In Malinowski's time, many anthropologists of all backgrounds viewed indigenous people as people who followed their own traditions and customs because that was the most obvious thing to do. Their conforming behavior stemmed from fear of punishment from supernatural forces, or from frequent exposure to public opinion. Or it was said that indigenous people were guided by "instinctive feelings" and "group sentiments" that were crucial to their survival.
It was believed that tradition, customs, and habits were the only guide that illuminated their path. And it was believed that traditional norms were relatively few, and that ultimately they lived accordingly, a freer existence than they led in civilized countries.
Malinowski for the anthropology of law
In reality, it was later discovered that they lived in a highly regulated environment. This regulation was due not only to the elements discussed above, but also to the previously ignored fact that native society was imbued with rules that were, in effect, legal norms.
And Malinowski was one of the first to realize this, and to speak of the anthropology of law . As in all societies, obedience to the law is assumed by the majority of individuals; if this were not the case, societies could not exist.
Our researcher primarily sees the law's influence in economic matters. Let's begin by saying that the object of his study is Trobriander society, located in northwestern Melanesia. The Trobrianders live in an archipelago whose islands encompass a lagoon full of fish. The soil on these islands is very fertile and suitable for agriculture.
Canoes and trade: legal constraints
Through inductive and unbiased field research, we were exposed to several facts that undoubtedly pertain to the legal constraints inherent to the population under observation. The canoes used for fishing had a single owner, who had built or purchased their own canoe. The crew members belonged to the owner's subclan and, together with him, were required to repair the canoe when it began to age.
The owner could not exclude any crew member and had to distribute a portion of the catch equally among them. Furthermore, there was a division of tasks during fishing: spotting fish, using the net, and steering; it was a division of labor based on status, age, and personal ability. Continuing the legal path, we know that there was a balanced practice of gifts and counter-gifts between the coastal and inland populations. The former provided the fish, the latter the vegetables, in an exchange where the gift was always reciprocated.
Exchanges occurred between friends, relatives, or villages; and each individual always had the same exchange partner. The exchanges were periodically punctuated by ritual celebrations that were like festivities. Sometimes the exchanges would stumble, and someone felt it was safe to interrupt the cycle of giving without suffering harm or dishonor. But such behavior fell under the scrutiny of law , which established who was responsible for the failure of this dual transaction. And whoever was found responsible was punished.
Marriage and funeral rites
But in Malinowski's text, we find two other examples of the influence of law on practices in other social spheres : take funeral rituals and weddings. In the funeral ritual, we imagine a woman mourning her dead husband. It's obvious that she can cry out of love, pity, or fear related to the deceased's spirit. But the woman's weeping is also seen as an obligation to the deceased's family, and in particular to her maternal relatives. In this case, we recognize the presence of matrilineality in Trobriand society.
At the first great ceremonial distribution, the aforementioned relatives will give the widow a substantial ritual payment for her tears. But she will also have to wear mourning, and a sign of this will be the fact that she will carry her husband's jawbone among her accessories, for I don't remember for how long.
Matrilineality also emerges from marriage. When a man marries, he enters into a close relationship with his wife's brother. It is he who must take special care of the bride, including providing her with the food she needs. He will show the same kind of protection toward his sister's children. He will be with them at important celebratory moments, not their father. These duties are even more burdensome when we consider that, since marriage is patrilocal, the sister may sometimes go to live with her husband in another village. When harvesting the crops, the brother must demonstrate his complete devotion to his sister, and to maintain or increase his social prestige, he must display his utmost generosity and munificence.
Imagine, for example, a large pile of yams, tubers, in front of the sister's husband's granary. And all the effort it takes to grow and transport them. These traits of generosity and even munificence, present in the average Trobriander, are also indicators of their ambition, their hunger for social recognition and prestige.
According to the researcher, this requirement that it be the brother who provides food for his wife represents a great economic incentive, and is an expression of the Trobrianders' way of conceiving kinship; how can we forget that these are behaviors, the expression of which is subject to binding legal force?
Anthropology of Law in Melanesia
We have thus discussed some of the obligations to which the Trobrianders must submit, and we could also discuss the rewards given to those who perform magical and religious duties. Here too, there is a reciprocal exchange . The author classifies all these duties within the realm of civil law.
At this point, to avoid confusion, a definition of this type of law must be provided. First, it must be said that the "legal phenomena" in Melanesia do not give rise to any form of independent institution . In fact, there exist legal mechanisms, of which we will see a couple of examples at the end.
What Malinowski meant was that, alongside the dictates of custom, Melanesia also has legal ones. The true punishment for those who repeatedly fail to conform to them is exclusion, marginalization, and therefore suffering.
Tradition encompasses magic, religion, and even custom, including good manners, respect for the rules of games and the dictates by which a trade is taught, and so on. All these things are separate, but that doesn't mean that, in their vastness, the law cannot occasionally penetrate them . After all, it's well known that the spheres of society interpenetrate one another.
There would be much to say about the Trobriand traditions but this article and the text from which it was born have a focus on the anthropology of law.
Three examples: Yukala, Kaytapaku and the gwara
Returning to legal mechanisms, let's take three examples: the Yukala, in which the parties exchange public recriminations and accusations. The parties are supported by friends and relatives. Public opinion trends may help resolve disputes. But agreement is reached only sporadically. There is no third party to decide.
Then we have kaytapaku, which is the magical protection of property through a conditional curse. A palm leaf is attached to a tree, and written on it is a statement that a magical formula has been recited that will inflict discomfort on the thief.
Finally, the gwara, posts are planted along the coast prohibiting the export of certain precious objects, but encouraging their importation during the kula. This practice aims to accumulate precious objects before a large ceremonial distribution. The kula is a complex system of exchange practiced on these islands.
In conclusion, the book from which this article is taken talks about a society of the 1920s, and it would be interesting to study it now in light of the changes that have taken place.
Fabio Rinaldi
Bibliography
- B. Malinowski, Crime and Custom in Savage Society
- B. Malinowski, Argonauts of the Western Pacific
- M. Mauss, An Essay on the Gift: The Form and Motive of Exchange in Archaic Societies
