Crime and Custom in Savage Society

by Bronisław Malinowski

All these institutions, kayasa, kaytapaku, and kaytubutabu, entail special binding ties. But even they are not exclusively legal. It would be a great mistake to deal with the subject of law by a simple enumeration of these few arrangements, each of which subserves a special end and fulfils a very partial function. The main province of law is in the social mechanism, which is to be found at the bottom of all the real obligations and covers a very vast portion of their custom, though by no means all of it, as we know.

XIII. Conclusion and Forecast

I have dealt here only with one province of Melanesia, and the conclusions arrived at have naturally a limited range. These conclusions, however, are based on facts observed by a new method and regarded from a new point of view, so that they might stimulate other observers to take up a similar line of study in other parts of the world.

Let us sum up the contrast between current views on the subject and the facts here presented. In modern anthropological jurisprudence, it is universally assumed that all custom is law to the savage and that he has no law but his custom. All custom again is obeyed automatically and rigidly by sheer inertia. There is no civil law or its equivalent in savage societies. The only relevant facts are the occasional breaches in defiance of custom — the crimes. There is no mechanism of enforcement of the primitive rules of conduct except the punishment of flagrant crime. Modern anthropology, therefore, ignores and sometimes even explicitly denies the existence of any social arrangements or of any psychological motives which make primitive man obey a certain class of custom for purely social reasons. According to Mr. Hartland and all the other authorities, religious sanctions, supernatural penalties, group responsibility and solidarity, taboo and magic are the main elements of jurisprudence in savagery.

All these contentions are, as I have already indicated, either directly mistaken or only partially true, or, at least, they can be said to place the reality of native life in a false perspective. Perhaps there is no further need to argue that no man, however ’savage’ or ’primitive’ will instinctively act against his instincts, or unwittingly obey a rule which he feels inclined cunningly to evade or wilfully to defy; or that he will not spontaneously act in a manner contrary to all his appetites and inclinations. The fundamental function of law is to curb certain natural propensities, to hem in and control human instincts and to impose a non-spontaneous, compulsory behaviour — in other words, to ensure a type of co-operation which is based on mutual concessions and sacrifices for a common end. A new force, different from the innate, spontaneous endowment, must be present to perform this task.

In order to make this negative criticism conclusive, we have given a positive statement of a concrete case to present the facts of primitive law as it really is, and have shown in what the compulsory nature of primitive legal rules consists.

The Melanesian of the region here treated has unquestionably the greatest respect for his tribal custom and tradition as such. Thus much may be conceded to the old views at the outset. All the rules of his tribe, trivial or important, pleasant or irksome, moral or utilitarian, are regarded by him with reverence and felt to be obligatory. But the force of custom, the glamour of tradition, if it stood alone, would not be enough to counteract the temptations of appetite or lust or the dictates of self-interest. The mere sanction of tradition — the conformism and conservatism of the ’savage’ — operates often and operates alone in enforcing manners, customary usage, private and public behaviour in all cases where some rules are necessary to establish the mechanism of common life and cooperation and to allow of orderly proceedings — but where there is no need to encroach on self-interest and inertia or to prod into unpleasant action or thwart innate propensities.

There are other rules, dictates and imperatives which require and possess their special type of sanction, besides the mere glamour of tradition. The natives in the part of Melanesia described have to conform, for example, to a very exacting type of religious ritual, especially at burial and in mourning. There are, again, imperatives of behaviour between relations. There exists finally the sanction of tribal punishment, due to a reaction in anger and indignation of the whole community. By this sanction human life, property, and, last though not least, personal honour are safeguarded in a Melanesian community, as well as such institutions as chieftainship, exogamy, rank and marriage, which play a paramount part in their tribal constitution.

Each class of rules just enumerated is distinguishable from the rest by its sanctions and by its relation to the social organization of the tribe and to its culture. They do not form this amorphous mass of tribal usage or ’cake of custom’ of which we have been hearing so much. The last category, the fundamental rules safeguarding life, property and personality form the class which might be described as ’criminal law’ — very often over-emphasized by anthropologists and falsely connected with the problem of ’government’ and ’central authority’ and invariably torn out of its proper context of other legal rules. For — and here we come at last to the most important point — there exists a class of binding rules which control most aspects of tribal life, which regulate personal relations between kinsmen, clansmen and tribesmen, settle economic relations, the exercise of power and of magic, the status of husband and wife and of their respective families. These are the rules of a Melanesian community which correspond to our civil law.

There is no religious sanction to these rules, no fear, superstitious or rational, enforces them, no tribal punishment visits their breach, nor even the stigma of public opinion or moral blame. The forces which make these rules binding we shall lay bare and find them not simple but clearly definable, not to be described by one word or one concept, but very real none the less. The binding forces of Melanesian civil law are to be found in the concatenation of the obligations, in the fact that they are arranged into chains of mutual services, a give and take extending over long periods of time and covering wide aspects of interest and activity. To this there is added the conspicuous and ceremonial manner in which most of the legal obligations have to be discharged. This binds people by an appeal to their vanity and self-regard, to their love of self-enhancement by display. Thus the binding force of these rules is due to the natural mental trend of self-interest, ambition and vanity, set into play by a special social mechanism into which the obligatory actions are framed.