Law Primitive

Scope of Primitive Law. (a) Civil Department.—Passing on to substantive law as contrasted with the adjective law which deals with procedure, a twofold function of any legal code as it bears on social relations can be distinguished according as it either establishes just conditions in respect to personal status and the use of possessions, or maintains public order by repressing violence and fraud. The former purpose delimits the province of civil law, the latter that of criminal law. Being, then, in its main essence a law of persons and of property, civil law under the former head defines the civic rights of the individual, which in the modern democratic State tend to be treated as equal for all concerned; so that contract, or the power of each to give in pro portion as he receives from the rest, is assumed as the logical basis of their mutual relations. But, as Sir Henry Maine has observed, whereas contract is the principle underlying the modern State, the primitive community rests on quite another principle, that of status, in the sense of unequal privilege depending on unequal station in life. Superficially, indeed, an extreme form of de mocracy might seem to prevail at the tribal level of society, but on a closer view it will be found that the individual has little or no freedom of choice in determining what his place in society is to be, but must conform strictly to what is expected from one occu pying once for all a given position. In particular, the ties of kin ship and affinity, which vary according to the marriage system in vogue, bind each man and woman fast in a network of obligations, to which religion conspires with law to impart a most solemn sanction. The field-observer has only to ask, "Who are your re lations, and what must you do for them, and they for you?" and he has a key to the whole system of rights and duties which renders that society organic. Incidentally he can by so doing acquaint himself at the same time with their methods of holding and dis tributing property. Thus in the primitive community the in dividual by no means enjoys, as would occur under a regime of contract, a free use of what he earns, and still less of what he in herits. Under conditions of mother-right, for instance, the father is usually debarred from enriching his own offspring at the expense of his sister's children ; and, even when custom concedes him a limited power of sharing his acquired property with his wife and the children she bears him, his own family possessions, being more or less collectively owned by those of his own name and kin, can under no circumstances be alienated. Or, again, under the kind of father-right that involves so-called wife purchase—though it is really the right to own the woman's children that is bought—the change of status that she undergoes is so complete that henceforth she has no claim on her own family ; but on the contrary is so identified with the group that she has joined that, if her husband dies, she is passed on to a kinsman as if a burden on the estate.

(b) Criminal Department.

So long as private justice pre vails, it remains hard for the primitive community to realize that one and all have a common interest in suppressing any sort of out rage prejudicial to the social order. Nevertheless certain offences are perceived so directly to affect tribal welfare as a whole that even the most loosely organized societies take steps to punish them. Thus, on the one hand, treason or cowardice in the face of the enemy is bound to provoke an outburst of universal indignation. On the other hand—and this is the more typical occasion of one of those "wild spasms of wild justice" of which Bagehot speaks— certain types of immoral conduct awake deep-seated feelings of disgust and horror in humanity at large. Incest, for example, and sundry other breaches of sexual decency, are felt to be so generally polluting that to extirpate the cause of pollution seems the natural cure. The fear of witchcraft, again, impels men at all stages of culture to purify their spiritual surroundings by wiping out the witch. Proceeding, then, on these lines, one might draw up a con siderable list of what Hobhouse describes as "public and sacral offences," which have a socially dangerous character so obvious that collective action tends to be taken against them even in the more undeveloped societies. Apart from these crimes that mani festly have a bearing on the common weal, there are other crimes which, though they primarily affect private welfare, yet do so in a way so fraught with evil consequences for all that eventually it becomes public policy to take the initiative in suppressing them. Homicide provides a case in point. So long as it is merely punish able according to the law of blood-revenge, it counts as a tort rather than as a crime. Sooner or later, however, the central authority hunts down the murderer on its own account, partly, it may be, in order to avoid the general disturbance caused by blood f euds, but chiefly, it would seem, because on the principle that "blood defileth the land," bloodshed has been confined to the class of sacral offences. Indeed, seeing how the sacred predominates over the secular aspect of all authority and government of the rudimentary type, the crime is almost invariably envisaged as a sin. In short, what early law prescribes and enforces is essentially a ritual—a system of observances, positive and negative, which in intention assimilates the human to the divine order.

BIBLIOGRAPHY.-Sir H. Maine, Ancient Law (1861) and Early Law and Customs (5883) ; W. Bagehot, Physics and Politics (187o) ; L. H. Morgan, Ancient Society (1877) ; J. Kohler, Papers in Zeitschr. f. vgl. Rechtwiss. vols. ii., v., vii., etc. ; L. T. Hobhouse, Morals in Evolution (1915) ; P. Vinogradoff, Outlines of Historical Jurisprudence (192o) ; R. H. Lowie, Primitive Society (192o) ; E. S. Hartland, Primitive Law (1924) ; B. Malinowski, Crime and Custom in Savage Society (1925). (R. R. M.)