Crime and Custom in Savage Society - Bronisław Malinowski (co można czytać .txt) 📖
Crime and custom in savage society to rozprawa naukowa autorstwa Bronisława Malinowskiego. Została napisana po wyprawie badacza na Wyspy Triobrandzkie.
Uchodzi za podstawowe dzieło dotyczące antropologii prawa — Malinowski opisuje mechanizmy warunkujące prawo wśród społeczeństw pierwotnych oraz różne podejścia wśród osób nim objętych. Krytykuje funkcjonujące do tej pory w antropologii przekonania, bazujące na interpretacjach odwołujących się do cywilizacji Zachodu i próbach kontrastowania społeczeństw pierwotnych jako wprowadzających prawo oparte na strachu i innych zachowaniach insynktownych. Rozprawa daje nowe spojrzenie na system norm w różnych społeczeństwach, a Malinowski sprzeciwia się w niej badań nieuwzględniającym kontekstu.
Bronisław Malinowski był polskim antropologiem i socjologiem publikującym w pierwszej połowie XIX wieku. Prowadził badania społeczeństw pierwotnych w różnych zakątkach świata.
- Autor: Bronisław Malinowski
- Epoka: Współczesność
- Rodzaj: Epika
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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-solidarity’ 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.
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 jointstock 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 fust 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 tais they remain under mutual obligations to one another to appear each at his post, while every canoe is tound 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 tie corresponding title, either of ’master’ or ’steersnan’, 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 in the manoeuvres of joint fishing. Thus on a close inquiry we discover in this pursuit a definite system of division of functions and a rigid system of mutual obligations, into which a sense of duty and the recognition of the need of co-operation enter side by side with a realization of self-interest, privileges and benefits. Ownership, therefore, can be defined neither by such words as ’communism’ nor ’individualism’, nor by reference to ’joint-stock company’ system or ’personal enterprise’, but by the concrete facts and conditions of use. It is the sum of duties, privileges and mutualities which bind the joint owners to the object and to each other.
Thus, in connexion with the first object which attracted our attention — the native canoe — we are met by law, order, definite privileges and a well-developed system of obligations.
To enter more deeply into the nature of these binding obligations, let us follow the fishermen to the shore. Let us see what happens with the division of the catch. In most cases only a small proportion of it remains with the villagers. As a rule we should find a number of people from some inland community waiting on the shore. They receive the bundles of fish from the fishermen and carry them home, often many miles away, running so as to arrive while it is still fresh. Here again we should find a system of mutual services and obligations based on a standing arrangement between two village communities. The inland village supplies the fishermen with vegetables: the coastal community repays with fish. This arrangement is primarily an economic one. It has also a ceremonial aspect, for the exchange has to be done according to an elaborate ritual. But there is also the legal side, a system of mutual obligations which forces the fisherman to repay whenever he has received a gift from his inland partner, and vice versa. Neither partner can refuse, neither may stint in his return gift, neither should delay.
What is the motive force behind these obligations? The coastal and inland villages respectively have to reply upon each other for the supply of food. On the coast the natives never have enough vegetable food, while inland the people are always in need of fish. Moreover, custom will have it that on the coast all the big ceremonial displays and distributions of food, which form an extremely important aspect of the public life of these natives, must be made with certain specially large and fine varieties of vegetable food, which grow only on the fertile plains inland. There, on the other hand, the proper substance for a distribution and feast is fish. Thus to all other reasons of value of
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