Crime and Custom in Savage Society

^^NTHROPOLOGY is stiU to most la3nmen 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, couvade, cannibahsm and what not, 
have made anthropology attractive reading to many, 
a subject of curiosity rather than of serious scholar- 
ship 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 com- 
parative 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 know- 
ledge 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 weU as the leading acts of public 
life, whether these be quaint and sensational or 
important and venerable. Yet of all branches of 
anthropology, primitive jmisprudence 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 adminis- 
tration 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, Bernhoft, Kohler and the other 
writers grouped round the Zeitschrift fUr 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 dis- 
cussions upon the mentality and sociality of savages, 
still survives in the French school of Durkheim, in 
most American and German works and in some 
Enghsh writings. 

Thus handicapped by insuf&cient material and base- 
less 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-hved 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 fines 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 lacuna in modem 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.

^^I^^Y^^HEN we come to inquire why rules of conduct, 
however hard, irksome, or imwelcome, are 
obeyed ; what makes private life, economic co- 
operation, public events run so smoothly ; of what, in 
short, consist the forces of law and order in savagery — 
the answer is not easy to give, and what anthropology 
has had to say about it is fax from satisfactory. So it 
long as it could be maintained that the ' savage ' is 
reaUy savage, that he follows what little law he has 
but fitfully and loosely, the problem did not exist. 
When the question became actual, when it became plain 
that h5q)ertrophy of rules rather than lawlessness is 
characteristic of primitive life, scientific opinion 
veered round to the opposite point : the savage 
was made not only into a model of the law-abiding 
citizen, but it became an axiom that in submitting 
to all his tribal rules and fetters, he follows the 
natural trend of his spontaneous impulses ; that in 
this way he glides, so to speak, along the line of least 
resistance. 

The savage — so runs to-day’s verdict of competent 

anthropologists — ^has a deep reverence for tradition and 
custom, an automatic submission to their biddings. 
He obeys them ‘slavishly’, ‘unwittingly’, 
‘ spontaneously ’, through ‘ mental inertia ’, combined 
with the fear of public opinion or of supernatural 
punishment; or again through a ‘pervading group- 
sentiment if not group-instinct ’. Thus we find the 
following in a recent book : “ The savage is far from 
being the free and unfettered creature of Rousseau’s 
imagination. On the contrary, he is hemmed in on 
every side by the customs of his people, he is bound 
in the chains of immemorial tradition not merely in 
his social relatiohs, but in his religion, his medicine, 
in his industry, his art : in short, every aspect of his 
life ” (E. Sidney Hartland in Primitive Law, p. 138). 
With all this we might agree, except that it seems 
doubtful whether the “ chains of tradition ” are 
identical or even similar in art and in social relations, 
in industry, and in religion. But when, immediately, 
we are told that “ these fetters are accepted by him 
(the savage) as a matter of course ; he never seeks to 
break forth ” — we must enter a protest. Is it not 
contrary to human nature to accept any constraint 
as a matter of course, and does man, whether civilized 
or savage, ever carry out unpleasant, burdensome, cruel 
regulations and taboos without being compelled to ? 
And compelled by some force or motive which he cannot 
resist ? 

Yet this automatic acquiescence, this instinctive 
submission of every member of the tribe to its laws, is 
the fundamental axiom laid at the basis of the inquiry 
into primitive order and adherence to rule. Thus 
another foremost authority on the subject, the late 
Dr. Rivers, speaks in the book already mentioned of 
an " unwitting or intuitive method of regulating social 
life ”, which is, according to him, " closely connected 
with primitive conummism.” And he proceeds to tell 
us : “ Among such a people as the Melanesians there 
is a group sentiment which makes unnecessary any 
definite social machinery for the exertion of authority, 
in just the same manner as it makes possible the 
harmonious working of communal ownership, and 
insures the peaceful character of a communistic system 
of sexual relations ” {Social Organization, p. 169). 

Thus here again we are assured that ‘ unwitting ’ 
or ‘ intuitive methods ’, ‘ instinctive submission ’ and 
some mysterious ‘ group-sentiment ’ account for law, 
order, conununism and sexual promiscuity alike ! 
This sounds altogether like a Bolshevik paradise, but 
is certainly not correct in reference to Melanesian 
societies, which I know at first hand. 

A similar idea is expressed by a third writer, a 
sociologist, who has contributed more towards our 
understanding of the organization of savages from the 
point of view of mental and social evolution than 
perhaps any one living anthropologist. Professor 

Hobhouse, speaking of the tribes on a very low level 
of culture, affirms that " such societies, of course, 
have their customs, which are doubtless felt as 
binding by their members, but if we mean by law a 
body of rules enforced by an authority independent 
of personal ties of kinship and fnenddiip, such 
an institution is not compatible with their social 
organization ” [Morals in Evolution, 1915, p. 73). Here 
we have to question the phrase “ felt as binding ” 
and ask whether it does not cover and hide the real 
problem instead of solving it. Is there not, with regard 
to some rules at least, a binding mechanism, not 
perhaps enforced by any central authority, but backed 
up by real motives, interests and complex sentiments ? 
Can severe prohibitions, onerous duties, very burden- 
some and galling liabilities, be made binding by a mere 
‘ feeling ' ? We should like to know more about 
this invaluable mental attitude, but the author 
simply takes it for granted. Again, the minimum 
definition of law as the " body of rules enforced by an 
authority independent of personal ties ”, seems to me 
to be too narrow and not to lay the emphasis on the 
relevant elements. There are among the many norms 
of conduct in savage societies certain rules regarded 
as compulsory obligations of one individual or group 
towards another individual or group. The fulfilment 
of such obligations is usually rewarded according to 
the measure of its perfection, while non-compliance is 

'Wsited upon the remiss agent. Taking our stand upon 
such a comprehensive view of law and inquiring 
into the nature of the forces which make it obligatory, 
we shall he ahle to arrive at much more satisfactory 
results than if we were to discuss questions of authority, 
government and punishment. 

To take another representative opinion, that of one 
of the highest anthropological authorities in the United 
States, we find Dr. Lowie expressing a very similar 
view : “ Generally speaking, the unwritten laws of 
customary usage are obeyed far more willingly than 
our written codes, or rather they are obeyed 
spontaneously.” ^ To compare the ‘ wilhngness ' in 
obedience to law of an Australian savage with a New 
Yorker, or of a Melanesian with a nonconformist 
citizen of Glasgow, is a perilous proceeding and its 
results have to be taken very ' generally ’ indeed, 
until they lose all meaning. The fact is that no society 
can work in an efficient manner unless laws are obeyed 
‘ willingly ’ and ‘ spontaneously '. The threat of 
coercion and the fear of punishment do not touch the 
average man, whether ' savage ' or ' civilized ’, while, 
on the other hand, they are indispensable with regard 
to certain turbulent or criminal elements in either 
society. Again, there is a number of laws, taboos eind 
obligations in every human culture which weigh heavily 
on every citizen, demand great self-sacrifice, and are 
1 Primitive Society ^ Chap, on Justice p. 387, English edition. 

obeyed for moral, sentimental or matter-of-fact 
reasons, but without any ' spontaneity 

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 aU 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 com- 
munity 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 modem anthropology has so 
far completely overlooked. In the following accormt 
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 Avith 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 satis- 
facto^ 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 

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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 aU they stand for — ^may be of special interest.

'^j^’HE 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 fertUe soil and the lagoon 
teems with fish, while both afford easy means of inter- 
communication 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 super- 
ficial acquaintance with these pursuits might leave one 
with an impression of arbitrary disorder, anarchy, com- 
plete lack of system. Patient and painstaking observa- 
tions would soon reveal, however, not only that the 
natives have definite technical systems of catching 
fish and complex economic arrangements, but also that 

i8 

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 obliga- 
tion 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 repa5unent. To an observer 
who does not grasp aU 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 indis- 
criminately 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 comnaon ownership is the canoe ”, and further 
on, in reference to this statement, he speaks about " the 
great extent to which communistic sentiments concern- 
ing 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 modem joint- 
stock 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 first of all 
to fi nance 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 this they 
remain under mutual obligations to one another to 
appear each at his post, while every canoe is bound 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 the corre- 
sponding title, either of ‘ master ' or ' steersman ’, or 
‘ keeper of the nets ’, or ' watcher for fish '. His 
position and title are determined by the combined 
action of rank, age, and personal abihty. 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 realiza- 
tion of self-interest, privileges and benefits. Owner- 
ship, therefore, can be defined neither by such words as 
' communism ' nor ‘ individualism nor by reference 
to ' joint-stock company ’ system or ‘ personal enter- 
prise ’, 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 obhgations.

enter more deeply into the nature of these bind- 
ing obligations, let us follow the fishenhen 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 fisher- 
man 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 the 
respectively rarer food, there is added an artificially, 
culturally created dependence of the two districts upon 
one another. So that on the whole each community is 
very much in need of its partners. If at any time pre- 
viously these have been guilty of neglect, however, 
they know that they will be in one way or another 
severely penalized. Each community has, therefore, a 
weapon for the enforcement of its rights : reciprocity. 

This is not limited to the exchange of fish for vege- 
tables. 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 
inade the more binding by being part and parcel of a 
whole system of mutuahties.

J 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 
Symmetrie des Gesellschaftsbaus ” and the correspond- 
ing “ Symmetrie von Handlungen 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 stracture 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 ‘ phratries ' or ‘ moieties ’ and 

1 ** Die Symmetrie von Handlungen aber nennen wir das Prinzip 
der Vergeltung. Dieses liegt tief verwurzelt im menschlichen 
Empfinden — als adaquate Keaktion — und ilim kam von jeher die 
grdsste Bedeutung im sozialen Leben zu*' (Die Getneinde der 
Bdnaro, Stuttgart, 1921, p. 10). 

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 
S3mimetry 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, 
S5nnmetry 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 
axe not carried out haphazard, any tv/o 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 vrith each other. They are 
often relatives-in-law, or else sworn friends, or partners 
in the important system of ceremonial exchange called 
ktda. 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 con- 
struction 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 aU 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 aU 

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.

TT 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 utihty 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 weU 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 weU 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 semi- 
commercial transaction with definite public ceremonies 
supplies another binding force of fulfilment through 
a special ps3^hological 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 con- 
siderable latitude within which their fulfilment is 
regarded as satisfactory. The bundles of fish, the 
measures of yams, or bimches 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 safe- 
guarding forces of law.

T HAVE referred so far mainly to economic relations, 
for civil law is primarily concerned with owner- 
ship 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 arid 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 religious piety and 
fear — ^but also because the strength of her grief affords 
direct satisfaction to the deceased man’s brothers and 
maternal relatives. It is the matrihneal group of 

kindred who, according to the native theory of kinship 
and mourning, are the people really bereaved. The 
wife, though she lived with her husband, though she 
should grieve at his death, though often she really and 
sincerely does so, remains but a stranger by the rules 
of matrilineal kinship. It is her duty towards the 
surviving members of her husband’s clan, accordingly, 
to display her grief, to keep a long period of mourning 
and to carry the jaw-bone of her husband for some 
years after his death. Nor is this obligation without 
reciprocity. At the first big ceremonial distribution, 
some three days after her husband's death, she will 
receive from his kinsmen a ritual payment, and a 
substantial one, for her tears ; and at later ceremonial 
feasts she is given more payments for the subsequent 
services of mourning. It should also be kept in mind 
that to the natives mourning is but a link in the life- 
long chain of reciprocities between husband and wife 
and between their respective families. 

Plate III. 

Obligatory display of grief in Ritual Wailing.

'J^HIS brings ns to the subject of marriage, extremely 
important for the rmderstanding of native law. 
Marriage establishes not merely a bond between 
husband and wife, but it also imposes a standing 
relation of mutuality between the man and the wife’s 
family, especially her brother. A woman and her 
brother are bound to each other by characteristic and 
highly important ties of kinship. In a Trobriand 
family a female must always remain under the special 
guardianship of one man — one of her brothers, or, if 
she has none, her nearest maternal kinsman. She has 
to obey him and to fulfil a number of duties, while he 
looks after her welfare and provides for her economically 
even after she is married. 

The brother becomes the natural warden of her 
children, who therefore have to regard Mm and not 
their father as the legal head of the family. He in 
turn has to look after them, and to supply the 
household with a considerable proportion of its food. 
This is the more burdensome since marriage being 

patrilocal, the girl has moved away to her husband's 
community, so that every time at harvest there is a 
general economic chass6-crois6 all over the district. 

After the crops are taken out, the yams are classified 
and the pick of the crop from each garden is put into a 
conical heap. The main heap in each garden plot is 
always for the sister’s household. The sole purpose of 
all the skill and labour devoted to this display of food 
is the satisfaction of the gardener’s ambition. The 
whole community, nay, the whole district, will see the 
garden produce, comment upon it, criticize, or praise. 
A big heap proclaims, in the words of my informant : 
" Look what I have done for my sister and her family. 
I am a good gardener and my nearest relatives, my 
sister and her children, will never suffer for want of 
food." After a few days the heap is dismantled, the 
yams carried in baskets to the sister’s village, where 
they are put up into exactly the same shape in front of 
the yam-house of the sister’s husband ; there again 
the members of the community will see the heap and 
admire it. This whole ceremonial side of the transaction 
has a binding force which we know already. The display, 
the comparisons, the public assessment impose a 
definite psychological constraint upon the giver — 
they satisfy and reward him, when successful work 
enables him to give a generous gift, and they penalize 
and humiliate him for inefficiency, stinginess, or bad 
luck. 

Besides ambition, reciprocity prevails in this 
transaction as everywhere else ; at times, indeed, it 
steps in almost upon the heels of an act of fulfilment. 
First of aU the husband has to repay by definite 
periodical gifts every annual harvest contribution. 
Later on, when the children grow up, they will come 
directly imder the authority of their maternal rmcle ; 
the boys will have to help him, to assist him in every- 
thing, to contribute a definite quota to all the payments 
he has to make. His sister’s daughters do but little for 
him directly, but indirectly, in a matrilineal society, 
they provide him with his heirs and descendants of 
two generations below. 

Thus placing the harvest offerings within their 
sociological context, and taking a long view of the 
relationship, we see that every one of its transactions 
is justified as a link in the chain of mutualities. Yet 
taking it isolated, tom out of its setting, each 
transaction appears nonsensical, intolerably burden- 
some and sociologically meaningless, also no doubt 
' communistic ' ! What could be more economically 
absurd than this oblique distribution of garden produce, 
where every man works for his sister and has to rely 
in turn on his wife’s brother, where more time and 
energy is apparently wasted on display, on show, on 
the shifting of the goods, than on real work ? Yet a 
closer analysis shows that some of these apparently 
unnecessary actions are powerful economic incentives. 

that others supply the legal binding force, while others, 
again, are the direct result of native kinship ideas. It 
is also clear that we can understand the legal aspect 
of such relations only if we look upon them integrally 
without over-emphasizing any one hnk in the chain 
of reciprocal duties.

TN the foregoing we have seen a series of pictures 
from native life, illustrating the legal aspect of the 
marriage relationship, of co-operation in a fishing 
team,, of food barter between inland and coastal 
villages, of certaia ceremonial duties of moiaming. 
These examples were adduced with some detail, in 
order to bring out clearly the concrete working of 
what appears to me to be the real mechanism of law, 
social and psychological constraint, the actual forces, 
motives, and reasons which make men keep to their 
obligations. If space permitted it would be easy to 
bring these isolated instances into a coherent picture 
and to show that in aU social relations and in aU the 
various domains of tribal life, exactly the same legal 
mechanism can be traced, that it places the binding 
obligations in a special category and sets them apart 
from other types of customary rules. A rapid though 
comprehensive survey will have to suffice. 

To take the economic transactions first : barter 
of goods and services is carried on mostly within a 

standing partnership, or is associated with definite 
social ties or coupled with a mutuality in non-economic 
matters. Most if not all economic acts are found to 
belong to some chain of reciprocal gifts and counter- 
gifts, which in the long run balance, benefiting both 
sides equally. 

I have already given an account of the economic 
conditions in N.W. Melanesia, in “ The Primitive 
Economics of the Trobriand Islanders ” {Economic 
Journal, 1921) and in Argonauts of the Western Pacific, 
1923. Chapter vi of that volume deals with mattery 
here discussed, i.e. the forms of economic exchange. 
My ideas about primitive law were not mature at that 
time, and the facts are presented there without any 
reference to the present argument — ^their testimony 
only the more telling because of that. When, however, 
I describe a category of offerings as ‘ Pure Gifts ’ and 
place under this heading the gifts of husband to wife 
and of father to children, I am obviously committing 
a mistake. I have fallen then, in fact, into the error 
exposed above, of tearing the act out of its context, of 
not taking a sufficiently long view of the chain of 
transactions. In the same paragraph I have supplied, 
however, an implicit rectification of my mistake in 
stating that " a gift given by the father to his son is 
said [by the natives] to be a repayment for the man’s 
relationship to the mother” (p. 179). I have also 
pointed out there that the ‘ free gifts ' to the wife are 

■If. 

also based on the same idea. But the really correct 
account of the conditions — correct both from the legal 
and from the economic point of view — ^would have been 
to embrace the whole system of gifts, duties, and 
mutual benefits exchanged between the husband on 
one hand, wife, children, and wife's brother on the 
other. It would be found then in native ideas that 
the system is based on a very complex give and 
take, and that in the long run the mutual services 
balance.^ 

The real reason why all these economic obligations 
are normally kept, and kept very scrupulously, is that 
failure to comply places a man in an intolerable 
position, while slackness in fulfilment covers him with 
opprobrium. The man who would persistently disobey 
the rulings of law in his economic dealings would soon 
find himself outside the social and economic order — 
and he is perfectly well aware of it. Test cases are 
supplied nowadays, when a number of natives through 
laziness, eccentricity, or a non-conforming spirit of 
enterprise, have chosen to ignore the obligations of 

^ Compare also the apposite criticism of my expression pure 
gift’" and of all it implies by M. Marcel Mauss, in L* Annie 
Sociologique, Nouvelle S6rie, vol. i, pp. 171 sqq, I had written the 
above paragraph before I saw M, Mauss’s strictures, which sub- 
stantially agreed with my own. It is gratifying to a field- worker when 
his observations are sufi&ciently well presented to allow others to 
refute his conclusions out of his own material. It is even more 
pleasant for me to find that my maturer judgment has led me inde- 
pendently to the same results as those of my distinguished friend 
M. Mauss, 

their status and have become automatically outcasts 
and hangers-on to some white man or other. 

The honourable citizen is bound to carry out his 
duties, though his submission is not due to any instinct 
or intuitive impulse or mysterious ' group-sentiment 
but to the detailed and elaborate working of a system, 
in which every act has its own place and must be 
performed without fail. Though no native, however 
intelligent, can formulate this state of affairs in a 
general abstract manner, or present it as a sociological 
theory, yet every one is well aware of its existence and 
in each concrete case he can foresee the consequences. 

In magical and religious ceremonies almost every 
act, besides its primary purposes and effects, is also 
regarded as an obligation between groups and 
individuals, and here also there comes sooner or later an 
equivalent repayment or counter-service, stipulated by 
custom. Magic in its most important forms is a public 
institution in which the communal magician, who as a 
rule holds his office by inheritance, has to officiate on 
behalf of the whole group. Such is the case in the magic 
of gardens, fishing, war, weather, and canoe-building. 
As necessity arises, at the proper season, or in certain 
circumstances he is under an obligation to perform his 
magic, to keep the taboos, and at times also to control 
the whole enterprise. For this he is repaid by small 
offerings, immediately given, and often incorporated 
into the ritual proceedings. But the real reward lies 

in the prestige, power, and privileges which his position 
confers upon him.^ In cases of minor or occasional 
magic, such as love charms, curative rites, sorcery, 
magic of toothache and of pig-welfare, when it is 
performed on behalf of another, it has to be paid for 
substantially and the relation between client and 
professional is based on a contract defined by custom. 
From the point of view of our present argument, we 
have to register the fact that all the acts of communal 
magic are obligatory upon the performer, and that the 
obligation to carry them out goes -with the status of 
communal magician, which is hereditary in most cases 
and always is a position of power and privilege. A man 
may relinquish his position and hand it over to the next 
in succession, but once he accepts it, he has to carry 
on the work incumbent, and the community has to 
give him in return aU his dues. 

As to the acts which usually would be regarded as 
religious rather than magical — ceremonies at birth or 
marriage, rites of death and mourning, the worship of 
ghosts, spirits, or mythical personages — ^they also 
have a legal side clearly exemplified in the case of 
mortuary performances, described above. Every 

^ For further data referring to the social and legal status of the 
hereditary magician, see Chap, xvii on Magic in Argonauts of 
the Western Pacific, as well as the descriptions of and sundry 
references to canoe magic, sailing magic, and haloma magic. Compare 
also the short account of garden magic in Primitive Economics " 
{JB^conomic Journ., 1921) ; of war magic, in Man, 1920 (No. 5 of 
article) ; and of fishing magic, in Man, 1918 (No. 53 of article). 

important act of a religious nature is conceived as a 
moral obligation towards the object, the ghost, spirit, 
or power worshipped ; it also satisfies some emotional 
craving of the performer ; but besides all this it has also 
as a matter of fact its place in some social scheme, 
it is regarded by some third person or persons 
as due to them, watched and then repaid or returned 
in kind. When, for example, at the annual return 
of the departed ghosts to their village you give an 
offering to the spirit of a dead relative, you satisfy 
his feelings, and no doubt also his spiritual, appetite, 
which feeds on the spiritual substance of the meal ; 
you probably also express your own sentiment towards 
the beloved dead. But there is also a social obligation 
involved ; after the dishes have been exposed for some 
time and the spirit has finished with his spiritual share, 
the rest, none the worse it appears for ordinary con- 
sumption after its spiritual abstraction, is given to 
a friend or relation-in-law still alive, who then returns 
a similar gift later on.^ I can recall to my mind not 
one single act of a religious nature without some such 
sociological by-play more or less directly associated 
with the main religious function of the act. Its 
importance lies in the fact that it makes the act a social 
obligation, besides its being a religious duty. 

* Comp, the writer’s account of the MilamcUa, the feast of the 
annual return of the spirits, in " Baloma ; the spirits of the dead in 
the Trobriand Islands" {Journ. of the R. Anthrop. Institute, 1916). 
The food offerings in question are described on p. 378. 

I could still continue with the survey of some other 
phases of tribal life and discuss more fully the legal 
aspect of domestic relations, already exemplified above, 
or enter into the reciprocities of the big enterprises, 
and so on. But it must have become clear now that 
the detailed illustrations previously given are not 
exceptional isolated cases, but representative instances 
of what obtains in every walk of native life.

^^GAIN, recasting our whole perspective and looking 
at matters from the sociological point of view, 
i.e. taking one feature of the constitution of the 
tribe after another, instead of surveying the various 
types of their tribal activities, it would be possible to 
show that the whole structure of Trobriand society 
is founded on the principle of legal status. By this 
I mean that the claims of chief over commoners, 
husband over wife, parent over child, and vice 
versa, are not exercised arbitrarily and one-sidedly, 
but according to definite rules, and arranged into weU- 
balanced chains of reciprocal services. 

Even the chief, whose position is hereditary, based on 
highly venerable mjdhological traditions, surroimded 
with semi-religious awe, enhanced by a princely 
ceremonial of distance, abasement, and stringent 
taboos, who has a great deal of power, wealth, and 
executive means, has to conform to strict norms and is 
bound by legal fetters. When he wants to declare war, 
organize an expedition, or celebrate a festivity, he 

must issue formal summons, publicly announce his 
* will, deliberate with the notables, receive the tribute, 

services and assistance of his subjects in a ceremonial 
^ manner, and finally repay them according to a definite 

scaled It is enough to mention here what has been 
previously said about the sociological status of 
marriage, of the relations between husband and wife, 
I and of the status between relatives-in-law.® The 

whole division into totemic clans, into sub-clans of 
a local nature and into village communities, is 
characterized by a system of reciprocal services and 
duties, in which the groups play a game of give and 
’ take. 

What perhaps is most remarkable in the legal nature 
of social relations is that reciprocity, the give-and-take 
principle, reigns supreme also within the clan, nay 
within the nearest group of kinsmen. As we have seen 
already, the relation between the maternal uncle and 

1 Comp, for more detail, the various aspects of chieftainship I 
have brought out in art. cit. "Primitive Economics", op. cit. 
(Argonauts), and the articles on " War " and on " Spirits ", also 
I referred to previously. 

* Here again I must refer to some of my other publications, where 
these matters have been treated in detail, though not from the 
present point of view. See the three articles published in Psyche of 
October, 1923 (" The Psychology of Sex in Primitive Societies ") ; 
. April, 1924 {" Psycho-Analysis and Anthropology ") ; and January, 

1925 (" Complex and Myth in Mother-Right "), in which many 
aspects of sexual psychology, of the fundamental ideas and customs 
of kinship and relationship, have been described. The two latter 
articles appear uniform with this work in my Sex and Repression 
^ in Savage Society (1926). 

his nephews, the relations between brothers, nay the 
most unselfish relation, that between a man and his 
sister, are all and one founded on mutuality and the 
repayment of services. It is just this group which has 
always been accused of ' primitive communism The 
clan is often described as the only legal person, the one 
body and entity, in primitive jurisprudence. " The 
unit is not the individual, but the kin. The individual 
is but part of the kin,” are the words of Mr. Sidney Hart- 
land. This is certainly true if we take into considera- 
tion that part of social life in which the kinship group — 
totemic clan, phratry, moiety, or class — splays the 
reciprocity game against co-ordinate groups. But 
what about the perfect unity within the clan ? Here 
we are offered the universal solution of the " pervading 
group-sentiment, if not group-instinct ”, which is said 
to be specially rampant in the part of the world with 
which we are concerned, inhabited by " a people 
dominated by such a group-sentiment as actuates the 
Melanesian ” (Rivers). This, we know, is quite a 
mistaken view. Within the nearest kinship group 
rivalries, dissensions, the keenest egotism flourish and 
dominate indeed the whole trend of kinship relations. 
To this point I shall have to return presently, 
for more facts and more definitely telling ones are 
necessary finally to explode this myth of kinship- 
communism, of the perfect solidarity within the group 
related by direct descent, a myth recently revived by 

Dr. Rivers, and in some danger therefore of gaining 
general currency. 

Having thus shown the range of facts to which our 
argument apphes, having shown indeed that law covers 
the whole culture and the entire tribal constitution of 
these natives, let us formulate our conclusions in a 
coherent manner

A T the beginning of Section I examples were given 
of current opinions which attribute to primitive 
man an automatic obedience to law. Now with this 
assumption there are associated certain more special 
propositions which are universally current in anthro- 
pology and yet fatal to the study of primitive 
jurispmdence. 

First of aU, if the rules of custom are obeyed by 
the savage through sheer inability to break them, then 
no definition can be given of law, no distinction can be 
drawn between the rules of law, morals, manners, and 
other usages. For the only way in which we can 
classify rules of conduct is by reference to the motives 
and sanctions by which they are enforced. So that 
with the assumption of an automatic obedience to all 
custom, anthropology has to give up any attempt at 
introducing into the facts order and classification, 
which is the first task of science. 

We have seen already that Mr. Sidney Hartland 
regards the rules of art, medicine, social organization, 
industry, and what-not as hopelessly mixed up and 

Ivunped together in all savage societies, both in the 
native's own comprehension and in the reality of 
social life. He states this view emphatically on several 
occasions : "... The savage’s perception of re- 

semblances differs very much from our own. He 
sees resemblances between objects which, to our eyes, 
have not a single point in common ” Q.c. p. 139). “ For 
the savage . . . the policy of a tribe is one and indi- 
visible, . . . They [the savages] see nothing grotesque 
or incongruous in publishing in the name of God a code 
combining ritual, moral, agricultural, and medical with 
what we understand as strictly juridical prescriptions. 
. . . We may sever religion from magic, and magic 
from medicine ; the members of the community draw 
no such distinctions ” (pp. 213, 214). 

In all this Mr. Sidney Hartland gives lucid and 
moderate expression to the current views about 
" primitive prelogical mentality ”, " confused savage 
categories ”, and the general shapelessness of early 
culture. These views, however, cover but one side of 
the case, express but a half-truth — as regards law, the 
views here quoted are not correct. The savages have 
a class of obUgatory rules, not endowed with any 
mystical character, not set forth in " the name of God ”, 
not enforced by any supernatural sanction but provided 
with a purely social binding force. 

If we designate the sum total of rules, conventions, 
and patterns of behaviour as the body of custom, there 

is no doubt that the native feels a strong respect for all 
of them, has a tendency to do what others do, what 
every one approves of, and, if not drawn or driven in 
another direction by his appetites or interests, will 
follow the biddings of custom rather than any other 
course. The force of habit, the awe of traditional 
command and a sentimental attachment to it, the 
desire to satisfy public opinion — all combine to make 
custom be obeyed for its own sake. In this the 
' savages ’ do not differ from the members of any self- 
contained community with a limited horizon, whether 
this be an Eastern European ghetto, an Oxford college, 
or a Fundamentalist Middle West community. But 
love of tradition, conformism and the sway of custom 
account but to a very partial extent for obedience to 
rules among dons, savages, peasants, or Junkers. 

Limiting ourselves strictly to savages once more, 
there are among the Trobrianders a number of tradi- 
tional rules instructing the craftsman how to ply his 
trade. The inert and imcritical way in which these 
rules are obeyed is due to the general ' conformism of 
savages ’ as we might call it. But in the main these 
rules are followed because their practical utility is 
recognized by reason and testified by experience. 
Again, other injunctions of how to behave in associating 
with your friends, relatives, superiors, equals and so on, 
are obeyed because any deviation from them makes 
a man feel and look, in the eyes of others, ridiculous. 

clumsy, socially uncouth. These are the precepts of 
good manners, very developed in Melanesia and most 
strictly adhered to. There are further rules la5dng 
down the proceedings at games, sports, entertainments 
and festivities, rules which are the soul and substance 
of the amusement or pursuit and are kept because 
it is felt and recognized that any failure to ' play 
the game ’ spoils it — ^that is, when the game is 
really a game. In all this, it wiU be noted, there are 
no mental forces of inclination or of self-interest, or even 
inertia, which would run counter to any rule and make 
its fulfilment a burden. It is quite as easy to foUow 
the rule as not, and once you embark upon a sporting 
or pleasurable pursuit, you really can enjoy it only if 
you obey all its rules whether of art, manners, 
or the game. 

There are also norms pertaining to things sacred and 
important, the rules of magical rite, funerary pomp and 
such like. These are primarily backed up by super- 
natural sanctions and by the strong feeling that sacred 
matters must not be tampered with. By an equally 
strong moral force are maintained certain rules of 
personal conduct towards near relatives, members of 
the household and others towards whom strong senti- 
ments of friendship, loyalty, or devotion are felt, which 
back up the dictates of the social code. 

This brief catalogue is not an attempt at a classifica- 
tion, but is mainly meant to indicate clearly that. 

besides the rules of law, there are several other types of 
norm and traditional commandment which are backed' 
up by motives or forces, mainly psychological, in any 
case entirely different from those which are character- 
istic of law in that community. Thus, though in my 
survey attention has naturally been mainly focussed on 
the legal machinery, I was not intent on proving that all 
social rules are legal, but on the contrary, I wanted to 
show that the rules of law form but one well-defined 
category within the body of custom.

"pHE rules of law stand out from the rest in that they 
are felt and regarded as the obhgations of one 
person and the rightful claims of another. They are 
sanctioned not by a mere psychological motive, but by 
a definite social machinery of binding force, based, as we 
know, upon mutual dependence, and realized in the 
equivalent arrangement of reciprocal services, as well 
as in the combination of such claims into strands of 
multiple relationship. The ceremonial manner in 
which most transactions are carried out, which entails 
public control and. criticism, adds still more to their 
binding force. 

We may therefore finally dismiss the view that 
‘ group-sentiment ' or ‘ collective responsibility ' is 
the only or even the main force which ensures 
adhesion to custom and which makes it binding or 
legal. Esprit de corps, solidarity, pride in one’s com- 
munity and clan exist undoubtedly among the Mela- 
nesians — ^no social order could be maintained without 
them in any culture high or low. I only want to enter 
a caution against such exaggerated views as those of 
Rivers, Sidney Hartland, Durkheim, and others, which 

would make this unselfish, impersonal, unlimited group- 
loyalty the corner-stone of aU social order in primitive 
cultures. The savage is neither an extreme ' collect- 
ivist ’ nor an intransigent ' individualist ’ — ^he is, like 
man in general, a mixture of both. 

It results also from the account here given that 
primitive law does not consist exclusively or even 
chiefly of negative injunctions, nor is all savage law 
criminal law. And yet it is generally held that with 
the description of crime and punishment the subject 
of jurisprudence is exhausted as far as a savage com- 
munity is concerned. As a matter of fact the dogma of 
automatic obedience, i.e. the absolute rigidity of the 
rules of custom implies an over-emphasis of criminal 
law in primitive communities and a corresponding 
denial of the possibility of civil law. Absolutely rigid 
rules cannot be stretched or adapted to life, they need 
not be enforced — ^but they can be broken. So much 
even the believers in a primitive super-legality must 
admit. Hence crime is the only legal problem to be 
studied in primitive communities, there is no civil law 
among savages, nor any civil jurisprudence for anthro- 
pology to work out. This view has dominated com- 
parative studies of law from Sir Henry Maine to the 
most recent authorities, such as Prof. Hobhouse, 
Dr. Lowie, and Mr. Sidney Hartland. Thus we read in 
Mr. Hartland’s book that in primitive societies “ the 
core of legislation is a series of taboos ”, and that 

" almost aU early codes consist of prohibitions ” 
(Primitive Law, p. 214). And again, "the general 
belief in the certainty of supernatural punishment and 
the alienation of the sympathy of one's fellows generate 
an atmosphere of terror which is quite sufficient to 
prevent a breach of tribal customs . . (p. 8 — ^the 

italics are mine). There is no such " atmosphere of 
terror ” unless perhaps in the case of a few very excep- 
tional and sacred rules of ritual and religion, and on the 
other hand the breach of tribal customs is prevented by 
a special machinery, the study of which is the real 
field of primitive jurisprudence. 

In all this again Mr. Hartland is not alone. Steinmetz 
in his learned and competent analysis of primitive 
punishment insists on the criminal character of early 
jurisprudence, on the mechanical, rigid, almost un- 
directed and unintentional nature of the penalties in- 
flicted and on their religious basis. His views are fully 
endorsed by the great French sociologists Durkheim and 
Mauss, who add besides one more clause : that responsi- 
bility, revenge, in fact aU legal reactions are founded in 
the psychology of the group and not of the individual.^ 
Even such acute and well-informed sociologists as Prof. 
Hobhouse and Dr. Lowie, the latter acquainted at first 
hand with savages, seem to follow the trend of the 

^ Steinmetz, Ethnologische Studien zur ersten Entwickelung der 
Strafe^ 1894 ; Durkheim in VAnnde Sociologique, i. pp. 353 sqq. ; 
Mauss in Revue de VHisioire de$ Religions y 1897. 

general bias in their otherwise excellent chapters on 
justice in primitive societies. 

In our own province we have so far met with positive 
commandments only, the breach of which is penalized 
but not punished, ind the machinery of which can by 
no Procrustean methods be stretched beyond the line 
which separates civil from criminal law. If we have 
to provide the rules described in these articles with 
some modem, hence necessarily inappropriate label, 
— ^they must be called the body of ‘ civil law ’ of the 
Trobriand Islanders. 

‘ Civil law,’ the positive law governing aU the 
phases of tribal life, consists then of a body of binding 
obligations, regarded as a right by one party and 
acknowledged as a duty by the other, kept in force by 
a specific mechanism of reciprocity and publicity in- 
herent in the structure of their society. These rules of 
civil law are elastic and possess a certain latitude. 
They offer not only penalties for failure, but also 
premiums for an overdose of fulfilment. Their 
stringency is ensured through the rational appreciation 
of cause and effect by the natives, combined with a 
number of social and personal sentiments such as 
ambition, vanity, pride, desire of self-enhancement by 
display, and also attachment, friendship, devotion and 
loyalty to the kin. 

It scarcely needs to be added that ‘ law ’ and ' legal 
phenomena ’, as we have discovered, described and 

defined them in a part of Melanesia, do hot consist in 
any independent institutions. Law represents rather 
an aspect of their tribal life, one side of their structure, 
than any independent, self-contained social arrange- 
ments. Law dwells not in a special system of decrees, 
which foresee and define possible forms of non-fulfil- 
ment and provide appropriate barriers and remedies. 
Law is the specific result of the configuration of obliga- 
tions, which makes it impossible for the native to shirk 
his responsibihty without STiffering for it in the future.

' I 'HE rare quarrels which occur at times take the form 
of an exchange of public expostulation {yakala) in 
which the two parties assisted by friends and relatives 
meet, harangue one another, hturl and hurl back 
recriminations. Such htigation allows people to give 
vent to their feelings and shows the trend of pubhc 
opinion, and thus it may be of assistance in settling 
disputes. Sometimes it seems, however, only to 
harden the litigants. In no case is there any definite 
sentence pronounced by a third party, and agreement 
is but seldom reached then and there. The yakala 
therefore is a special legal arrangement, but of small 
importance and not really touching the heart of legal 
constraint. 

Some other specific legal mechanisms may also be 
mentioned here. One of them is the kaytafaku, the 
magical protection of property by means of conditional 
curses. When a man owns coco or areca palms in 
distant spots, where it is impossible to keep watch over 
them, he attaches a palm leaf to the trunk of the tree, an 
indication that a formula has been uttered, which 
automatically would bring down ailment on the thief. 

6i 

Another institution which has a legal side is the haytu- 
butabu, a form of magic performed over all the coco-nut 
trees of a community to bring about their fertility, as 
a rule in view of an approaching feast. Such magic 
entails a strict prohibition to gather the nuts or to 
partake of coco-nut, even when imported. A similar 
institution is the gwara} A pole is planted on the reef, 
and this places a taboo on any export of certain 
valuable objects, exchanged ceremonially in the kula, 
while their importation on the contrary is encouraged. 
This is a sort of moratorium, stopping all payments, 
without any interference with the receipts, which also 
aims at an accumulation of valuable objects before a 
big ceremonial distribution. Another important legal 
feature is a sort of ceremonial contract, called kayasa,^ 
Here the leader of an expedition, the master of a feast, 
or the entrepreneur in an industrial venture gives a big 
ceremonial distribution. Those who participate in it and 
benefit by the bounty are under an obhgation to assist 
the leader throughout the enterprise. 

All these institutions, kayasa, kaytapaku, and kaytu- 
butabu, entail special binding ties. But even they 
are not exclusively legal. It would be a great 

* Comp, the account of this institution in Argonauts of the Western 
Pacific (references in Index s.v. Gwara). Also descriptions in Prof. 
Seligman's ‘ ' Melanesians and in the present writer’s " The Natives 
of Mailu ” (Trans. R. Soc. of S. Australia, vol. 39), of the gola or gora 
among the Western Papuo-Melanesians. 

* Argonauts, See in Index s.v. Kayasa. 

mistake to deal -with the subject of law by a simple 
enumeration of these few arrangements, each of which 
subserves a special end and fulfils a very partial 
function. The main province of law is in the social 
mechanism, which is to be found at the bottom of all 
the real obligations and covers a very vast portion of 
their custom, though by no means all of it, as we know.

T HAVE dealt here only with one province of 
Melanesia, and the conclusions arrived at have 
naturally a limited range. These conclusions, however, 
are based on facts observed by a new method and 
regarded from a new point of view, so that they might 
stimulate other observers to take up a similar line of 
study in other parts of the world. 

Let us sum up the contrast between current views on 
the subject and the facts here presented. In modem 
anthropological jurisprudence, it is universally assumed 
that aU custom is law to the savage and that 
he has no law but his custom. All custom again is 
obeyed automatically and rigidly by sheer inertia. 
There is no civil law or its equivalent in savage 
societies. The only relevant facts are the occasional 
breaches in defiance of custom — ^the crimes. There is no 
mechanism of enforcement of the primitive rules of 
conduct except the punishment of flagrant crime. 
Modem anthropology, therefore, ignores and sometimes 
even explicitly denies the existence of any social 
arrangements or of any psychological motives which 
make primitive man obey a certain class of custom for 

purely social reasons. According to Mr. Hartland and 
aE the other authorities, rehgious sanctions, super- 
natural penalties, group responsibility and solidarity, 
taboo and magic are the main elements of juris- 
prudence in savagery. 

AU these contentions are, as I have already indicated, 
either directly mistaken or .only partiaEy true, or, at 
least, they can be said to place the reality of native Ufe 
in a false perspective. Perhaps there is no further need 
to argue that no man, however ‘ savage ’ or ' primitive ' 
wiE instinctively act against his instincts, or unwittingly 
obey a rule which he feels incEned cunningly to 
evade or wEfuEy to defy ; or that he wiE not spon- 
taneously act in a manner contrary to aE his appetites 
and inclinations. The fundamental fimction of law is 
to curb certain natural propensities, to hem in and 
control human instincts and to impose a non-spon- 
taneous, compulsory behaviour — ^in other words, to 
ensure a type of co-operation which is based on mutual 
concessions and sacrifices for a common end. A new 
force, different from the iimate, spontaneous endow- 
ment must be present to perform this task. 

In order to make this negative criticism conclusive, 
we have given a positive statement of a concrete case 
to present the facts of primitive law as it reaEy is, 
and have shown in what the compiEsory nature of 
primitive legal rules consists. 

The Melanesian of the region here treated has - 

unquestionably the greatest respect for his tribal 
custom and tradition as such. Thus much may be 
conceded to the old views at the outset. All the rules of 
' his tribe, trivial or important, pleasant or irksome, 

moral or utilitarian, are regarded by him with reverence 
and felt to be obligatory. But the force of custom, the 
glamour of tradition, if it stood alone, would not be 
enough to counteract the temptations of appetite or 
lust or the dictates of self-interest. The mere sanction of 
tradition — ^the conformism and conservatism of the 
‘ savage ’ — operates often and operates alone in 
enforcing manners, customary usage, private and public 
> behaviour in aU cases where some rules are necessary 

to establish the mechanism of common hfe and co- 
operation and to allow of orderly proceedings — ^but 
where there is no need to encroach on self-interest 
. and inertia or to prod into unpleasant action or thwart 
innate propensities. 

There are other rules, dictates and imperatives which 
require and possess their special tj'pe of sanction, 
besides the mere glamour of tradition. The natives in 
the part of Melanesia described have to conform, for 
example, to a very exacting type of religious ritual, 
especially at burial and in mourning. There are, again, 
• imperatives of behaviour between relations. There 

exists finally the sanction of tribal punishment, due to 
a reaction in anger and indignation of the whole com- 
f munity. By this sanction human life, property, and. 

last though not least, personal honour are safeguarded 
in a Melanesian community, as well as such institutions \ 

as chieftainship, exogamy, rank and marriage, which | 

play a paramount part in their tribal constitution. \ 

Each class of rules just enumerated is distinguishable j 

from the rest by its sanctions and by its relation to the S 

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 safe- 
guarding life, property and personality form the class : 

which might be described as ‘ criminal law ' — ^very I 

often over-emphasized by anthropologists and falsely ^ 

connected with the problem of ‘ government ’ and | 

‘ central authority ' and invariably tom out of its J 

proper context of other legal rules. For — and here we i 

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. l 

These are the rules of a Melanesian community which i 

correspond to om civil law. 

There is no religious sanction to these rules, no fear, } 

superstitious or rational, enforces them, no tribal | 

punishment visjts their breach, nor even the stigma of i 

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 natmal 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.

JT 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 apparefit 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 weU-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 hires 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 mean- 
time 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 reahty. 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 aU, 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. L^w 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 retalia- 
tion, of incest, adultery, breach of taboo or murder. 
In aU 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.^ 

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 

^ Thus Rivers speaks of a " group sentiment of the clan system 
with its accompanying communistic practices supposed to exist 
in Melanesia, and he adds that to such natives the " principle * each 
man for himself ' is beyond the reach of understanding " {Social 
Organization, p. 170). Sidney Hartland imagines that in savagery 
“ The same code in the same Bivine Name, and with equal authority, 
may make regulations for the conduct of commercial transactions 
and of the most intimate conjugal relations, as well as for a complex 
and splendid ceremonial of divine worship ** {Primitive Law, p. 214). 
Both statements are misleading. Comp, also the quotations in 
Part I, Sections I and X. 

equivalent — is extremely weU 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 obhgations. We found indeed that the 
native’s attitude towards duty and privilege is very 
much the same as in a civilized community — to the 
ektent in fact that he not only stretches but also 
at tirnes 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 break- 
downs, 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 member- 
ship in the totemic clan. The status between brother 
and sister, the relations between the sexes and most 
of their private and pubHc 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 
m3d;hology, 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 — aU 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 circum- 
stances ? 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 equihbrium ; 
the relations and the possible conflicts between the 
several systeriis 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 aU 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 com- 
motion 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 ethno- 
graphical aspects of the ceremonial, I forgot the 
circumstances of the tragedy even though one 
or two singular fadts occurred at the same time 
in the village which should have aroused my suspicions. 
I found that another youth had been severely wounded 
by some mysterious coincidence. And at the funeral 
there was obviously a general feeling of hostility 
between the village where the boy died and that into 
which his body was carried for burial. 

Only much later was I able to discover the real 
meaning of these events : the boy had committed 
suicide. The truth was that he had broken the rules 
of exogamy, the partner in his crime being his maternal 

cousin, the daughter of his mother's sister. This had 
been known and generally disapproved of, but nothing 
was done until the girl's discarded lover, who had 
wanted to marry her and who felt personally injured, 
took the initiative. This rival threa‘j:ened first to use 
black magic against the guilty youth, but this had not 
much effect. Then one evening he insulted the 
culprit in public — accusing him in the hearing of the 
whole community of incest and hurling at him certain 
expressions intolerable to a native. 

For this there was only one remedy ; only one 
means of escape remained to the unfortunate youth. 
Next morning he put on festive attire and ornamenta- 
tion, climbed a coco-nut palm and addressed the 
community, speaking from among the palm leaves 
and bidding them farewell. He explained the reasons 
for his desperate deed and also launched forth a veiled 
accusation against the man who had driven him to his 
death, upon which it became the duty of his clansmen 
to avenge him. Then he wailed aloud, as is the 
custom, jumped from a palm some sixty feet high 
and was killed on the spot. There followed a fight 
within the village in which the rival was wounded ; 
and the quarrel was repeated during the funeral. 

Now this case opened up a number of important 
lines of inquiry. I was here in the presence of a 
pronounced crime : the breach of totemic clan 
exogamy. The exogamous prohibition is one of the 

corner-stones of totemism, mother-right, and the 
classificatory system of kinship. AU females of his 
clan are called sisters by a man and forbidden as such. 
It is an axiom of Anthropology that nothing arouses 
a greater horror than the breach of this prohibition, 
and that besides a strong reaction of public opinion, 
there are also supernatural punishments, which visit 
this crime. Nor is this axiom devoid of foundation 
in fact. If you were to inquire into the matter among 
the Trobrianders, you would find that all statements 
confirm the axiom, that the natives show horror 
at the idea of violating the rules of exogamy and that 
they believe that sores, disease and even death might 
follow clan incest. This is the ideal of native law, 
and in moral matters it is easy and pleasant strictly 
to adhere to the ideal — ^when judging the conduct of 
others or expressing an opinion about conduct in 
general. 

When it comes to the application of morality 
and ideals to real life, however, things take on a 
different complexion. In the case described it was 
obvious that the facts would not tally with the ideal 
of conduct. Public opinion was neither outraged 
by the knowledge of the crime to any extent, nor did 
it react directly— ^it had to be mobilized by a public 
statement of the ctime and by insults being 'hurled 
at the culprit by an interested party. Even then 
he had to carry out the punishment himself. The 

8o 

‘ group-reaction ’ and the ‘ supernatural sanction ’ 
were not therefore the active principles. Probing 
further into the matter and collecting concrete 
information, I found that the breach of exogamy — 
as regards intercourse and not marriage — is by no 
means a rare occurrence, and public opinion is lenient, 
though decidedly hypocritical. If the affair is carried 
on sub rosa with a certain amount of decoruin, and if 
no one in particular stirs up trouble — ' pubhc opinion ’ 
win gossip, but not demand any harsh punishment. 
If, on the contrary, scandal breaks out — every one 
turns against the guilty pair and by ostracism and 
insults one or the other may be driven to suicide. 

As regards the supernatural sanction, this case led 
me to an interesting and important discovery. I 
learned that there is a perfectly well established 
remedy against any pathological consequences of this 
trespass, a remedy considered practically infallible, 
if properly executed. That is to say the natives possess 
a system of magic consisting of spells and rites 
performed over water, herbs, and stones, which when 
correctly carried out, is completely efl&cient in undoing 
the bad results of clan incest. 

That was the first time in my field-work that I came 
across what could be called a well-established system 
of evasion and that in the case of one of the most 
fundamental laws of the tribe. Later on I discovered 
that such parasitic growths upon the main branches 

8i 

of tribal order exist in several other cases, besides the 
counteraction of incest. The importance of this fact 
is obvious. It shows clearly that a supernatural 
sanction need not safeguard a rule of conduct with an 
automatic effect. Against magical influence there 
may be counter-magic. It is no doubt better not to 
run the risk — ^the counter-magic may have been 
imperfectly learned or faultily performed — ^but the 
risk is not great. The supernatural sanction shows 
then a considerable elasticity, in conjunction with 
a suitable antidote. 

This methodical antidote teaches us another lesson. 
In a community where laws are not only occasionally 
broken, but systematically circumvented by well- 
established methods, there can be no question of 
a ‘ spontaneous ’ obedience to law, of slavish adherence 
to tradition. For this tradition teaches man 
surreptitiously how to evade some of its sterner 
commands — and you cannot be spontaneously pushed 
forwards and pulled back at the same time ! 

Magic to undo the consequences of clan incest is 
perhaps the most definite instance of methodical 
evasion of law, but there are other cases besides. 
Thus a system of magic to estrange the afiections 
of a woman from her husband and to induce her to 
commit adultery is a traditional way of flouting 
the institution of marriage and the prohibition of 
adultery. To a slightly different category perhaps 

belong the various forms of deleterious and malicious 
magic : to destroy the crops, to thwart a fisherman, 
to drive the pigs into the jungle, to blight bananas, 
coco-nuts or areca palms, to spoil a feast or a Kula 
expedition. Such magic, being levelled at established 
institutions and important pursuits, is really an 
instrument of crime, supplied by tradition. As such 
it is a department of tradition, which works against 
law and is directly in conflict with it, since law in 
various forms safeguards these pursuits and institu- 
tions. The case of sorcery, which is a special and very 
important form of black magic, will be discussed 
presently, as also certain non-magical systems of 
evasion of tribal law. 

The law of exogamy, the prohibition of marriage 
and intercourse within the clan is often quoted as 
one of the most rigid and wholesale commandments 
of primitive law, in that it forbids sexual relations 
within the clan with the same stringency, regardless 
of the degree of kinship between the two people con- 
cerned. The unity of the clan and the reality of the 
' classificatory system of relationship ' are — ^it is urged 
— ^most fully vindicated in the taboo of clan incest. 
It lumps together aU the men and all the women of 
the clan as ' brothers ' and ' sisters ' to each other 
and debars them absolutely from sexual intimacy. 
A careful analysis of the relevant facts in the 
Trobriands completely disposes of this vie\V'. Ft is 

again, one of these figments of native tradition, taken 
over at its face value by anthropology and bodily 
incorporated into its teacliings.’- In the Trobriands, 
the breach of exogamy is regarded quite differently 
according to whether the guilty pair are closely related 
or whether they are only united by bonds of common 
clanship. Incest with a sister is to the natives an 
unspeakable, almost unthinkable crime — which again 
does not mean that it is never committed. The breach 
in the case of a matrilineal first cousin is a very serious 
offence, and it can have, as we have seen, tragic conse- 
quences. As kinship recedes, the stringency lessens 
and, when committed with one who merely belongs to 
the same clan, the breach of exogamy is but a venial 
offence, easily condoned. Thus, as regards this pro- 
hibition, the females of his clan are to a man not one 
compact group, not one homogeneous ' clan ’, but a 
well-differentiated set of individuals, each standing in a 
special relation, according to her place in his genealogy. 

1 To give an illustration, reversing the role of savage and civilized, 
of ethnographer and informant : many of my Melanesian friends, 
taking at its face value the doctrine of ^ brotherly love ' preached 
by Christian -Missionaries and the taboo on warfare and killing 
preached and promulgated by Government officials, were unable to 
reconcile the stories about the Great War, reaching — through 
planters, traders, overseers, plantation hands — the remotest 
Melanesian or Papuan village. They were really puzzled at hearing 
that in one day white men were wiping out as many of tlieir own 
kind as would make up several of the biggest Melanesian tribes. 
They forcibly concluded that the White Man was a tremendous 
liar, but they were not certain at which end the lie lay — ^whether 
in the moral pretence or in his bragging about war achievements. 

From the point of view of the native libertine, 
smasova (the breach of exogamy) is indeed a specially 
interesting and spicy form of erotic experience. Most 
of my informants would not only admit but actually 
did boast about having committed this offence or that of 
adultery (kaylasi ) ; and I have many concrete, well- 
attested cases on record. 

So far I have spoken of intercourse. Marriage 
within the same clan is a much more serious affair. 
Nowadays even, with the general relaxation of the 
rigour of traditional law, there are only some two or 
three cases of marriage within the clan in existence, the 
most notorious being that of Modulabu, headman of the 
large village of Obweria, with Ipwaygana, a renowned 
witch, who is also suspected of intercourse with the 
tauva’u, supernatural evil spirits who bring disease. 
Both of these people belong to the Malasi clan. It is 
remarkable that this clan is traditionally associated 
with incest. There is a mydh of brother and sister 
incest, which is the source of love magic, and this 
happened in the Malasi dan. The most notorious case 
of brother-sister incest of recent times also occurred in 
this clan.* Thus the relation of actual life to the ideal 
state of affairs, as mirrored in traditional morals and 
law, is very instructive. 

^ For an ampler account of this subject, see the writer's article 
on '* Complex and Myth, in Mother-right ", Psyche, voL v. No. 3, 
.Jan., 1925; reprinted in op. cit.. Sex and depression in Savage 
Society, uniform with this work.

F. the preceding section I. have described a case of 
breach of tribal law and discussed the nature of 
criminal tendencies as well as of the forces which set 
about to restore order and tribal equilibrium as soon as 
it has been upset. 

We touched in our account upon two incidents — 
the use of sorcery as means of coercion and the practice 
of suidde as expiation and challenge. A more detailed 
discussion must now be devoted to these two subjects. 
Sorcery is practised in the Trobriands by a limited 
number of speciahsts — as a rule men of outstanding 
intelligence and personality, who acquire the art by 
learning a numbd of spells and submitting to certain 
conditions. They exercise their power on their own 
behalf, and also professionally for a fee. Since the 
behef in sorcery is deeply rooted and every serious 
sickness and death is attributed to black magic, the 
sorcerer is held in great awe, and, at first sight, his 
position lends itself inevitably to abuse and blackmail. 
It has been in fact frequently afi&rmed that sorcery is 
the main criminal agency, as regards, Melanesia and 

elsewhere. Speaking of the region I know from 
personal experience, N.W. Melanesia, this view repre- 
sents one side of the picture. Sorcery gives a man 
power, wealth, and influence ; and this he uses to 
further his own ends, but the very fact that he has 
much to lose and little to gain by flagrant abuses makes 
him as a rule very moderate. The chief, the notables, 
and the other sorcerers watch over him carefully ; 
moreover not infrequently one sorcerer is believed to 
be put away by another on behalf of a chief and by the 
chiefs orders. 

As regards his services, sold professionally, those in 
power — chiefs, men of rank and wealth — ^have again 
the first claim on him. When appealed to by lesser 
people, the sorcerer would not lend himself to unjust 
or fantastic requests. He is too rich and big a man to 
do anything outade the law and he can afford to be 
honest and just. When a real injustice or a thoroughly 
unlawful act is to be punished on the other hand, the 
sorcerer feels the weight of public opinion with him 
and he is ready to champion a good cause and to receive 
his full fee. In such cases also the victim, on learning 
that a sorcerer is at work against him, may quail 
and make amends or come to an equitable arrangement. 
Thus ordinarily, black magic acts as a genuine legal 
force, for it is used in carrying out the rules of tribal 
law, it prevents the use of violence and restores 
equilibrium. 

An interesting denouement, illustrating the legal 
aspect of sorcery, is furnished by the custom of finding 
out the reasons for which a man has been killed by 
witchcraft. This is achieved by the correct interpreta- 
tion of certain marks dr symptoms to be seen on the 
exhumed body. Some 12 to 24 hours after the pre- 
liminary burial, at the first subsequent sunset, the 
grave is opened, the body washed, anointed and 
examined. The custom has been forbidden by Govern- 
ment Orders — ^it is ‘ disgusting ’ to the white man, 
who anyhow has no opportunity nor any business to 
be there— but it is still surreptitiously practised in 
remoter villages. I have assisted several times at an 
exhumation and once, when it was done somewhat 
earlier, before the sun had set, I was able to obtain 
photographs. The proceedings are highly dramatic. 
A throng presses round the grave, some people rapidly 
remove the earth arnid loud wailing, others intone 
magical speUs against mulukwami (corpse-devouring 
and man-killing flying witches) and spit over all those 
present with chewed ginger. As they come nearer the 
bundle of mats enshrouding the corpse, they wail and 
chant louder and louder, until the body is uncovered 
amid an outburst of screams and the throng sweep 
and press nearer. All urge forward to see it, wooden 
platters with coco-nut cream are given to those nearest 
to wash the body with, ornaments are taken off the 
corpse, it is rapidly washed, wrapped up again and 

buried. During the time it is out the marks have to 
be registered. It is not a formal affair and differences 
of opinion are frequent. Often there are no clear 
marks and stUl more often people cannot agree in their 
verdict. 

But there are marks [hala wahu) about which there 
can be no doubt, which unequivocally indicate a habit, 
propensity or characteristic of the dead one, which had 
provoked the hostility of some one who had then 
commissioned a sorcerer to kill the victim. If the body 
shows scratches, especially on the shoulder, similar to 
kimali, the erotic scratches impressed during sexual 
dalliance, this means that deceased has been guilty 
of adultery or has been too successful with women, to 
the annoyance of a chief, man of power, or a sorcerer. 
This frequent cause of death produces also other 
S5nnptoms ; the exhumed body is found with the 
legs apart ; or with the mouth pursed, as if to emit 
the smacking sound used to call a desired person 
to a secret tryst. Or again the body is found swarming 
with lice, since lousing one another is a favourite tender 
occupation of lovers. Sometimes certain S5mptoms 
appear before death ; the other day a dying man was 
observed to move his arm to and fro in a beckoning 
gesture, and lo 1 after his body was exhxuned there 
were kimali marks on the shoulders. Again in another 
concrete case, the dying man was heard to emit a 
smacking sound, and later on at exhumation he 

swarmed with Hce. It had been notorious that this 
man had allowed himself to be loused in public by 
some of the wives of Numakala, one of the former 
paramount chiefs of Kiriwina — and he had been 
obviously punished by high order. 

When signs are discovered which suggest decoration, 
face painting or certain dancing ornamentations, or 
when the corpse’s hand trembles, as does the master- 
dancer’s in wielding the kaydebu (dancing shield) or 
the iisila (bunch of pandanus leaves) — ^his personal 
beauty or those achievements which gain favour with 
the fair sex had set sorcery against the defunct Don 
Juan. Red, black and white hues on the skin, patterns 
suggestive of the designs on a noble’s house and 
store, swellings like the beams of a rich yam-house — 
signify that the dead one indulged in too ambitious 
decorations of his hut or store, and thus aroused the 
chief’s resentment. Taro-shaped tumours or an 
inordinate craving for this vegetable shortly before 
death indicate that deceased had too splendid taro- 
gardens or did not pay sufficient tribute of this com- 
modity to the chief. Bananas, coco-nuts, sugar-cane 
produce mut'atis mutandis similar effects, while betel- 
nut colours the mouth of the corpse red. If the body 
is found foaming at the mouth, it shows that the man 
was too much addicted to opulent and ostentatious 
eating or bragging about food. A loose skin, peeling 
off in folds means in particular abuse of pork diet or 

dishonest dealing in the stewardship of pigs, which 
are the chief's monopoly and only given into the care 
of lesser men. The chief also resents it when a man has 
not kept to the ceremonial and not bent before him 
low enough ; such a man will be found doubled up 
in his grave. Putrid matter flowing in strings out of 
the nostrils represents, in this post-mortem sorcery 
code, the valuable necklaces of sheU-discs and thus too 
great a success in the Kula trade ; while circular 
swellings on the arms indicate the same through the 
means of mwali (armshells). Finally, a man killed for 
the reason that he is a sorcerer himself, produces, 
besides the normal spirit {haloma), also a material 
ghost {kou$i)j which spooks round the grave and plays 
various pranks.^ The body of a sorcerer is also often 
found disarranged, distorted in the grave. 

I have obtained this list by discussing concrete 
cases and noting symptoms actually registered. It is 
very important to realize that frequently, I should say 
in most cases, no signs are found on the body or there 
is no agreement about them. Needless to say, a sick 
man always suspects, in fact thinks he knows who is 
the sorcerer guilty of his ailment, on whose behalf 
he acts and for what reason. So that the ' finding ' 

^ Compare the article on ‘ Baloma ' in the Journal of the Royal 
Anthrop, Inst., 1916, whcfe I describe the beliefs in the two surviving 
principles in detail, without mentioning that the kousi is 
found exclusively in the case of a sorcerer. This I found out 
during my third expedition to New Guinea. 

of a mark has aU the characters of an a posteriori 
verification of what is already known. In this light, 
the above list, which includes the ‘ causes of death ’ 
openly discussed and readily found, receives a special 
significance : it shows us which offences are not 
altogether considered dishonourable or contemptible, 
and also those which are not too burdensome on the 
survivors. In fact sexual success, beauty, skill in 
dancing, ambition for wealth and recklessness in display 
and in the enjoyment of worldly goods, too much power 
by sorcery — these are enviable failings or sins, 
dangerous, since they arouse the jealousy of the mighty, 
but surrounding the culprit with a halo of glory. On 
the other hand, since almost all these offences are 
resented by the chief of the district, rightly resented at 
that and legally punished, the survivors are relieved of 
the burdensome duty of vendetta. 

The point of real importance in our argument, how- 
ever, is that all these standard symptoms show us how 
much resented is any prominence, any excess of 
qualities or possessions not warranted by social position, 
any outstanding personal achievement or virtue not 
associated with rank or power. These things are 
punishable and the one who watches over the 
mediocrity of others is the chief, whose essential 
privilege and duty to tradition is to enforce the golden 
mean upon others. The chief, however, cannot use direct 
bodily violence in such matters, when only a suspicion 

or a shade of doubt or a, tendency tell aigainst the 
delinquent. The proper legal means for him is to resort 
to sorcery and be it remembered he has to pay for it 
out of his private purse. He was allowed to use violence 
(i.e. before white man’s ‘ orders ’ came in), to punish 
any direct breach of etiquette or ceremonial as well as 
flagrant offences, such as adultery with any of his wives, 
theft of his private possessions or any personal insult. 
A man who would dare to place himself above the chief’s 
head, to touch that tabooed part of his neck or 
shoulders, to use certain filthy expressions in hispresence, 
to commit such breach of etiquette as sexually to allude 
to his sister — would have been immediately speared by 
one of the chief’s armed attendants. This applies in 
full stringency to the paramount chief of Kiriwina 
only. Cases are on record in which by an accident a 
man offended the chief, and had to fly for his hfe. A 
recent case is that of a man who during warfare from 
the opposite camp had hurled an insult at the chief. 
This man was actually killed after peace had been 
concluded, and his death was regarded as a just 
retribution for his offence and no vendetta followed. 

We can see thus that in many, in fact in most 
cases, black magic is regarded as the chiefs principal 
instrument in the enforcement of his exclusive 
privileges and prerogatives. Such cases pass, of course, 
imperceptibly into actual oppression and crass injustice, 
of which I could mention also a number of concrete 

instances. Even then, since it invariably ranges itself 
on the side of the powerful, wealthy, and influential, 
sorcery remains a support of vested interest ; hence in 
the long run, of law and order. It is always a con- 
servative force, and it fximishes really the main source 
of the wholesome fear of punishment and retribution 
indispensable in any orderly society. There is hardly 
anything more pernicious, therefore, in the many 
European ways of interference with savage peoples, 
than the bitter animosity with which Missionary, 
Planter, and Official alike pmsue the sorcerer.^ The 
rash, haphazard, unscientific application of our morals, 
laws, and customs to native societies, and the 
destruction of native law, quasi-legal machinery and 
instruments of power leads only to anarchy and moral 
atrophy and in the long run to the extinction of culture 
and race. 

Sorcery, in fine, is neither exclusively a method of 
administering justice, nor a form of criminal practice. 
It can be used both ways, though it is never employed 
in direct opposition to law, however often it might be 
used to conjmit wrongs against a weaker man on behalf 
of a more powerful. In whatever way it works, it is a 
way of emphasizing the status quo, a method of 

^ The sorcerer, who stands for conservatism, the old tribal 
order, the old beliefs and apportionment of power, naturally resents 
the innovators and the destroyers of his Weltanschauung. He is 
as a rule the natural enemy of the white man, who therefore hates 
him. 

expressing the traditional inequalities and of counter- 
acting the formation of any new ones. Since con- 
servatism is the most important trend in a primitive 
society, sorcery on the whole is a beneficent agency, of 
enormous value for early culture. 

These considerations show clearly how difficult it 
is to draw a line between the quasi-legal and quasi- 
criminal applications of sorcery. The ‘ criminal ' 
aspect of law in savage communities is perhaps even 
vaguer than the ‘ civil ’ one, the idea of ' justice ' in 
our sense hardly applicable and the means of restoring 
a disturbed tribal equilibrium slow and cumbersome. 

Having learnt something about Trobriand 
criminology from the study of sorcery, let us now pass 
to suicide. Though by no means a purely juridical 
institution, suicide possesses incidentally a distinct 
legal aspect. It is practised by two serious methods 
lo’u (jumping off a palm top) and the taking of 
irremediable poison from the gall bladder of a globe- 
fish {soka) ; and by the milder method of partaking 
of some of the vegetable poison tuva, used for stunning 
fish. A generous dose of emetic restores to life one 
poisoned by tuva, which is therefore used in lovers’ 
quarrels, matrimonial differences, and similar cases, 
of which several occurred during my stay in the 
Trobriands, none fatal. 

The two fatal forms of suicide are used as means of 
escape from situations without an issue and the 

underlying mental attitude is somewhat complex, 
embracing the desire of self-punishment, revenge, 
re-habilitation, and sentimental grievance. A number 
of concrete cases briefly described will illustrate best 
the psychology of suicide. 

A case somewhat similar to that of Kima’i, described 
above, was that of a girl, Bomawaku, who was in love 
with a youth of her own clan and had an official and 
acceptable suitor, for whom she did not care. She lived 
in her hukumatula (unmarried peoples’ dormitory), 
built for her by her father and received there her 
unlawful lover. Her suitor discovered this, insulted her 
in public, upon which she put on festive dress and 
ornamentation, wailed from the palm top, and jumped 
off. This is an old story, told me by an eye-witness, 
in reminiscence of the Kima’i event. The girl had also 
sought an escape from an intolerable impasse, into 
which her passion and the traditional prohibitions had 
placed her. But the immediate and the real cause of 
the suicide was the moment of insult. If not for that, 
the deeper but less poignant conflict between love and 
taboo would never have led to a rash act. 

Mwakenuwa of Liluta, a man of high rank, great 
magical powers, and outstanding personality, whose 
fame has reached down to our times across a couple 
of generations, had among other wives one Isowa’i, 
to whom he was very attached. He used to quarrel 
with her sometimes and one day in the course of a 

violent dissention he insulted her by one of the worst 
formulae {kwoy lumuta) which, especially from husband 
to wife, is regarded as unbearable.^ Isowa’i acted up 
to the traditional idea of honour and committed suicide 
on the spot by lo’u (jumping off a palm). Next day, 
while the wailing for Isowa’i was in progress, 
Mwakenuwa followed her and his corpse was placed 
beside hers to be bewailed together. Here it was rather 
a matter of passion than of law. But the case well shows 
how strongly the traditional feeling and sense of honour 
was averse to any excess, to any transgression of the 
even calm tone. It shows also how strongly the survivor 
could be moved by the self-inflicted fate of the one 
who had taken her life. 

A similar case occurred some time ago, in which the 
husband accused his wife of adultery, upon which she 
jumped off a palm and he followed her. Another event 
of more recent date, was the suicide by poisoning of 
Isakapu of Sinaketa, accused by her husband of 
adultery. Bogonela, a wife of the chief Kouta’uya of 
Sinaketa, discovered guilty of misconduct during his 
absence by a fellow wife, committed suicide on the spot. 
A few years ago in Sinaketa a man pestered by one of 
his wives, who accused him of adultery and other 
transgressions, committed suicide by poisoning. 

^ For an account and analysis of abuse and obscene expressions, 
cf. op. cit.. Sex and Repression in Savage Society or the writer’s article 
in Psyche, v. 3, 1925. 

CRIME AND punishment 

Bolubese, wife of one of the previous paramount 
chiefs of Kiriwina, ran away from her husband to her 
own village, and threatened by her own kinsmen 
(maternal imcle and brothers) to be sent back by force, 
killed herself by lo'u. There came to my notice a 
number of sinailar cases, illustrating the tensions 
between husband and wife, between lovers, between 
kinsmen. 

Two motives must be registered in the psychology of 
suicide : first, there is always some sin, crime or 
passionate outburst to expiate, whether a breach of 
exogamous rules, or adultery, or an unjust injury 
done, or an attempt to escape one’s obhgations; 
secondly, there is a protest against those who have 
brought this trespass to light, insulted the culprit 
in public, forced him into an unbearable situation. 
One of these two motives may be at times more 
prominent than the other, but as a rule there is 
a mixture of both in equal proportions. The person 
publicly accused admits his or her guilt, takes all the 
consequences, carries out the punishment upon his 
own person, but at the same time declares that he has 
been badly treated, appeals to the sentiment of those 
who have driven him to the extreme if they are his 
friends or relations, or if they are his enemies appeals 
to the solidarity of his kinsmen, asking them to carry 
on a vendetta (iugwa). 

Suicide is certainly not a means of administering 

justice, but it affords the accused and oppressed one-^ 
whether he be guilty or innocent — a means of escape 
and rehabilitation. It looms large in the psychology 
of the natives, is a permanent damper on any violence 
of language or behaviour, on any deviation from custom 
or tradition, which might hurt or offend another. 
Thus suicide, like sorcery, is a means of keeping the 
natives to the strict observance of the law, a means of 
preventing people from extreme and unusual types 
of behaviour. Both are pronounced conservative 
influences and as such are strong supports of law and 
order. 

What have we learned from the facts of crime 
ajid its punishment recorded in this and the fore- 
going chapters ? We have found that the principles 
according to which crime is punished are very vague, 
that the methods of carrying out retribution are fitful, 
governed by chance and personal passion rather than 
by any system of fixed institutions. The most 
important methods, in fact, are a bye-product of non- 
legal institutions, customs, arrangements and events 
such as sorcery and suicide, the power of the chief, 
magic, the supernatural consequences of taboo and 
personal acts of vindictiveness. These institutions and 
usages, far from being legal in their main function, only 
very partially and imperfectly subserve the end of 
maintaining and enforcing the biddings of tradition. 
We have not found any arrangement or usage which 

could be classed as a form of ' administration of 
justice according to a code and by fixed methods. 
All the legally effective institutions we found are rather 
means of cutting short an illegal or intolerable state of 
affairs, of restoring the equilibrium in social life and 
of giving Vent to the feelings of oppression and injustice 
felt by individuals. Crime in the Trobriand society 
can be but vaguely defined — it is sometimes an outburst 
of passion, sometimes the breach of a definite taboo, 
sometimes an attempt on person or property (murder, 
theft, assault), sometimes an indulgence in too high 
ambitions or wealth, not sanctioned by tradition, in 
conflict with the prerogatives of the chief or some 
notable. We have also found that the most definite 
prohibitions are elastic, since there exist methodical 
systems of evasion. 

I shall now proceed to the discussion of instances in 
which law is not broken by an act of definitely illegal 
nature, but where it is confronted by a system of 
legalized usage, almost as strong as traditional law 
itself.

jpRIMITiVE law is not a homogeneous, perfectly 
unified body of rules, based upon one principle 
developed into a consistent system. So much we know 
already from our previous survey of legal facts in the 
Trobriand Islands. The law of these natives consists 
on the contrary of a nnmber of more or less independent 
systems, only partially adjusted to one another. Each 
of these—matriarchy, father-right, the law of marriage, 
the prerogatives and duties of a chief and so on — has 
a certain field completely its own, but it can also 
trespass beyond its legitimate boundaries. This results 
in a state of tense equilibrium with an occasional 
outbreak. The study of the mechanism of such conflicts 
between legal principles, whether overt or masked, is 
extremely instructive and it reveals to us the very 
nature of the social fabric in a primitive tribe. I shall 
therefore proceed now to the description of one 
or two occurrences and then to their analysis. 

I shall describe first a dramatic event which 
illustrates the conflict between the main principle of 
law. Mother-right, and one of the strongest sentiments, 
paternal love, rotmd which there cluster many usages. 

tolerated by custom, though in reality working against 
the law. 

The two principles Mother-right and Father-love 
are focussed most sharply in the relation of a man to 
his sister’s son and to hi&own son respectively. His 
matrilineal nephew is his nearest kinsman and the legal 
heir to all his dignities and offices. His own son on the 
other hand is not regarded as a kinsman ; legally he is 
not related to his father, and the only bond is the 
sociological status of marriage with the mother.^ 

Yet in the reality of actual life the father is much 
more attached to his own son than to his nephew. 
Between father and son there obtains invariably friend- 
ship and personal attachment; between uncle and 
nephew not infrequently the ideal of perfect solidarity 
is marred by the rivalries and suspicions inherent in 
any relationship of succession. 

Thus the powerful legal system of Mother-right is 
associated with a rather weak sentiment, wh i le Father- 
love, much less important in law, is backed by a strong 
personal feeling. In the case of a chief whose power is 
considerable, the personal influence outweighs the 
ruling of the law and the position of the son is as strong 
as that of the nephew. 

That was the case in the capital village of 
Omarakana, the residence of the principal chief, whose 

^ Cf. The Father in Primitive Psychology (1926), originally 
published in Psyche, vol. iv. No. 2. 

power extends over the whole district, whose influence 
reaches many archipelagoes, and whose fame is spread 
all over the eastern end of New Guinea. I soon found 
out that there was a standing feud between his sons 
and nephews, a feud which assumed a really acute form 
in the ever recurrent quarrels between his favourite 
son Namwana Guya’u and his second eldest nephew 
Mitakata. 

The final outbreak came when the chief’s son 
inflicted a serious injury on the nephew in a 
litigation before the resident government official of 
the district. Mitakata, the nephew, was in fact con- 
victed and put to prison for a month or so. 

When the news of this reached the village, the short 
exultation among the partisans of Namwana Guya'u 
was followed by a panic, for everyone felt that things 
had come to a crisis. The chief shut himself up in his 
personal hut, full of evil forebodings of the con- 
sequences for his favourite, who was felt to have acted 
rashly and in outrage of tribal law and feeling. The 
kinsmen of the imprisoned young heir to chieftainship 
were boiling with suppressed anger and indignation. 
As night fell, the subdued village settled down to a 
silent supper, each family over its solitary meal. There 
was nobody on the central place — ^Namwana Guya’u was 
not to be seen, the chief To'uluwa hid in his hut, most 
of his wives and their families also remained indoors. 
Suddenly a loud voice rang out across the silent village. 

Bagido’u, the heir apparent, and eldest brother of the 
imprisoned man, standing before his hut, spoke out, 
addressing the offender of his family : — 

" Namwana Guya’u, you are a cause of trouble. We, 
the Tabalu of Omarakana, allowed you to stay here, to 
live among us. You had plenty of food in Omarakana, 
you ate of our food, you partook of the pigs brought to 
us as a tribute and of the fish. You sailed in our 
canoe. You built a hut on our soil. Now you 
have done us harm. You have told lies. Mitakata is 
in prison. We do not want you to stay here. This 
is our village ! You are a stranger here. Go away ! 
We chase you away ! We chase you out of 
Omarakana.” 

These words were uttered in a loud piercing voice, 
trembling with strong emotion, each short sentence 
spoken after a pause, each like an individual missile, 
hurled across the empty space to the hut where 
Namwana Guya’u sat brooding. After that the younger 
sister of Mitakata also arose and spoke, and then a 
young man, one of the maternal nephews. Their words 
were almost the same as in the first speech, the burden 
being the formula of chasing away, the yoba. The 
speeches were received in deep silence. Nothing stirred 
in the village. But, before the night was over, Namwana 
Guya'u had left Omarakana for ever. He had gone over 
and settled in his own village, in Osapola the village 
whence his mother came, a few miles distant. For weeks 

Ms mother and sister wailed for him with the loud 
lamentations of mourning for the dead. The chief 
remained for three days in his hut, and when he came 
out looked older and broken up by grief. All his 
personal interest and affection were on the side of his 
favourite son, of course. Yet he could do notMng 
to help Mm. His kinsmen had acted in complete 
accordance with their rights and, according to tribal 
law, he could not possibly dissociate himself from them. 
No power could change the decree of exile. Once the 
' Go away ' — {bukula), ‘ we chase thee away ’ — 
(kayahaim ) , were pronoimced, the man had to go. These 
words, very rarely uttered in dead earnest, have a 
binding force and almost ritual power when pronounced 
by the citizens of a place against a resident outsider. A 
man who would try to brave the dreadful insult 
involved in them and remain in spite of them, would be 
dishonoured for ever. In fact, an3dhing but immediate 
compliance with a ritual request is unthinkable for a 
Trobriand Islander. 

The cMef's resentment against Ms kinsmen was deep 
and lasting. At first he would not even speak to them. 
For a year or so, not one of them dared to ask to be 
taken on overseas expeditions by Mm, although they 
were fully entitled to this privilege. Two years later 
in 1917, when I returned to the Trobriands, Namwana 
Guya’u was still resident in the other village and keeping 
aloof from Ms father's kinsmen, though he frequently 

Plate VI. 

A Ceremonial Act of the Kula before the Chief’s personal hut at Omarakana. 
The Ethnographer’s tent in the background. {See page sj.) 

If 

ft' 

paid visits to Omarakana in order to be in attendance 
on Ms father, especially when To’uluwa went abroad. 
The mother had died within a year after the expulsion. 
As the natives described it : " She wailed and wailed, 
refused to eat, and died.” The relations between 
the two main enemies were completely broken and 
Mitakata, the young chieftain who had been imprisoned, 
had sent away his wife who belonged to the same sub- 
clan as Namwana Guya’u. There was a deep rift in the 
whole social hfe of Kiriwina. 

The incident was one of the most dramatic events 
which I have ever witnessed in the Trobriands. I have 
described it at length, as it contains a clear illustration 
of Mother-right, of the power of tribal law and of the 
passions which work in spite of it. 

The case though exceptionally dramatic and telling is 
by no means anomalous. In every village where there is 
a chief of high rank, an influential notable or a powerful 
sorcerer, he favours his sons and allows them privileges, 
which are, strictly speaking, not theirs. Often this 
produces no antagonisms within the community — 
when both son and nephew are moderate and tactful. 
Kayla’i, the son of M’tabalu, the recently deceased 
chief of highest rank of Kasanai, lives on in his father's 
village, carries on most of the communal magic and 
is on excellent terms with his father’s successor. In 
the cluster of villages of Sinaketa, where there reside 
several chiefs of high rank, some of the son-favourites 

are good friends with the rightful heirs, some iii open 
hostiUty to them. 

In Kavataria, the village adjoining the Mission and 
the Government Station, the last chief’s son, one 
Dayhoya, has completely ousted the real masters, 
supported in this by European influence, which 
naturally worked for patrilineal claims. But the 
conflict, more acute nowadays and carried on with 
greater force by the paternal principle, because of the 
backing it inevitably receives from the white man, is 
as old as mythological tradition. It is expressed in the 
stories told for amusement, the kukwanebu, where 
latula guya’u, the chief’s son, is a standard type, 
arrogant, pampered, pretentious, often the butt of 
practical jokes. In serious m 5 rths, he is sometimes the 
villain, sometimes the contending hero — ^but the 
opposition of the two principles is clearly marked. 
But most convincing as to the age and cultural depth 
of the conflict, is the fact that it is embedded in a 
number of institutions, with which we shall presently 
become acquainted. Among the people of low 
rank, the opposition between Mother-right and Father- 
love also exists, and it shows itself in the 
father’s tendency to do all he can for his son, at 
the nephew’s expense. And again after the father’s 
death the son has to return to the heirs practically all 
the benefits and possessions received dtiring the father’s 
lifetime. This naturally leads to a good deal of 

discontent, friction, and round-about methods of 
arriving at a satisfactory settlement. 

We are, then, once more face to face with the dis- 
crepancy between the ideal of law and its realization, 
between the orthodox version and the practice of 
actual life. We have already met with it in exogamy, 
in the system of counter-magic, in the relation between 
sorcery and law, and, indeed, in the elasticity of all 
the rules of civil law. Here, however, we find the very 
foundations of the tribal constitution challenged, 
indeed systematically flouted by a tendency entirely 
incompatible with it. Mother-right as we know is the 
most important and the most comprehensive principle 
of law, underl3dng aU their customs and institutions, 
It rules that kinship has to be counted through females 
only and that aU social privileges follow the maternal 
line. Thus it excludes the legal validity of a direct 
bodily tie between father and child and of any filiation 
in virtue of this tie.’^ With all this, the father loves the 

^ The natives are ignorant of the fact of physiological fatherhood, 
and, as I have shown in op. cit.. The Father in Primitive Psychology, 
1926, have a supernatural theory of the causes of birth. There is 
no physical continuity between the male and the children of his 
wife. Yet the father loves his child even from birth — ^to the extent 
at least to which the normal European father does. Since this 
cannot be due to any ideas that they are his offspring, this must be 
due to the outcome of some innate tendency in the human 
species, on the part of the male to feel attached to the children 
bom by a woman with whom he is mated, has been living 
permanently and has kept watch over during her pregnancy. 
This appears to me the only plausible explanation of the * voice 

child invariably and this sentiment finds a limited 
recognition in law ; the husband has the right and duty 
to act as a guardian to his wife's children till puberty. 
This, of course, is the only line which law can possibly 
take in a culture with patrilocal marriage. Since small 
children cannot be severed from the mother, since she 
has to be with her husband, often at a distance from her 
own people, since she and her children need a male 
guardian and protector on the spot — ^the husband 
necessarily fulfils this r61e and he does it by strict and 
orthodox law. The same law, however, orders the boy — 
not the girl, who remains with the parents till 
marriage — to leave the father’s house at puberty and 
to move to his mother’s community and pass into the 
tutelage of his maternal uncle. This, on the whole, 
r un s counter to the wishes of the father, of the son and 
of the latter’s uncle — the three men concerned, with 
the result that there has grown a number of usages, 
tending to prolong paternal authority and to establish 
an additional bond between father and son. The strict 
law declares that the son is citizen of the maternal 
village, that in his father’s he is but a stranger 
{tcmakava ) — usage allows him to remain there and to 
enjoy most of the privileges of citizenship. For 

of blood ' which speaks in societies ignorant of fatherhood as 
well as those that are emphatically patriarchal, which makes a 
father love his physiologically own child as well as one bom 
through adultery — as long as he does not know of it. The 
tendency is of the greatest use to the species. 

ceremonial purposes, in a funeral or mourning per- 
formance, in a feast and as a rule in fight, he will stand 
side by side with his maternal uncle. In daily execution 
of nine-tenths of all the pursuits and interests of life 
he is bound to his father. 

The usage of keeping the son after puberty, often 
after marriage, is a regular institution : there exist 
definite arrangements to meet it, it is done according to 
strict rules and definite procedure, which make the 
usage anything but clandestine and irregular. There is 
first the accredited pretext that the son remains there 
to be able better to fill his father’s yam-house, which 
he does in the name of his mother's brother and as his 
successor. In the case of a chief again there are certain 
offices, considered to be most appropriately filled by the 
chief’s own son. When this latter marries he builds 
a house on his father’s site, near the father’s own 
dwelling. 

The son naturally has to live and eat, he must there- 
fore make gardens and carry on other pursuits. The 
father gives him a few baleko (garden plots) from his 
own lands, gives him a place in his canoe, grants him 
rights of fishing — ^hunting is of no importance in the 
Trobriands — equips him with tools, nets and other 
fishing tackle. As a rule, the father goes further. He 
allows his son certain privileges and gives him presents, 
which by right he should keep tiU he hands them on to 
his heirs. It is true that he will give such privileges and 

no 

presents to his heirs during his Hfe-time, when they 
solicit it by a payment called pokala. He cannot even 
refuse the deal. But then his younger brother or his 
nephew has substantially to pay for land, magic, 
Kula rights, heirlooms, or ‘ mastership ' in dances and 
ceremonies ; even though they belong to him by right 
and he would inherit them in any case. Now established 
usage allows the man to give such valuables or privileges 
to the son fre& of charge. So that here the usage, 
established but non-legal, not only takes great liberties 
with the law, but adds insult to injury by granting the 
usurper considerable advantages over the rightful 
owner. 

The most important arrangement by which a 
temporary father-line is smuggled into Mother-right 
is the institution of cross-cousin marriage. A man in 
the Trobriands who has a son and whose sister gives 
birth to a girl child has the right to ask that this infant 
be betrothed to his son. Thus his grandchildren wiU be 
of his own kin, and his son will become the brother-in- 
law of the heir to chieftainship. This latter wiU, there- 
fore, be under an obligation to supply the son’s house- 
hold with food and in general to be a helpmate to his 
brother-in-law and protector of his sister’s family. 
Thus the very man on whose interest the son is likely 
to encroach is prevented from resenting it and, indeed, 
made to regard it as his own privilege. Cross-cousin 
marriage in the Trobriands is an institution by 

which a man can secure for his son a definite though 
roundabout right to remain for hfe in the father's 
community, through an exceptional matrilocal 
marriage, and enjoy almost all the privileges of full 
citizenship. 

Thus round the sentiment of Father-love there 
crystallizes a number of established usages, sanctioned 
by tradition and regarded as the most natural course by 
the community. Yet they are contrary to strict law or 
involve exceptional and anomalous proceeding such as 
matrilocal marriage. If opposed and protested against 
in the name of the law, they must give way to it. Cases 
are on record, when the son, even though married to 
his father’s niece, had to leave the community. And not 
infrecjuently the heirs put a stop to their uncle’s illegal 
generosity, by demanding with pokala what he is 
about to give to his son. But any such opposition gives 
offence to the man in power, provokes hostilities and 
frictions, and is resorted to only in extreme cases.

JN analysing the clash between Mother-right and 
Father-love, we have focussed our attention on the 
personal relations between the man, his son and his 
nephew respectively. But the problem is also that of the 
unity of the clan. For the group of two formed by the 
man in power (whether chief, notable, village headman, 
or sorcerer) and his heir is the very core of the 
matrihneal clan. The unity, homogeneity, and 
solidarity of the clan can be no greater than that of its 
core, and since we find that this core is fissured, that 
there are normally tensions and antagonisms between 
the two men, we cannot accept the axiom that the clan 
is a perfectly welded unit. But the ‘ clan-dogma ' or 
' sib-dogma to use Dr. Lowie’s apposite expression, 
is not without its foundations, and though we have 
shown that in its very nucleus the clan is split, and 
also that it is not homogeneous as regards exogamy, 
it will be good to show exactly how much truth there 
is in the contention of clan unity. 

It may be stated at once that here, again. 
Anthropology has taken over the orthodox native 

doctrine or rather their legal fiction at its face 
value, and has been thus duped by mistaking the 
legal ideal for the sociological realities of tribal 
life. The position of native law in this matter 
is consistent and clear. Accepting Mother-right 
as the exclusive principle of kinship in legal 
matters, and applpng it to its furthest consequences, 
the native divides all human beings into those 
connected with himself by the matrilineal tie whom 
he calls kinsmen {veyola), and those who are not thus 
related, and whom he calls strangers {tomakava). This 
doctrine then is combined with the ‘ classificatory 
principle of Kinship which fully governs only the 
vocabulary, but to a limited extent also influences 
legal relations. Both Mother-right and the classificatory 
principle are further associated with the totemic 
system, by which all human beings faU. into four clans, 
subdivided further into an irregular number of sub- 
clans. A man or woman is a Malasi, Lukuba, 
Lukwasisiga, or Lukulabuta, of such and such sub- 
clan, and this totemic identity is as fixed and definite 
as sex, colour of skin, or size of body ; it does not 
cease with death, the spirit remaining what the man 
has been, and it existed before birth, the ‘ spirit-child ’ 
being already member of a clan and sub-clan. Member- 
ship in sub-clan means a common ancestress, unity of 
kinship, unity of citizenship in a local community, 
common title to lands and co-operation in many 

economic and in aU ceremonial activities. Legally it 
implies the fact of common clan and sub-clan name, 
common responsibilities in vendetta {lugwa), the rule of 
exogamy, finally the fiction of an overweening interest 
in one another's welfare, so that by a death the sub- 
clan first and to some extent the clan are considered 
bereft and the whole mourning ritual is tuned to this 
traditional view. The unity of the clan and stiU more 
of the sub-clan is, however, expressed most tangibly in 
the great festive distributions (sagali), in which the 
totemic groups play a game of ceremoniaUy-economic 
give and take. Thus there is a multiple and a real 
unity of interests, activities and necessarily some 
feelings, uniting the members of a sub-clan and the 
component sub-clans into a clan and this fact is 
very strongly emphasized in many institutions, in 
mythology, in vocabulary and in the current sajdngs 
and traditional maxims. 

But there is also the other side to the picture, of 
which we have had clear indications already, and this 
we must concisely formulate. First of all, though aU 
ideas about kinship, totemic division, imity of 
substance, social duties, etc., tend to emphasize the 
' clan dogma not all the sentiments follow this lead. 
While in any contest of social, political, or ceremonial 
nature a man through ambition, pride, and patriotism 
invariably sides with his matrilmeal kindred, softer 
feelings, loving friendship, attachments make him 

often neglect clan for wife, children, and friends, in the 
ordinary situations of hfe. Linguistically, the term 
veyogu (my kinsman) has an emotional colouring of 
cold duty and pride, the term lubaygu (my friend and 
my sweetheart), on the other hand, possesses a 
distinctly warmer, more intimate tone. In their after 
death beliefs, too, the ties of love, conjugal attachment 
and friendship are made — ^in a less orthodox but more 
personal behef — ^to endure into the spirit world, even 
as totemic identity endures. 

As to the definite duties of the clan, we have seen 
in detail, on the example of exogamy, how much 
elasticity, evasion, and breach there is. In economic 
matters as we know already, the exclusiveness of clan 
co-operation suffers a serious leakage through the 
father’s tendency to give to his son and to take him 
into clan enterprises. Lugwa (the vendetta) is carried 
out but seldom : the payment of lula (peace-making 
price) is again a traditional form of compensation for, 
really of evasion of the sterner duty. In sentiment, 
the father or the widow is often far more keen on 
avenging the murdered one’s death than his kinsmen 
are. On all occasions when the clan acts as one 
economic unit in ceremonial distributions, it remains 
homogeneous only with regard to other dans. Within, 
strict accoimts" are kept between the component 
sub-dans and within the sub-dan between individuals. 
Thus here again the unity exists on one side, but 

ir6 

it is combined on the other with a thorough-going 
differentiation, with strict watch over the particular 
self-interests, and last but not least with a thoroughly 
business-like spirit not devoid of suspicion, jealousy 
and mean practices. 

If a concrete survey of the personal relations within 
the sub-clan were taken, the strained and distinctly 
unfriendly attitude between maternal uncle and nephew 
as we saw it in Omarakana, would be by no means 
infrequently found. Between brothers sometimes there 
exists real friendship, as was the case with Mitakata and 
his brothers, and with Namwana Guya’u and his. On 
the other hand, strong hatreds and acts of violence and 
hostility are on record both in legend and actual life,. 
I shall give a concrete example of fatal disharmony 
within what shotild be the nucleus of a clan ; a group 
of brothers. 

In a village quite close to where I was camping 
at that time, there lived three brothers, the eldest 
of whom, the headman of the clan, was bhnd. 
The youngest brother used to take advantage of this 
infirmity and to gather the betel-nut from the palms 
even before it was properly ripe. The blind man was 
thus deprived of his share. One day when he discovered 
again that he was cheated of his due, he broke into a 
passion of fury, seized an axe, and entering his 
brother’s house in the dark, he Succeeded in wounding 
him. The wounded man escaped and took refuge in the 

third brother’s house. This one, indignant at the 
outrage done to the youngest brother, took a spear 
and killed the blind man. The tragedy had a prosaic 
ending, for the murderer was put into jail for one 
year by the magistrate. In the olden days — on this 
all my informants were unanimous — he would have 
committed suicide. 

In this case we meet the two standard criminal acts, 
theft and murder, combined and it wiU be well to make 
a brief digression on them. Neither delict plays any 
considerable part in the life of the Trobriand natives. 
Theft is classified under two concepts : kwajiatu (Ut. 
to catch hold), which- word is applied to unlawful 
appropriation of objects of personal use, implements, 
and valuables ; and vayla’u, a special word, applied 
to theft of vegetable food either from gardens or 
yam-houses, also used when pigs or fowl are 
purloined. While the thieving of personal objects is 
felt to be a greater nuisance, stealing of food is 
more despicable. There is no greater disgrace to a 
Trobriander than to be without food, in need of it, 
to beg for it, and an admission by act that one has been 
in such straits as to steal it entails the greatest 
hmniHation conceivable. Again, since the theft of 
valuables is almost out of question, because they are 
all earmarked,^ thieving of personal objects cannot 

^ Cf. the writer's op. cit, Argonauts of the Western Pacific. 

Ii8 

inflict any serious loss on the rightful owner. The 
penalties in either case would consist in the shame and 
ridicule which covers the culprit and, indeed, all cases 
of theft brought to my notice were perpetrated by 
feeble-minded people, social outcasts, or minors. 
Depriving the white man of his superfluous possessions, 
such as trade goods, tinned food or tobacco, which he 
keeps locked in a niggardly fashion withbut using, is 
in a class by itself, and is naturally not considered 
a breach of law, morality or gentlemanly manners. 

A murder is an extremely rare occurrence. In fact, 
apart from the case just described, only one 
occurred during my residence : the spearing of a 
notorious sorcerer at night, while he was surreptitiously 
approadhting the village. This whs done in defence of the 
sick man, the victim of the sorcerer, by one of the armed 
guard who keep watch during the night on such 
occasions. 

A few cases are told of killing as punishment for 
adultery caught in flagranti, insults to people of high 
rank, brawls and skirmishes. Also, of comse, killing 
during regular war. In all cases when a man is killed 
by people of another sub-clan, there is the obligation 
of talion. This, in theory, is absolute, in practice it is 
regarded obligatory only in cases of a male adult of 
rank or importance ; and even then it is considered 
superfluous when the deceased had met his fate for a 
fault clearly his own. In other cases, when vendetta 

is obviously demanded by the honour of the sub-clan, 
it is still evaded by the substitution of blood-money 
{hda). This ws a regular institution in the making of 
peace after war, when a compensation was given to the 
other side for every one killed and wounded. But also 
when murder or homicide were committed, a lula 
would relieve the survivors from the duty of talion 
{lugwa). 

And that brings us back to the problem of clan unity. 
All the facts quoted above show that the unity of 
the clan is neither a mere fairy tale, invented by 
Anthropology, nor yet the one and only real principle 
of savage law, the key to ah its riddles and difficulties. 
The actual state of affairs, fully seen and thoroughly 
understood, is very complex, full of apparent as well as 
of real contradictions and of confficts due to the play 
of the Ideal and its actualization, to the imperfect 
adjustment between the spontaneous human tendencies 
and rigid law. The unity of the clan is a legal fiction in 
that it demands — ^in all native doctrine, that is in all 
their professions, and statements, sa3dngs, overt rules 
and patterns of conduct — an absolute subordination 
of aU other interests and ties to the claims of clan 
solidarity, while, in fact, this sohdarity is almost 
constantly sinned against and practically non-existent 
in the daily run of ordinary life. On the other hand, at 
certain times, in the ceremonial phases of native life 
above all, the clan unity dominates everj^thing and in 

cases of overt clash, and open challenge it -will overrule 
personal considerations and failings which under 
ordinary conditions would certainly deter m i n e the 
individual’s conduct. There are, therefore, two sides 
to the question, and most of the important events of 
native life, as well as of their institutions, customs, 
and tendencies cannot be properly understood without 
the realization of both sides and of their interaction. 

It is not difficult to see also, why Anthropology 
fixed upon one side of the question, why it presented 
the rigid but fictitious doctrine of native law as the 
whole truth. For this doctrine represents the intel- 
lectual, overt, fully conventionalized aspect of the 
native attitude, the one set into clear statements, into 
definite legal formulae. When the native is asked what 
he would do in such and such a case, he answers what 
he should do ; he lays down the pattern of best possible 
conduct. W’hen he acts as informant to a field-anthro- 
pologist, it costs him nothing to retail the Ideal of the 
law. His sentiments, his propensities, his bias, his 
self-indulgences as well as tolerance of others’ lapses, 
he reserves for his behaviour in real life. And even 
then, though he acts thus, he would be unwilling to 
admit often even to himself, that he ever acts below 
the standard of law. The other side, the natural, 
impulsive code of conduct, the evasions, the com- 
promises and non-legal usages are revealed only to the 
field-worker, who observes native life directly, registers 

I2I 

facts, lives at such close quarters with his ' material ’ 
as to understand not only their language and their 
statements, but also the hidden motives of behaviour, 
and the hardly ever formulated spontaneous line of 
conduct. ‘ Hearsay Anthropology ’ is constantly 
exposed to the danger of ignoring the seamy side of 
savage law. This side, it can be said without exaggera- 
tion, exists and is tolerated as long as it is not squarely 
faced, put into words, openly stated and thus challenged. 
This accounts perhaps for the old theory of the ‘ un- 
tranomeUed savage ' whose customs are none and whose 
manners are beastly. For the authorities who gave' us 
this version knew well the intricacies and irregularities 
of native behaviour which 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, hke 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 totenaic 
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, econonaic 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 m3d:hological 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 orthodbx 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 defpng 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 obliga- 
tions, 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 dis- 
criminate 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 aU this, 
for our conclusions were both substantiated with 
evidence and discussed theoretically at length. 

But it is worth while to reaUze 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 juris 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 anthro- 
pological 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 trans- 
actions in which they are but a link. I maintain that 
the staccato manner in which most accounts of tribal 
life are given is the resxilt 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 hfe, 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 state- 
ment such as, for example, " Among the Brobdig- 
nacians 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 runs 
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 state- 
ments 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 state- 
ments are given as they occur in actuality and not as 
they should or are said to occur. Many of the earher 

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 
i the anthropologist’s expense. To the old recorders 

? what mattered really was the queemess of the custom, 

y not its reality. The modem anthropologist, working 

■ : through an interpreter bj;- the question and answer 

method can again collect only opinions, generalka- 
i tions, and bald statements. He gives us no reality, for 

i he has never seen it. The touch of ridicule which hangs 

I about most writings of anthropology is due to the 

artificial flavour of a statement tom out of its life- 
;■ context. The tme problem is not to study how hmnan 

life submits to rules — ^it simply does not ; the real 
\ problem is how the rules become adapted to life, 

si As regards our theoretical gains the analysis of 

Trobriand law has given \is a clear view of the forces 
I of cohesion in a primitive society, based on solidarity 

I within the group as well as on the appreciation of 

i personal interest. The opposition of primitive ' group- 

?; sentiment ’, ‘ joint personality ’ and ‘ clan absorption ' 

f to civilized individualism and pursuit of selfish ends 

I appear to us altogether artificial and futile. No society, 

I however primitive or civilized, can be based on a 

I 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 

I descriptions and statements of fact, some of these led 

naturally to a more general theoretical analysis which 
pelded 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 recon- 
structions. 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.^ 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 

^ The relation between Mother-right and Father-love is more 
fully discussed in op. cit.. Sex and Repression in Savage Society^ 

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 jingo