With a wider and more elastic ’minimum definition’ of law, there is no doubt that new legal phenomena of the same type as those found in N. W. Melanesia will be discovered. There is no doubt that custom is not based only on a universal, undifferentiated, ubiquitous force, this mental inertia, though this unquestionably exists, and adds its quota to other constraint. There must be in all societies a class of rules too practical to be backed up by religious sanctions, too burdensome to be left to mere goodwill, too personally vital to individuals to be enforced by any abstract agency. This is the domain of legal rules, and I venture to foretell that reciprocity, systematic incidence, publicity and ambition will be found to be the main factors in the binding machinery of primitive law.
Part II. Primitive Crime and Its Punishment
I. The Law in Breach and the restoration of Order
It lies in the nature of scientific interest, which is but refined curiosity, that it turns more readily to the extraordinary and sensational than to the normal and matter-of-course. At first, in a new line of research or in a young branch of study, it is the exception, the apparent breach of the natural law, which attracts attention and gradually leads to the discovery of new universal regularities. For — and here lies the paradox of scientific passion — systematic study takes up the miraculous only to transform it into the natural. Science in the long run builds up a Universe well-regulated, founded on generally valid laws, driven by definite all-pervading forces, ordered according to a few fundamental principles.
Not that wonder, the romance of the marvellous and mysterious, should be banished by science from reality. The philosophic mind is ever kept on its course by the desire for new worlds and new experiences, and metaphysics lures us on by the promise of a vision beyond the rim of the furthest horizon. But the character of curiosity, the appreciation of what really is marvellous has been changed in the meantime by the discipline of science. The contemplation of the great lines of the world, the mystery of immediate data and ultimate ends, the meaningless impetus of ’creative evolution’ make reality sufficiently tragic, mysterious, and questionable to the naturalist or student of culture, if he chooses to reflect upon the sum total of his knowledge and contemplate its limits. But to the mature scientific mind there can be no more thrills from the unexpected accident, no isolated sensation of a new, unrelated landscape in the exploration of reality. Every new discovery is but a step further on the same road, every new principle merely extends or shifts our old horizon.
Anthropology, still a young science, is now on the way to free itself from the control of pre-scientific interest, though certain recent attempts at offering extremely simple and, at the same time, sensational solutions of all the riddles of Culture are still dominated by crude curiosity. In the study of primitive law we can perceive this sound tendency in the gradual but definite recognition that savagery is not ruled by moods, passions, and accidents, but by tradition and order. Even then there remains something of the old ’shocker’ interest in the over-emphasis of criminal justice, in the attention devoted to the breaches of the law and their punishment. Law in modern Anthropology is still almost exclusively studied in its singular and sensational manipulations, in cases of blood-curdling crime, followed by tribal vendetta, in accounts of criminal sorcery with retaliation, of incest, adultery, breach of taboo or murder. In all this, besides the dramatic piquancy of the incidents, the anthropologist can, or thinks he can, trace certain unexpected, exotic, astonishing features of primitive law: a transcending solidarity of the kindred group, excluding all sense of self-interest; a legal and economic Communism; a submission to a rigid, undifferentiated tribal law.15
As a reaction against the method and the principles just stated, I have tried to approach the facts of primitive law in the Trobriands from the other end. I have started with the description of the ordinary, not the singular; of the law obeyed and not the law broken; of the permanent currents and tides in their social life and not its adventitious storms. From the account given, I have been able to conclude that contrary to most established views civil law — or its savage equivalent — is extremely well developed, and that it rules all aspects of social organization. We also found that it is clearly distinguishable, and distinguished by the natives, from the other types of norm, whether morals or manners, rules of art or commands of religion. The rules of their law, far from being rigid, absolute or issued in the Divine Name, are maintained by social forces, understood as rational and necessary, elastic and capable of adjustment. Far also from being exclusively a group affair, his rights and his duties are in the main the concern of the individual, who knows perfectly well how to look after his interests and realizes that he has to redeem his obligations. We found indeed that the native’s attitude towards duty and privilege is very much the same as in a civilized community — to the extent in fact that he not only stretches but also at times breaks the law. And this subject, not yet discussed, will claim our attention in these chapters. It would be a very one-sided picture indeed of the law in the Trobriands, if the rules were shown only in good working order, if the system were only described in equilibrium! That law functions only very imperfectly, that there are many hitches and breakdowns, I have now and again indicated, but a full description of the criminal and dramatic issues is necessary, though, as I have said, it should not be unduly emphasized.
There is still one reason why we must have a close look at native life in disorder. We found that in the Trobriands, social relations are governed by a number of legal principles. The most important of these is Mother-right, which rules that a child is bodily related and morally beholden by kinship to its mother and to her only. This principle governs succession to rank, power and dignities, economic inheritance, the rights to soil and to local citizenship and membership in the totemic clan. The status between brother and sister, the relations between the sexes and most of their private and public social intercourse is defined by rules forming part of matriarchal law. The economic duties of a man towards his married sister and her household constitute a strange and important feature of this law. The whole system is based on mythology, on the native theory of procreation, on certain of their magico-religious beliefs and it pervades all the institutions and customs of the tribe.
But, side by side with the system of Mother-right, in its shadow so to speak, there exist certain other, minor systems of legal rules. The law of marriage, defining the status of husband and wife, with its patrilocal arrangements, with its limited but clear bestowal of authority on the man and of guardianship over his wife and children in certain specified matters, is based on legal principles independent of Mother-right, though on several points intertwined with it and adjusted to it. The constitution of a village community, the position of the headman in his village and of the chief in his district, the privileges and duties of the public magician — all these are independent legal systems.
Now since we know that primitive law is not perfect, the problem emerges: how does this composite body of systems behave under the strain of circumstances? Is each system well harmonized within its own limits? Does such a system, moreover, keep within its limits or has it a tendency to encroach upon alien ground? Do the systems then come into conflict, and what is the character of such conflict? Here once more we have to appeal to the criminal, disorderly, disloyal elements of the community to furnish us with material from which we can answer our questions.