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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Each class of rules just enumerated is distinguishable from the rest by its sanctions and by its relation to the social organization of the tribe and to its culture. They do not form this amorphous mass of tribal usage or ’cake of custom’ of which we have been hearing so much. The last category, the fundamental rules safeguarding life, property and personality form the class which might be described as ’criminal law’ — very often over-emphasized by anthropologists and falsely connected with the problem of ’government’ and ’central authority’ and invariably torn out of its proper context of other legal rules. For — and here we come at last to the most important point — there exists a class of binding rules which control most aspects of tribal life, which regulate personal relations between kinsmen, clansmen and tribesmen, settle economic relations, the exercise of power and of magic, the status of husband and wife and of their respective families. These are the rules of a Melanesian community which correspond to our civil law.
There is no religious sanction to these rules, no fear, superstitious or rational, enforces them, no tribal punishment visits their breach, nor even the stigma of public opinion or moral blame. The forces which make these rules binding we shall lay bare and find them not simple but clearly definable, not to be described by one word or one concept, but very real none the less. The binding forces of Melanesian civil law are to be found in the concatenation of the obligations, in the fact that they are arranged into chains of mutual services, a give and take extending over long periods of time and covering wide aspects of interest and activity. To this there is added the conspicuous and ceremonial manner in which most of the legal obligations have to be discharged. This binds people by an appeal to their vanity and self-regard, to their love of self-enhancement by display. Thus the binding force of these rules is due to the natural mental trend of self-interest, ambition and vanity, set into play by a special social mechanism into which the obligatory actions are framed.
With a wider and more elastic ’minimum definition’ of law, there is no doubt that new legal phenomena of the same type as those found in N. W. Melanesia will be discovered. There is no doubt that custom is not based only on a universal, undifferentiated, ubiquitous force, this mental inertia, though this unquestionably exists, and adds its quota to other constraint. There must be in all societies a class of rules too practical to be backed up by religious sanctions, too burdensome to be left to mere goodwill, too personally vital to individuals to be enforced by any abstract agency. This is the domain of legal rules, and I venture to foretell that reciprocity, systematic incidence, publicity and ambition will be found to be the main factors in the binding machinery of primitive law.
It lies in the nature of scientific interest, which is but refined curiosity, that it turns more readily to the extraordinary and sensational than to the normal and matter-of-course. At first, in a new line of research or in a young branch of study, it is the exception, the apparent breach of the natural law, which attracts attention and gradually leads to the discovery of new universal regularities. For — and here lies the paradox of scientific passion — systematic study takes up the miraculous only to transform it into the natural. Science in the long run builds up a Universe well-regulated, founded on generally valid laws, driven by definite all-pervading forces, ordered according to a few fundamental principles.
Not that wonder, the romance of the marvellous and mysterious, should be banished by science from reality. The philosophic mind is ever kept on its course by the desire for new worlds and new experiences, and metaphysics lures us on by the promise of a vision beyond the rim of the furthest horizon. But the character of curiosity, the appreciation of what really is marvellous has been changed in the meantime by the discipline of science. The contemplation of the great lines of the world, the mystery of immediate data and ultimate ends, the meaningless impetus of ’creative evolution’ make reality sufficiently tragic, mysterious, and questionable to the naturalist or student of culture, if he chooses to reflect upon the sum total of his knowledge and contemplate its limits. But to the mature scientific mind there can be no more thrills from the unexpected accident, no isolated sensation of a new, unrelated landscape in the exploration of reality. Every new discovery is but a step further on the same road, every new principle merely extends or shifts our old horizon.
Anthropology, still a young science, is now on the way to free itself from the control of pre-scientific interest, though certain recent attempts at offering extremely simple and, at the same time, sensational solutions of all the riddles of Culture are still dominated by crude curiosity. In the study of primitive law we can perceive this sound tendency in the gradual but definite recognition that savagery is not ruled by moods, passions, and accidents, but by tradition and order. Even then there remains something of the old ’shocker’ interest in the over-emphasis of criminal justice, in the attention devoted to the breaches of the law and their punishment. Law in modern Anthropology is still almost exclusively studied in its singular and sensational manipulations, in cases of blood-curdling crime, followed by tribal vendetta, in accounts of criminal sorcery with retaliation, of incest, adultery, breach of taboo or murder. In all this, besides the dramatic piquancy of the incidents, the anthropologist can, or thinks he can, trace certain unexpected, exotic, astonishing features of primitive law: a transcending solidarity of the kindred group, excluding all sense of self-interest; a legal and economic Communism; a submission to a rigid, undifferentiated tribal law.15
As a reaction against the method and the principles just stated, I have tried to approach the facts of primitive law in the Trobriands from the other end. I have started with the description of the ordinary, not the singular; of the law obeyed and not the law broken; of the permanent currents and tides in their social life and not its adventitious storms. From the account given, I have been able to conclude that contrary to most established views civil law — or its savage equivalent — is extremely well developed, and that it rules all aspects of social organization. We also found that it is clearly distinguishable, and distinguished by the natives, from the other types of norm, whether morals or manners, rules of art or commands of religion. The rules of their law, far from being rigid, absolute or issued in the Divine Name, are maintained by social forces, understood as rational and necessary, elastic and capable of adjustment. Far also from being exclusively a group affair, his rights and his duties are in the main the concern of the individual, who knows perfectly well how to look after his interests and realizes that he has to redeem his obligations. We found indeed that the native’s attitude towards duty and privilege is very much the same as in a civilized community — to the extent in fact that he not only stretches but also at times breaks the law. And this subject, not yet discussed, will claim our attention in these chapters. It would be a very one-sided picture indeed of the law in the Trobriands, if the rules were shown only in good working order, if the system were only described in equilibrium! That law functions only very imperfectly, that there are many hitches and breakdowns, I have now and again indicated, but a full description of the criminal and dramatic issues is necessary, though, as I have said, it should not be unduly emphasized.
There is still one reason why we must have a close look at native life in disorder. We found that in the Trobriands, social relations are governed by a number of legal principles. The most important of these is Mother-right, which rules that a child is bodily related and morally beholden by kinship to its mother and to her only. This principle governs succession to rank, power and dignities, economic inheritance, the rights to soil and to local citizenship and membership in the totemic clan. The status between brother and sister, the relations between the sexes and most of their private and public social intercourse is defined by rules forming part of matriarchal law. The economic duties of a man towards his married sister and her household constitute a strange and important feature of this law. The whole system is based on mythology, on the native theory of procreation, on certain of their magico-religious beliefs and it pervades all the institutions and customs of the tribe.
But, side by side with the system of Mother-right, in its shadow so to speak, there exist certain other, minor systems of legal rules. The law of marriage, defining the status of husband and wife, with its patrilocal arrangements, with its limited but clear bestowal of authority on the man and of guardianship over his wife and children in certain specified matters, is based on legal principles independent of Mother-right, though on several points intertwined with it and adjusted to it. The constitution of a village community, the position of the headman in his village and of the chief in his district, the privileges and duties of the public magician — all these are independent legal systems.
Now since we know that primitive law is not perfect, the problem emerges: how does this composite body of systems behave under the strain of circumstances? Is each system well harmonized within its own limits? Does such a system, moreover, keep within its limits or has it a tendency to encroach upon alien ground? Do the systems then come into conflict, and what is the character of such conflict? Here once more we have to appeal to the criminal, disorderly, disloyal elements of the community to furnish us with material from which we can answer our questions.
In the accounts to which we now proceed — and which will be given concretely and with some detail — we shall keep before us the main problems still unsolved: the nature of criminal acts and procedure and their relation to civil law; the main factors active in the restitution of the disturbed equilibrium; the relations and the possible conflicts between the several systems of native law.
While engaged in my field-work in the Trobriands, I used always to live right among the natives, pitching my tent in the village, and being thus forcibly present at all that happened, trivial or solemn, hum-drum or dramatic. The event which I now proceed to relate happened during my first visit in the Trobriands, a few months only after I had started my field-work in the archipelago.
One day an outbreak of wailing and a great commotion told me that a death had occurred somewhere in the neighbourhood. I was informed that Kima’i, a young lad of my acquaintance, of sixteen or so, had fallen from a coco-nut palm and killed himself.
I hastened to the next village where this had occurred, only to find the whole mortuary proceedings in progress. This was my first case of death, mourning, and burial, so that in my concern with the ethnographical aspects of the ceremonial, I forgot the circumstances of the tragedy even though one or two singular facts occurred at the same time
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