The extreme difficulty of the problem lies, I think, in the very complex and diffuse nature of the forces which constitute primitive law. Accustomed as we are to look for a definite machinery of enactment, administration, and enforcement of law, we cast round for something analogous in a savage community and, failing to find there any similar arrangements, we conclude that all law is obeyed by this mysterious propensity of the savage to obey it.
Anthropology seems here to be faced by a similar difficulty as the one overcome by Tylor in his „minimum definition of religion”. By defining the forces of law in terms of central authority, codes, courts, and constables, we must come to the conclusion that law needs no enforcement in a primitive community and is followed spontaneously. That the savage does break the law sometimes, though rarely and occasionally, has been recorded by observers and taken into account by builders of anthropological theory, who have always maintained that criminal law is the only law of savages. But that his observance of the rules of law under the normal conditions, when it is followed and not defied, is at best partial, conditional, and subject to evasions; that it is not enforced by any wholesale motive like fear of punishment, or a general submission to all tradition, but by very complex psychological and social inducements — all this is a state of affairs which modern anthropology has so far completely overlooked. In the following account I shall try to establish it for one ethnographic province, north-west Melanesia, and I shall show reasons why observations of similar nature to those carried out by myself should be extended to other societies in order to give us some idea about their legal conditions.
We shall approach our facts with a very elastic and wide conception of the problem before us. In looking for ’law’ and legal forces, we shall try merely to discover and analyse all the rules conceived and acted upon as binding obligations, to find out the nature of the binding forces, and to classify the rules according to the manner in which they are made valid. We shall see that by an inductive examination of facts, carried out without any preconceived idea or ready-made definition, we shall be enabled to arrive at a satisfactory classification of the norms and rules of a primitive community, at a clear distinction of primitive law from other forms of custom, and at a new, dynamic conception of the social organization of savages. Since the facts of primitive law described in this article have been recorded in Melanesia, the classical area of ’communism’ and ’promiscuity’, of ’group-sentiment’, ’clan-solidarity’ and ’spontaneous obedience’, the conclusions we shall be able to draw — which will dispose of these catch-words and all they stand for — may be of special interest.
II. Melanesian Economics and the Theory of Primitive Communism
The Trobriand Archipelago, which is inhabited by the Melanesian community referred to, lies to the north-east of New Guinea and consists of a group of flat coral islands, surrounding a wide lagoon. The plains of the land are covered with fertile soil and the lagoon teems with fish, while both afford easy means of intercommunication to the inhabitants. Accordingly, the islands support a dense population mainly engaged in agriculture and fishing, but expert also in various arts and crafts and keen on trade and exchange.
Like all coral islanders, they spend a great deal of their time on the central lagoon. On a calm day it is alive with canoes carrying people or produce, or engaged in one of their manifold systems of fishing. A superficial acquaintance with these pursuits might leave one with an impression of arbitrary disorder, anarchy, complete lack of system. Patient and painstaking observations would soon reveal, however, not only that the natives have definite technical systems of catching fish and complex economic arrangements, but also that they have a close organization in their working teams, and a fixed division of social functions.
Thus, within each canoe it would be found that there is one man who is its rightful owner, while the rest act as a crew. All these men, who as a rule belong to the same sub-clan, are bound to each other and to their fellow-villagers by mutual obligations; when the whole community go out fishing, the owner cannot refuse his canoe. He must go out himself or let some one else do it instead. The crew are equally under an obligation to him. For reasons which will presently become clear, each man must fill his place and stand by his task. Each man also receives his fair share in the distribution of the catch as an equivalent of his service. Thus the ownership and use of the canoe consist of a series of definite obligations and duties uniting a group of people into a working team.
What makes the conditions even more complex is that the owners and the members of the crew are entitled to surrender their privileges to any one of their relatives and friends. This is often done, but always for a consideration, for a repayment. To an observer who does not grasp all the details, and does not follow all the intricacies of each transaction, such a state of affairs looks very much like communism: the canoe appears to be owned jointly by a group and used indiscriminately by the whole community.
Dr. Rivers in fact tells us that „one of the objects of Melanesian culture which is usually, if not always, the subject of common ownership is the canoe”, and further on, in reference to this statement, he speaks about „the great extent to which communistic sentiments concerning property dominate the people of Melanesia” (Social Organization, pp. 106 and 107). In another work, the same writer speaks about „the socialistic or even communistic behaviour of such societies as those of Melanesia” (Psychology and Politics, pp. 86 and 87). Nothing could be more mistaken than such generalizations. There is a strict distinction and definition in the rights of every one and this makes ownership anything but communistic. We have in Melanesia a compound and complex system of holding property, which in no way partakes of the nature of ’socialism’ or ’communism’. A modern jointstock company might just as well be called a ’communistic enterprise’. As a matter of fact, any descriptions of a savage institution in terms such as ’communism’, ’capitalism’ or ’joint-stock company’ borrowed from present-day economic conditions or political controversy, cannot but be misleading.
The only correct proceeding is to describe the legal state of affairs in terms of concrete fact. Thus, the ownership of a Trobriand fishing canoe is defined by the manner in which the object is made, used and regarded by the group of men who produced it and enjoy its possession. The master of the canoe, who acts at the same time as the head of the team and as the fishing magician of the canoe, has fust of all to finance the building of a new craft, when the old one is worn out, and he has to maintain it in good repair, helped in this by the rest of his crew. In tais they remain under mutual obligations to one another to appear each at his post, while every canoe is tound to come when a communal fishing has been arranged.