis of criminal law in primitive communities and a corresponding denial of the possibility of civil law. Absolutely rigid rules cannot be stretched or adapted to life, they need not be enforced — but they can be broken. So much even the believers in a primitive super-legality must admit. Hence crime is the only legal problem to be studied in primitive communities, there is no civil law among savages, nor any civil jurisprudence for anthropology to work out. This view has dominated comparative studies of law from Sir Henry Maine to the most recent authorities, such as Prof. Hobhouse, Dr. Lowie, and Mr. Sidney Hartland. Thus we read in Mr. Hartland’s book that in primitive societies „the core of legislation is a series of taboos”, and that ”almost all early codes consist of prohibitions” (Primitive Law, p. 214). And again, „the general belief in the certainty of supernatural punishment and the alienation of the sympathy of one’s fellows generate an atmosphere of terror which is quite sufficient to prevent a breach of tribal customs [...] (p. 8 — the italics are mine). There is no such „atmosphere of terror” unless perhaps in the case of a few very exceptional and sacred rules of ritual and religion, and on the other hand the breach of tribal customs is prevented by a special machinery, the study of which is the real field of primitive jurisprudence.
In all this again Mr. Hartland is not alone. Steinmetz in his learned and competent analysis of primitive punishment insists on the criminal character of early jurisprudence, on the mechanical, rigid, almost undirected and unintentional nature of the penalties inflicted and on their religious basis. His views are fully endorsed by the great French sociologists Durkheim and Mauss, who add besides one more clause: that responsibility, revenge, in fact all legal reactions are founded in the psychology of the group and not of the individual.12 Even such acute and well-informed sociologists as Prof. Hobhouse and Dr. Lowie, the latter acquainted at first hand with savages, seem to follow the trend of the general bias in their otherwise excellent chapters on justice in primitive societies.
In our own province we have so far met with positive commandments only, the breach of which is penalized but not punished, and the machinery of which can by no procrustean methods be stretched beyond the line which separates civil from criminal law. If we have to provide the rules described in these articles with some modern, hence necessarily inappropriate label — they must be called the body of ’civil law’ of the Trobriand Islanders.
’Civil law’, the positive law governing all the phases of tribal life, consists then of a body of binding obligations, regarded as a right by one party and acknowledged as a duty by the other, kept in force by a specific mechanism of reciprocity and publicity inherent in the structure of their society. These rules of civil law are elastic and possess a certain latitude. They offer not only penalties for failure, but also premiums for an overdose of fulfilment. Their stringency is ensured through the rational appreciation of cause and effect by the natives, combined with a number of social and personal sentiments such as ambition, vanity, pride, desire of self-enhancement by display, and also attachment, friendship, devotion and loyalty to the kin.
It scarcely needs to be added that ’law’ and ’legal phenomena’, as we have discovered, described and defined them in a part of Melanesia, do not consist in any independent institutions. Law represents rather an aspect of their tribal life, one side of their structure, than any independent, self-contained social arrangements. Law dwells not in a special system of decrees, which foresee and define possible forms of non-fulfilment and provide appropriate barriers and remedies. Law is the specific result of the configuration of obligations, which makes it impossible for the native to shirk his responsibility without suffering for it in the future.
XII. Specific Legal Arrangements
The rare quarrels which occur at times take the form of an exchange of public expostulation (yakala) in which the two parties assisted by friends and relatives meet, harangue one another, hurl and hurl back recriminations. Such litigation allows people to give vent to their feelings and shows the trend of public opinion, and thus it may be of assistance in settling disputes. Sometimes it seems, however, only to harden the litigants. In no case is there any definite sentence pronounced by a third party, and agreement is but seldom reached then and there. The yakala therefore is a special legal arrangement, but of small importance and not really touching the heart of legal constraint.
Some other specific legal mechanisms may also be mentioned here. One of them is the kaytapaku, the magical protection of property by means of conditional curses. When a man owns coco or areca palms in distant spots, where it is impossible to keep watch over them, he attaches a palm leaf to the trunk of the tree, an indication that a formula has been uttered, which automatically would bring down ailment on the thief. Another institution which has a legal side is the kaytu-butabu, a form of magic performed over all the coco-nut trees of a community to bring about their fertility, as a rule in view of an approaching feast. Such magic entails a strict prohibition to gather the nuts or to partake of coco-nut, even when imported. A similar institution is the gwara.13 A pole is planted on the reef, and this places a taboo on any export of certain valuable objects, exchanged ceremonially in the kula, while their importation on the contrary is encouraged. This is a sort of moratorium, stopping all payments, without any interference with the receipts, which also aims at an accumulation of valuable objects before a big ceremonial distribution. Another important legal feature is a sort of ceremonial contract, called kayasa. 14 Here the leader of an expedition, the master of a feast, or the entrepreneur in an industrial venture gives a big ceremonial distribution. Those who participate in it and benefit by the bounty are under an obligation to assist the leader throughout the enterprise.