Crime and Custom in Savage Society

[1926/1940]

Malinowski

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136417245
• Edition: 1
• Topic: Literature
• Subtopic: Literary Criticism
• Index: Literature

This volume discusses aspects of small scale societies, including the study of the mental processes, as well as indigenous economics and law.

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 co-operation, 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 civilized or savage, ever carry out unpleasant, burdensome, cruel regulations and taboos without being compelled to? And compelled by some force or motive which he cannot 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.”¹ 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’. 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.

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-sohdarity’, 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.

¹ Primitive Society, Chap, on “Justice”, p. 387, English edition.

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 joint-stock 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 first 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 this they remain under mutual obligations to one another to appear each at his post, while every canoe is bound to come when a communal fishing has been arranged.

In using the craft, every joint owner has a right to a certain place in it and to certain duties, privileges, and benefits associated with it. He has his post in the canoe, he has his task to perform, and enjoys the corresponding title, either of ‘master’ or ‘steersman’, or ‘keeper of the nets’, or ‘watcher for fish’. His position and title are determined by the combined action of rank, age, and personal ability. Each canoe also has its place in the fleet and its part to play ...

Table of contents

• Cover
• Half Title
• Malinowski: Collected Works
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Introduction
• Part I Primitive Law and Order
• Part II Primitive Crime and its Punishment
• Index