Going over the relations and transactions previously described, it is easy to see that the same principle of mutuality supplies the sanction for each rule. There is in every act a sociological dualism: two parties who exchange services and functions, each watching over the measure of fulfilment and the fairness of conduct of the other. The master of the canoe, whose interests and ambitions are bound up with his craft, looks after order in the internal transactions between the members of the crew and represents the latter externally. To him each member of the crew is bound at the time of construction and ever after, when co-operation is necessary. Reciprocally, the master has to give each man the ceremonial payment at the feast of construction; the master cannot refuse any one his place in the boat; and he has to see that each man receives his fair share of the catch. In this and in all the manifold activities of economic order, the social behaviour of the natives is based on a well-assessed give-and-take, always mentally ticked off and in the long run balanced. There is no wholesale discharge of duties or acceptance of privileges; no ’communistic’ disregard of tally and ear-mark. The free and easy way in which all transactions are done, the good manners which pervade all and cover any hitches or maladjustments, make it difficult for the superficial observer to see the keen self-interest and watchful reckoning which runs right through. To one who knows the natives intimately, nothing is more patent than this. The same control which the master assumes within his canoe, is taken within the community by the headman who is, as a rule, also the hereditary magician.
V. Law, Self-interest, and Social Ambition
It scarcely needs to be added that there are also other driving motives, besides the constraint of reciprocal obligations, which keep the fishermen to their task. The utility of the pursuit, the craving for the fresh, excellent diet, above all, perhaps, the attraction of what to the natives is an intensely fascinating sport — move them more obviously, more consciously even, and more effectively than what we have described as the legal obligation. But the social constraint, the regard for the effective rights and claims of others is always prominent in the mind of the natives as well as in their behaviour, once this is well understood. It is also indispensable to ensure the smooth working of their institutions. For in spite of all zest and attractions, there are on each occasion a few individuals, indisposed, moody, obsessed by some other interest — very often by an intrigue — who would like to escape from their obligation, if they could. Anyone who knows how extremely difficult, if not impossible, it is to organize a body of Melanesians for even a short and amusing pursuit requiring concerted action, and how well and readily they set to work in their customary enterprises, will realize the function and the need of compulsion, due to the native’s conviction that another man has a claim on his work.
There is yet another force which makes the obligations still more binding. I have mentioned already the ceremonial aspect of the transactions. The gifts of food in the system of exchange described above must be offered according to strict formalities, in specially made measures of wood, carried and presented in a prescribed manner, in a ceremonial procession and with a blast of conch-shells. Now nothing has a greater sway over the Melanesian’s mind than ambition and vanity associated with a display of food and wealth. In the giving of gifts, in the distribution of their surplus, they feel a manifestation of power, and an enhancement of personality. The Trobriander keeps his food in houses better made and more highly ornamented than his dwelling huts. Generosity is the highest virtue to him, and wealth the essential element of influence and rank. The association of a semicommercial transaction with definite public ceremonies supplies another binding force of fulfilment through a special psychological mechanism: the desire for display, the ambition to appear munificent, the extreme esteem for wealth and for the accumulation of food.
We have thus gained some insight into the nature of the mental and social forces which make certain rules of conduct into binding law. Nor is the binding force superfluous. Whenever the native can evade his obligations without the loss of prestige, or without the prospective loss of gain, he does so, exactly as a civilized business man would do. When the ’automatic smoothness’ in the run of obligations so often attributed to the Melanesian is studied more closely, it becomes clear that there are constant hitches in the transactions, that there is much grumbling and recrimination and seldom is a man completely satisfied with his partner. But, on the whole, he continues in the partnership and, on the whole, every one tries to fulfil his obligations, for he is impelled to do so partly through enlightened self-interest, partly in obedience to his social ambitions and sentiments. Take the real savage, keen on evading his duties, swaggering and boastful when he has fulfilled them, and compare him with the anthropologist’s dummy who slavishly follows custom and automatically obeys every regulation. There is not the remotest resemblance between the teachings of anthropology on this subject and the reality of native life. We begin to see how the dogma of mechanical obedience to law would prevent the field-worker from seeing the really relevant facts of primitive legal organization. We understand now that the rules of law, the rules with a definite binding obligation, stand out from the mere rules of custom. We can see also that civil law, consisting of positive ordinances, is much more developed than the body of mere prohibitions, and that a study of purely criminal law among savages misses the most important phenomena of their legal life.
It is also obvious that the type of rules which we have been discussing, although they are unquestionably rules of binding law, have in no way the character of religious commandments, laid down absolutely, obeyed rigidly and integrally. The rules here described are essentially elastic and adjustable, leaving a considerable latitude within which their fulfilment is regarded as satisfactory. The bundles of fish, the measures of yams, or bunches of taro, can only be roughly assessed, and naturally the quantities exchanged vary according to whether the fishing season or the harvest is more abundant. All this is taken into account and only wilful stinginess, neglect, or laziness are regarded as a breach of contract. Since, again, largesse is a matter of honour and praise, the average native will strain all his resources to be lavish in his measure. He knows, moreover, that any excess in zeal and generosity is bound sooner or later to be rewarded.
We can see now that a narrow and rigid conception of the problem — a definition of ’law’ as the machinery of carrying out justice in cases of trespass — would leave on one side all the phenomena to which we have referred. In all the facts described, the element or aspect of law, that is of effective social constraint, consists in the complex arrangements which make people keep to their obligations. Among them the most important is the manner in which many transactions are linked into chains of mutual services, every one of them having to be repaid at some later date. The public and ceremonial manner in which these transactions are usually carried out, combined with the great ambition and vanity of the Melanesian adds also to the safeguarding forces of law.
VI. The Rules of Law in religious acts
I have referred so far mainly to economic relations, for civil law is primarily concerned with ownership and wealth among savages as well as among ourselves. But we could find the legal aspect in any other domain of tribal life. Take for example the most characteristic acts of ceremonial life — the rites of mourning and sorrow for the dead. At first we perceive in them, naturally, their religious character: they are acts of piety towards the deceased, caused by fear or love or solicitude for the spirit of the departed. As the ritual and public display of emotion they are also part of the ceremonial life of the community.
Who, however, would suspect a legal side to such religious transactions? Yet in the Trobriands there is not one single mortuary act, not one ceremony, which is not considered to be an obligation of the performer towards some of the other survivors. The widow weeps and wails in ceremonial sorrow, in religious piety and fear — but also because the strength of her grief affords direct satisfaction to the deceased man’s brothers and maternal relatives. It is the matrilineal group of kindred who, according to the native theory of kinship and mourning, are the people really bereaved. The wife, though she lived with her husband, though she should grieve at his death, though often she really and sincerely does so, remains but a stranger by the rules of matrilineal kinship. It is her duty towards the surviving members of her husband’s clan, accordingly, to display her grief, to keep a long period of mourning and to carry the jaw-bone of her husband for some years after his death. Nor is this obligation without reciprocity. At the first big ceremonial distribution, some three days after her husband’s death, she will receive from his kinsmen a ritual payment, and a substantial one, for her tears; and at later ceremonial feasts she is given more payments for the subsequent services of mourning. It should also be kept in mind that to the natives mourning is but a link in the lifelong chain of reciprocities between husband and wife and between their respective families.