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

Anthropology is still to most laymen and to many specialists mainly an object of antiquarian interest. Savagery is still synonymous with absurd, cruel, and eccentric customs, with quaint superstitions and revolting practices. Sexual licence, infanticide, head-hunting, couvade1, cannibalism and what not, have made anthropology attractive reading to many, a subject of curiosity rather than of serious scholarship to others. There are, however, certain aspects of anthropology which are of a genuine scientific character, in that they do not lead us beyond empirical fact into realms of uncontrollable conjecture, in that they widen our knowledge of human nature, and are capable of a direct practical application. I mean such a subject, for example, as primitive economics, important for our knowledge of man’s economic disposition and of value to those who wish to develop the resources of tropical countries, employ indigenous labour and trade with the natives. Or again, a subject such as the comparative study of the mental processes of savages, a line of research which has already proved fertile to psychology and might be made useful to those engaged in educating or morally improving the native. Last, but not least, there is the subject of primitive law, the study of the various forces which make for order, uniformity and cohesion in a savage tribe. The knowledge of these forces should have formed the foundation of anthropological theories of primitive organization and should have yielded the guiding principles of Colonial legislation and administration. A fuller knowledge of the so-called savages has revealed „Ye beastly devices of Ye heathen” as the product of firm law and of strict tradition, due to biological, mental and social needs of human nature, rather than as the outcome of unbridled passion and unfettered excess. Law and order pervade the tribal usages of primitive races, they govern all the humdrum course of daily existence, as well as the leading acts of public life, whether these be quaint and sensational or important and venerable. Yet of all branches of anthropology, primitive jurisprudence has received in recent times the scantiest and the least satisfactory treatment.

Anthropology has not always been so indifferent about savage justice and the methods of its administration as it is at present. About half a century ago there was a positive epidemic of research into primitive law, especially on the Continent, more particularly in Germany. It is enough to mention the names of Bachofen, Post, Bemhoft, Kohler and the other writers grouped round the „Zeitschrift für vergleichende Rechtswissenschaft” to remind the sociologist of the scope, volume and quality of the work done by them. This work, however, was heavily handicapped. The writers had to rely upon the data of the early amateur ethnographers — modern field-work of the trained specialist, done with method, purpose and knowledge of the problems, was at that time not yet in existence. In an abstract and complex subject such as primitive law, amateur observations are on the whole useless.

The early German students of savage law again were all and one committed to the hypothesis of ’primitive promiscuity’ and ’group-marriage’ just as their British contemporary, Sir Henry Maine, was handicapped by his too narrow adhesion to the patriarchal scheme. Most of these continental efforts in anthropological jurisprudence were directed to — in fact, wasted upon — the task of proving that Morgan’s theories were correct. The myth of ’group-marriage’ was casting its shadow on all their arguments and descriptions and it infected their juridical constructions with the kindred concepts of ’group-responsibility’, ’group-justice’, ’group-property’ and ’communism’, in short, with the dogma of the absence of individual rights and liabilities among savages.

Underlying all these ideas was the assumption that in primitive societies the individual is completely dominated by the group — the horde, the clan or the tribe — that he obeys the commands of his community, its traditions, its public opinion, its decrees, with a slavish, fascinated, passive obedience. This assumption, which gives the leading tone to certain modern discussions upon the mentality and sociality of savages, still survives in the French school of Durkheim, in most American and German works and in some English writings.

Thus handicapped by insufficient material and baseless assumptions, the early school of anthropological jurisprudence was driven into an impasse of artificial and sterile constructions. In consequence it proved incapable of real vitality, and the whole interest in the subject heavily slumped — in fact, almost entirely subsided — after its first short-lived boom. One or two important books on the subject appeared — Steinmetz’s inquiries into the beginnings of punishment, Durkheim’s analysis of early criminal and civil law — but, on the whole, the first impetus has proved so little inspiring that most modern anthropologists, both in theory and in field-work, ignore its very existence. In the standard manual Notes and Queries on Anthropology, ’law’ appears neither in the index nor in the table of contents, and the few lines devoted to it under the heading of „Government: Politics”, excellent as they are, do not correspond in any way to the importance of the subject. In the book of the late Dr. Rivers on Social Organization the problem of primitive law is discussed only incidentally, and, as we shall see, it is rather banished from primitive sociology than included in it by the author’s brief reference.

This lacuna2 in modern anthropology is due, not to any oversight of primitive legality, but on the contrary to its over-emphasis. Paradoxical as it sounds, it is yet true that present-day anthropology neglects primitive law just because it has an exaggerated, and I will add at once, a mistaken idea of its perfection.