Crime and Custom in Savage Society by Russell Smith Bronislaw Malinowski

Author:Russell Smith, Bronislaw Malinowski [Russell Smith, Bronislaw Malinowski]
Language: eng
Format: epub
Tags: Social Science, Anthropology, Cultural & Social, Sociology, General
ISBN: 9781351525121
Google: 7vdKDwAAQBAJ
Barnesnoble:
Publisher: Routledge
Published: 2018-02-06T00:00:00+00:00

11

An Anthropological Definition of Law

The rules of law stand out from the rest in that they are felt and regarded as the obligations of one person and the rightful claims of another. They are sanctioned not by a mere psychological motive, but by a definite social machinery of binding force, based, as we know, upon mutual dependence, and realized in the equivalent arrangement of reciprocal services, as well as in the combination of such claims into strands of multiple relationship. The ceremonial manner in which most transactions are carried out, which entails public control and criticism, adds still more to their binding force.

We may therefore finally dismiss the view that ‘group-sentiment’ or ‘collective responsibility’ is the only or even the main force which ensures adhesion to custom and which makes it binding or legal. Esprit de corps, solidarity, pride in one’s community and clan exist undoubtedly among the Melane-sians—no social order could be maintained without them in any culture high or low. I only want to enter a caution against such exaggerated views as those of Rivers, Sidney Hartland, Durkheim, and others, which would make this unselfish, impersonal, unlimited group-loyalty the corner-stone of all social order in primitive cultures. The savage is neither an extreme ‘collectivist’ nor an intransigent ‘individualist'—he is, like man in general, a mixture of both.

It results also from the account here given that primitive law does not consist exclusively or even chiefly of negative injunctions, nor is all savage law criminal law. And yet it is generally held that with the description of crime and punishment the subject of jurisprudence is exhausted as far as a savage community is concerned. As a matter of fact the dogma of automatic obedience, i.e. the absolute rigidity of the rules of custom implies an over-emphasis of criminal law in primitive communities and a corresponding denial of the possibility of civil law. Absolutely rigid rules cannot be stretched or adapted to life, they need not be enforced—but they can be broken. So much even the believers in a primitive super-legality must admit. Hence crime is the only legal problem to be studied in primitive communities, there is no civil law among savages, nor any civil jurisprudence for anthropology to work out. This view has dominated comparative studies of law from Sir Henry Maine to the most recent authorities, such as Prof. Hobhouse, Dr. Lowie, and Mr. Sidney Hartland. Thus we read in Mr. Hartland’s book that in primitive societies “the core of legislation is a series of taboos”, and that “almost ail early codes consist of prohibitions” (Primitive Law, p. 214). And again, “the general belief in the certainty of supernatural punishment and the alienation of the sympathy of one’s fellows generate an atmosphere of terror which is quite sufficient to prevent a breach of tribal customs . . .” (p. 8—the italics are mine). There is no such “atmosphere of terror” unless perhaps in the case of a few very exceptional and sacred rules of ritual and religion, and

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