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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This is not limited to the exchange of fish for vegetables. As a rule, two communities rely upon each other in other forms of trading and other mutual services as well. Thus every chain of reciprocity is made the more binding by being part and parcel of a whole system of mutualities.
I have found only one writer who fully appreciates the importance of reciprocity in primitive social organization. The leading German anthropologist, Prof. Thumwald of Berlin, clearly recognizes „die Symmetric des Gesellschaftsbaus” and the corresponding „Symmetric von Handlungen”.4 Throughout his monograph, which is perhaps the best account of the social organization of a savage tribe extant, Prof. Thumwald shows how the symmetry of social structure and of actions pervades native life. Its importance as a legal binding form is not, however, explicitly stated by the writer, who seems to be aware of its psychological foundation ’in human feeling’ rather than of its social function in safeguarding the continuity and adequacy of mutual services.
The old theories of tribal dichotomy, the discussions about the ’origins’ of ’phratries5’ or ’moieties6’ and of the duality in tribal subdivisions, never entered into the inner or differential foundations of the external phenomenon of halving. The recent treatment of the ’dual organization’ by the late Dr. Rivers and his school suffers badly from the defect of looking for recondite causes instead of analysing the phenomenon itself. The dual principle is neither the result of ’fusion’ nor ’splitting’ nor of any other sociological cataclysm. It is the integral result of the inner symmetry of all social transactions, of the reciprocity of services, without which no primitive community could exist. A dual organization may appear clearly in the division of a tribe into two ’moieties’ or be almost completely obliterated — but I venture to foretell that wherever careful inquiry be made, symmetry of structure will be found in every savage society, as the indispensable basis of reciprocal obligations.
The sociological manner in which the relations of reciprocity are arranged, makes them yet more stringent. Between the two communities the exchanges are not carried out haphazard, any two individuals trading with each other at random. On the contrary, every man has his permanent partner in the exchange, and the two have to deal with each other. They are often relatives-in-law, or else sworn friends, or partners in the important system of ceremonial exchange called kula. Within each community again the individual partners are ranged into totemic sub-clans. So that the exchange establishes a system of sociological ties of an economic nature, often combined with other ties between individual and individual, kinship group and kinship group, village and village, district and district.
Going over the relations and transactions previously described, it is easy to see that the same principle of mutuality supplies the sanction for each rule. There is in every act a sociological dualism: two parties who exchange services and functions, each watching over the measure of fulfilment and the fairness of conduct of the other. The master of the canoe, whose interests and ambitions are bound up with his craft, looks after order in the internal transactions between the members of the crew and represents the latter externally. To him each member of the crew is bound at the time of construction and ever after, when co-operation is necessary. Reciprocally, the master has to give each man the ceremonial payment at the feast of construction; the master cannot refuse any one his place in the boat; and he has to see that each man receives his fair share of the catch. In this and in all the manifold activities of economic order, the social behaviour of the natives is based on a well-assessed give-and-take, always mentally ticked off and in the long run balanced. There is no wholesale discharge of duties or acceptance of privileges; no ’communistic’ disregard of tally and ear-mark. The free and easy way in which all transactions are done, the good manners which pervade all and cover any hitches or maladjustments, make it difficult for the superficial observer to see the keen self-interest and watchful reckoning which runs right through. To one who knows the natives intimately, nothing is more patent than this. The same control which the master assumes within his canoe, is taken within the community by the headman who is, as a rule, also the hereditary magician.
It scarcely needs to be added that there are also other driving motives, besides the constraint of reciprocal obligations, which keep the fishermen to their task. The utility of the pursuit, the craving for the fresh, excellent diet, above all, perhaps, the attraction of what to the natives is an intensely fascinating sport — move them more obviously, more consciously even, and more effectively than what we have described as the legal obligation. But the social constraint, the regard for the effective rights and claims of others is always prominent in the mind of the natives as well as in their behaviour, once this is well understood. It is also indispensable to ensure the smooth working of their institutions. For in spite of all zest and attractions, there are on each occasion a few individuals, indisposed, moody, obsessed by some other interest — very often by an intrigue — who would like to escape from their obligation, if they could. Anyone who knows how extremely difficult, if not impossible, it is to organize a body of Melanesians for even a short and amusing pursuit requiring concerted action, and how well and readily they set to work in their customary enterprises, will realize the function and the need of compulsion, due to the native’s conviction that another man has a claim on his work.
There is yet another force which makes the obligations still more binding. I have mentioned already the ceremonial aspect of the transactions. The gifts of food in the system of exchange described above must be offered according to strict formalities, in specially made measures of wood, carried and presented in a prescribed manner, in a ceremonial procession and with a blast of conch-shells. Now nothing has a greater sway over the Melanesian’s mind than ambition and vanity associated with a display of food and wealth. In the giving of gifts, in the distribution of their surplus, they feel a manifestation of power, and an enhancement of personality. The Trobriander keeps his food in houses better made and more highly ornamented than his dwelling huts. Generosity is the highest virtue to him, and wealth the essential element of influence and rank. The association of a semicommercial transaction with definite public ceremonies supplies another binding force of fulfilment through a special psychological mechanism: the desire for display, the ambition to appear munificent, the extreme esteem for wealth and for the accumulation of food.
We have thus gained some insight into the nature of the mental and social forces which make certain rules of conduct into binding law. Nor is the binding force superfluous. Whenever the native can evade his obligations without the loss of prestige, or without the prospective loss of gain, he does so, exactly as a civilized business man would do. When the ’automatic smoothness’ in the run of obligations so often attributed to the Melanesian is studied more closely, it becomes clear that there are constant hitches in the transactions, that there is much grumbling and recrimination and seldom is a man completely satisfied with his partner. But, on the whole, he continues in the partnership and, on the whole, every one tries to fulfil his obligations, for he is impelled to do so partly through enlightened self-interest, partly in obedience to his social ambitions and sentiments. Take the real savage, keen on evading his duties, swaggering and boastful when he has fulfilled them, and compare him with the anthropologist’s dummy who slavishly follows custom and automatically obeys every regulation. There is not the remotest resemblance between the teachings of anthropology on this subject and the reality of native life. We begin to see how the dogma of mechanical obedience to law would prevent the field-worker from seeing the really relevant facts of primitive legal organization. We understand now that the rules of law, the rules with a definite binding obligation, stand out from the mere rules of custom. We can see also that civil law, consisting of positive ordinances, is much more developed than the body of mere prohibitions, and that a study of purely criminal law among savages misses the most important phenomena of their legal life.
It is also obvious that the type of rules which we have been discussing, although they are unquestionably rules of binding law, have in no way the character of religious commandments, laid down absolutely, obeyed rigidly and integrally. The rules here described are essentially elastic and adjustable, leaving a considerable latitude within which their fulfilment is regarded as satisfactory. The bundles of fish, the measures of yams, or bunches of taro, can only be roughly assessed, and naturally the quantities exchanged vary according to whether the fishing season or the harvest is more abundant. All this is taken into account and only wilful stinginess, neglect, or laziness are regarded as a breach of contract. Since, again, largesse is a matter of honour and praise, the average native will strain all his resources to be lavish in his measure. He knows, moreover, that any excess in zeal and generosity is bound sooner or later to be rewarded.
We can see now that a narrow and rigid conception of the problem — a definition of ’law’ as the machinery of carrying out justice in cases of trespass — would leave on one side all the phenomena to which we have referred. In all the facts described, the element or aspect of law, that is of effective social constraint, consists in the complex arrangements which make people keep to their obligations. Among them the most important is the manner in which many transactions are linked into chains of mutual services, every one of them having to be repaid at some later date. The public and ceremonial manner in which these transactions are usually carried out, combined with the great ambition and vanity of the Melanesian adds also to the safeguarding forces of law.
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I have referred so far mainly to economic relations, for civil law is primarily concerned with ownership and wealth among savages as well as among ourselves. But we could find the legal aspect in any other domain of tribal life. Take for example the most characteristic acts of ceremonial life — the rites of mourning and sorrow for the dead. At first we perceive in them, naturally, their religious character: they are acts of piety towards the deceased, caused by fear or love or solicitude for the spirit of the departed. As the ritual and public display of emotion they are also part of the ceremonial life of the community.
Who, however, would suspect a legal side to such religious transactions? Yet in the Trobriands there is not one single mortuary act, not one ceremony, which is not considered to be an obligation of the performer towards some of the other survivors. The widow weeps and wails in ceremonial sorrow, in
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