Crime and Custom in Savage Society - Bronisław Malinowski (co można czytać .txt) 📖

by no means conforms to strict law, while they ignored the structure of native legal doctrine. The modern field-worker constructs it without much trouble from his native informant’s statements, but he remains ignorant of the blurs made by human nature on this theoretical outline. Hence he has re-shaped the savage into a model of legality. Truth is a combination of both versions and our knowledge of it reveals the old as well as the new figment as futile simplifications of a very complicated state of things.

This, like everything else in human cultural reality is not a consistent logical scheme, but rather a seething mixture of conflicting principles. Among these the clash of matriliny and paternal interest is probably the most important. The discrepancy between the totemic clan solidarity on the one hand, and the bonds of family or dictates of self-interest comes next. The struggle of the hereditary principle of rank with the personal influences of prowess, economic success and magical craft is also of importance. Sorcery as a personal instrument of power deserves special mention, for the sorcerer is often a dreaded competitor of the chief or headman. If space permitted I could give examples of other conflicts of a more concrete, accidental nature; the historically ascertainable gradual spread of political power of the Tabalu sub-clan (of the Malasi clan), in which we can see the principle of rank override beyond its legitimate field the law of strictly local citizenship, based on mythological claims and matrilineal succession. Or else I might describe the secular contest between the same Tabalu and the Toliwaga sub-clan (of the Lukwasisiga clan), in which the former have on their side rank, prestige and established power and the latter a stronger military organization, war-like qualities and greater success in fighting.

The most important fact from our point of view in this struggle of social principles is that it forces us to re-cast completely the traditional conception of law and order in savage communities. We have to abandon now definitely the idea of an inert, solid ’crust’ or ’cake’ of custom rigidly pressing from outside upon the whole surface of tribal life. Law and order arise out of the very processes which they govern. But they are not rigid, nor due to any inertia or permanent mould. They obtain on the contrary as the result of a constant struggle not merely of human passions against the law, but of legal principles with one another. The struggle, however, is not a free fight: it is subject to definite conditions, can take place only within certain limits and only on the condition that it remains under the surface of publicity. Once an open challenge has been entered, the precedence of strict law over legalized usage or over an encroaching principle of law is established and the orthodox hierarchy of legal systems controls the issue.

For as we have seen the conflict takes place between strict law and legalized usage, and it is possible because the former has the strength of more definite tradition behind it, while the latter draws force from personal inclinations and actual power. There exist thus within the body of law not only different types such as quasi-civil and quasi-criminal, or the law of economic transactions, of political relations, etc., but there can be distinguished degrees of orthodoxy, stringency, and validity, placing the rules into a hierarchy from the main law of Mother-right, totemism, and rank down to the clandestine evasions and the traditional means of defying law and abetting crime.

Herewith our survey of law and legal institutions in the Trobriand Islands comes to an end. In its course we have reached a number of conclusions about the existence of positive and elastic and yet binding obligations, which correspond to the civil law in more developed cultures; about the influence of reciprocity, public enactment and the systematic incidence of such obligations, which supply their main binding forces; about the negative rulings of law, the tribal prohibitions and taboos, which we have found as elastic and adaptable as the positive rules although fulfilling a different function. We were also able to suggest a new classification of the rules of custom and tradition; a revised definition of law as a special class of customary rules and to indicate further sub-divisions within the body of law itself. In this, besides the main division between quasi-civil and quasi-criminal we found that a distinction must be made between the various grades of law which can be arranged into a hierarchy from the statutes of main legitimate law, through legally tolerated usages down to evasions and traditional methods of flouting the law. We also had to discriminate between a number of distinct systems which together form the body of tribal law such as Mother-right and Father-love, political organization and magical influence, systems which at times enter into conflict, arrive at compromises and re-adjustments. There is no need to go further into detail about all this, for our conclusions were both substantiated with evidence and discussed theoretically at length.

But it is worth while to realize once more that throughout our discussion we found the real problem not in bald enumeration of rules, but in the ways and means by which these are carried out. Most instructive we found the study of the life situations which call for a given rule, the manner in which this is handled by the people concerned, the reaction of the community at large, the consequences of fulfilment or neglect. All this, which could be called the cultural-context of a primitive system of rules is equally important, if not more so, than the mere recital of a fictitious native corpus iuris28 codified into the ethnographer’s note-book as the result of question and answer, in the hearsay method of field-work.

With this we are demanding a new line of anthropological field-work: the study by direct observation of the rules of custom as they function in actual life. Such study reveals that the commandments of law and custom are always organically connected and not isolated; that their very nature consists in the many tentacles which they throw out into the context of social life; that they only exist in the chain of social transactions in which they are but a link. I maintain that the staccato manner in which most accounts of tribal life are given is the result of imperfect information, and that it is in fact incompatible with the general character of human life and the exigencies of social organization. A native tribe bound by a code of disconnected inorganic customs would fall to pieces under our very eyes.

We can only plead for the speedy and complete disappearance from the records of field-work of the piecemeal items of information, of customs, beliefs, and rules of conduct floating in the air, or rather leading a flat existence on paper with the third-dimension, that of life, completely lacking. With this the theoretical arguments of Anthropology will be able to drop the lengthy litanies of threaded statement, which make us anthropologists feel silly, and the savage look ridiculous. I mean by this the long enumerations of bald statement such as, for example, „Among the Brobdignacians when a man meets his mother-in-law, the two abuse each other and each retires with a black eye”; „When a Brodiag encounters a Polar bear he rims away and sometimes the bear follows”; „in old Caledonia when a native accidentally finds a whiskey bottle by the road-side he empties it at one gulp, after which he proceeds immediately to look for another” — and so forth. (I am quoting from memory so the statements may be only approximate, though they sound plausible.)

It is easy, however, to poke fun at the litany-method, but it is the field-worker who is really responsible. There is hardly any record in which the majority of statements are given as they occur in actuality and not as they should or are said to occur. Many of the earlier accounts were written to startle, to amuse, to be facetious at the expense of the savage, till the tables were turned and it is more easy now to be facetious at the anthropologist’s expense. To the old recorders what mattered really was the queerness of the custom, not its reality. The modern anthropologist, working through an interpreter by the question and answer method can again collect only opinions, generalizations, and bald statements. He gives us no reality, for he has never seen it. The touch of ridicule which hangs about most writings of anthropology is due to the artificial flavour of a statement torn out of its life-context. The true problem is not to study how human life submits to rules — it simply does not; the real problem is how the rules become adapted to life.

As regards our theoretical gains the analysis of Trobriand law has given us a clear view of the forces of cohesion in a primitive society, based on solidarity within the group as well as on the appreciation of personal interest. The opposition of primitive ’group-sentiment’, ’joint personality’ and ’clan absorption’ to civilized individualism and pursuit of selfish ends appear to us altogether artificial and futile. No society, however primitive or civilized, can be based on a figment or on a pathological growth on human nature.

The results of this memoir point to one more moral. Although I have confined myself principally to descriptions and statements of fact, some of these led naturally to a more general theoretical analysis which yielded certain explanations of the facts discussed. Yet in all this not once was it necessary to resort to any hypotheses, to any evolutionary or historical reconstructions. The explanations here given consisted in an analysis of certain facts into simpler elements and of tracing the relations between these elements. Or else it was possible to correlate one aspect of culture with another and to show which is the function fulfilled by either within the scheme of culture. The relation between Mother-right and the paternal principle and their partial conflict accounts, as we have seen, for a series of compromise formations such as cross-cousin marriage, types of inheritance and economic transactions, the typical constellation of father, son, and maternal uncle, and certain features of the clan system.29 Several characteristics of their social life, the chains of reciprocal duties, the ceremonial enactment of obligations, the uniting of a number of disparate transactions into one relationship have been explained by the function which they fulfil in supplying the coercive forces of law. The relation between hereditary prestige, the power of sorcery, and the influence of personal achievement as we find them in the Trobriands could be accounted for by the cultural parts played by each principle respectively. While remaining on strictly empirical ground we were able to account for all these facts and features, show their conditions as well as the ends which they fulfil, and thus to explain them in a scientific manner. This type of explanation by no means excludes further investigation as to the evolutionary level of such customs or as to their historical antecedents. There is room for the antiquarian interest as well as the scientific, but the former should not claim an exclusive or even predominant sway over Anthropology. It is high time that the student of Man should also be able to say „hypotheses non fingo”.