This lacuna2 in modern anthropology is due, not to any oversight of primitive legality, but on the contrary to its over-emphasis. Paradoxical as it sounds, it is yet true that present-day anthropology neglects primitive law just because it has an exaggerated, and I will add at once, a mistaken idea of its perfection.
Part I. Primitive Law and Order
I. The Automatic Submission to Custom and the Real Problem
When we come to inquire why rules of conduct, however hard, irksome, or unwelcome, are obeyed; what makes private life, economic cooperation, public events run so smoothly; of what, in short, consist the forces of law and order in savagery — the answer is not easy to give, and what anthropology has had to say about it is far from satisfactory. So long as it could be maintained that the ’savage’ is really savage, that he follows what little law he has but fitfully and loosely, the problem did not exist. When the question became actual, when it became plain that hypertrophy of rules rather than lawlessness is characteristic of primitive life, scientific opinion veered round to the opposite point: the savage was made not only into a model of the law-abiding citizen, but it became an axiom that in submitting to all his tribal rules and fetters, he follows the natural trend of his spontaneous impulses; that in this way he glides, so to speak, along the line of least resistance.
The savage — so runs to-day’s verdict of competent anthropologists — has a deep reverence for tradition and custom, an automatic submission to their biddings. He obeys them ’slavishly’, ’unwittingly’, ’spontaneously’, through ’mental inertia’, combined with the fear of public opinion or of supernatural punishment; or again through a ’pervading group sentiment if not group-instinct’. Thus we find the following in a recent book: „The savage is far from being the free and unfettered creature of Rousseau’s imagination. On the contrary, he is hemmed in on every side by the customs of his people, he is bound in the chains of immemorial tradition not merely in his social relations, but in his religion, his medicine, in his industry, his art: in short, every aspect of his life” (E. Sidney Hartland in Primitive Law, p. 138). With all this we might agree, except that it seems doubtful whether the „chains of tradition” are identical or even similar in art and in social relations, in industry, and in religion. But when, immediately, we are told that „these fetters are accepted by him (the savage) as a matter of course; he never seeks to break forth” — we must enter a protest. Is it not contrary to human nature to accept any constraint as a matter of course, and does man, whether civilzed or savage, ever carry out unpleasant, burdensome, cruel regulations and taboos without being compelled to? And compelled by some force or motive which he catnot resist?
Yet this automatic acquiescence, this instinctive submission of every member of the tribe to its laws, is the fundamental axiom laid at the basis of the inquiry into primitive order and adherence to rule. Thus another foremost authority on the subject, the late Dr. Rivers, speaks in the book already mentioned of an „unwitting or intuitive method of regulating social life”, which is, according to him, „closely connected with primitive communism.” And he proceeds to tell us: „Among such a people as the Melanesians there is a group sentiment which makes unnecessary any definite social machinery for the exertion of authority, in just the same manner as it makes possible the harmonious working of communal ownership, and insures the peaceful character of a communistic system of sexual relations” (Social Organization, p. 169).
Thus here again we are assured that ’unwitting’ or ’intuitive methods’, ’instinctive submission’ and some mysterious ’group-sentiment’ account for law, order, communism and sexual promiscuity alike! This sounds altogether like a Bolshevik paradise, but is certainly not correct in reference to Melanesian societies, which I know at first hand.
A similar idea is expressed by a third writer, a sociologist, who has contributed more towards our understanding of the organization of savages from the point of view of mental and social evolution than perhaps any one living anthropologist. Professor Hobhouse, speaking of the tribes on a very low level of culture, affirms that „such societies, of course, have their customs, which are doubtless felt as binding by their members, but if we mean by law a body of rules enforced by an authority independent of personal ties of kinship and friendship, such an institution is not compatible with their social organization” (Morals in Evolution, 1915, p. 73). Here we have to question the phrase „felt as binding” and ask whether it does not cover and hide the real problem instead of solving it. Is there not, with regard to some rules at least, a binding mechanism, not perhaps enforced by any central authority, but backed up by real motives, interests and complex sentiments? Can severe prohibitions, onerous duties, very burdensome and galling liabilities, be made binding by a mere ’feeling’? We should like to know more about this invaluable mental attitude, but the author simply takes it for granted. Again, the minimum definition of law as the „body of rules enforced by an authority independent of personal ties”, seems to me to be too narrow and not to lay the emphasis on the relevant elements. There are among the many norms of conduct in savage societies certain rules regarded as compulsory obligations of one individual or group towards another individual or group. The fulfilment of such obligations is usually rewarded according to the measure of its perfection, while non-compliance is visited upon the remiss agent. Taking our stand upon such a comprehensive view of law and inquiring into the nature of the forces which make it obligatory, we shall be able to arrive at much more satisfactory results than if we were to discuss questions of authority, government and punishment.
To take another representative opinion, that of one of the highest anthropological authorities in the United States, we find Dr. Lowie expressing a very similar view: „Generally speaking, the unwritten laws of customary usage are obeyed far more willingly than our written codes, or rather they are obeyed spontaneously.” To compare the ’willingness’ in obedience to law of an Australian savage with a New Yorker, or of a Melanesian with a nonconformist citizen of Glasgow, is a perilous proceeding and its results have to be taken very ’generally’ indeed, until they lose all meaning. The fact is that no society can work in an efficient manner unless laws are obeyed ’willingly’ and ’spontaneously’3. The threat of coercion and the fear of punishment do not touch the average man, whether ’savage’ or ’civilized’, while, on the other hand, they are indispensable with regard to certain turbulent or criminal elements in either society. Again, there is a number of laws, taboos and obligations in every human culture which weigh heavily on every citizen, demand great self-sacrifice, and are obeyed for moral, sentimental or matter-of-fact reasons, but without any ’spontaneity’.
It would be easy to multiply statements and to show that the dogma of the automatic submission to custom dominates the whole inquiry into primitive law. In all fairness, however, it must be stressed that any shortcomings in theory or observation are due to the real difficulties and pitfalls of which this subject is so full.