Chapter 4
Bronislaw Malinowski and the Anthropologyof Law
Toma´sˇ Ledvinka
4.1 Introduction
This chapter points out that a solid understanding of Bronislaw Malinowski
srelationship to law should be founded on how it differs from both non-legalanthropology and jurisprudence. The reader is guided to the moment when thelink between law, anthropology and exotic fieldwork became a fount of inspiration.With a slight retrospective bias, the main lines of research are described as being infavour of Malinowski. A closer look at native law through participant observationacts as a starting point for explaining how the ethnographer sees law within theseamless web of the foreign culture. The symmetrical treatment of law and scienceshould help to illuminate the significance of Malinowski
s anthropology of law for those anthropologists who are usually not concerned with law. Reciprocity ispresented as a part of a much different idea than the definition of law or 
, andas a disconnecting factor in relation to conventional modern dualisms. The chapter then discusses the unrecognised discoveries that are to be found underneath thehostile criticism of Malinowski and the misunderstood ironies expressed by Mali-nowski within the context of conflict between the Trobriand legal systems as a keyto understanding Malinowski
s approach to native and European law. Finally, thechapter returns to the impact of Malinowski
s methodological innovations, such ascross-cultural comparison and participant observation, on the anthropological ideasof law and legal comparisons.
T. Ledvinka (
)Charles University, Faculty of Humanities, Prague, Czech Republice-mail:
Springer International Publishing Switzerland 2016M. Ste˛pien´ (ed.),
 Bronislaw Malinowski’s Concept of Law
,DOI 10.1007/978-3-319-42025-7_455
4.2 Malinowski as a Disciplinary Other
“Following Malinowski, we are soon
paddling on the lagoon, watching the nativesunder the blazing sun at their garden work, following them through the patches of  jungle; and (
) on the winding beaches and reefs, we shall learn about their [law— ed. T.L.]
” (Redfield 1948, p. vii). “The reader may be surprised to learn that he hasmet law on his placid trip on the lagoon; he may think he has not perceivedit. However, he is assured that law in Malinowski
s terms is there” (Hoebel 1954,p. 180). This remarkable but ingenuous connection between law and the tropicallagoon has changed how anthropology understands not only tropical “Others”, butalso law in general. Although unusual enough to inspire a new anthropologicalapproach for which a native canoe is just as relevant a legal and organisationalprinciple as the constitution of modern states, this new situating of law was still toounintelligible for conventional jurisprudence, which is firmly entrenched withinconventional disciplinary boundaries. It thus seems that although Malinowski
sengagement with social and cultural anthropology reflects the success of a man whomanaged to synthesise two traditions—strictly empirical science with its first-handobservations and the various subjects of study of armchair anthropology—hisengagement with law as an anthropological subject was somewhat out of focusand misrepresented by many. Such an impression is almost inevitable when goingthrough the dozens of subsequent references to Malinowski and law. They couldcontain a legitimate criticism—one that perhaps comes from differing disciplinaryperspectives, but unfortunately they can hardly help us to truly understand his maindiscoveries about law which have been overlooked until the present. For a completeoverview of Malinowski
s contributions to the anthropological studies of law seeHoebel (1954, pp. 177–178) or Schapera (1957 /1960). As we are moving through a complicated terrain along a disciplinary border, weshould distinguish at least three areas in which the topic of Malinowski and lawshould be relevant: jurisprudence (or legal science in the broader sense), non-legalanthropology, and in particular the anthropology of law. Jurisprudence
s responseto Malinowski was more than conservative. Although it has been suggested manytimes, for instance by Moore, that “this [Malinowski
s] breadth of approach appliedto a narrow field of observation seems particularly appropriate to the study of lawand social change in complex societies,” (Moore 2000, p. 55) legal scholars haveoften labelled Malinowski
s studies as merely “exotic” or “historic” instead of “modern-day” or “proximate”. Perhaps this was a by-product of the juristic treat-ment of law as if it were beyond analysis of culture and society. Although there hasbeen certain optimism concerning “the rapprochement between anthropology and jurisprudence” (Bohannan 1967, pp. 47–48), in hindsight Moore was quite scepti-cal: “Malinowski
s ideas suffered the common fate of many cultural innovations.When exported from anthropology and introduced into another discipline, juris-prudence, anthropological ideas were interpreted in ways that would disruptpre-existing jurisprudential schemes as little as possible; they were selectivelyincorporated, but not used very creatively(Moore 2000, p. 220). Also, an
56 T. Ledvinka
anthropology that does not consider the ethnographic theorising of law has much incommon with jurisprudence because it can use only the other channel atits disposal,the one by which legal (or rather, conventional juristic) understanding is uncriti-cally transferred into anthropology
s understanding of law. The avoidance of bothMalinowski and later anthropology of law of the twentieth century thus returnsanthropologists to the earlier disciplinary order between law (which was seennormatively) and culture (whose definition was changing at the time)—in other words, to a time before Malinowski, who was a cultural and disciplinary innovator and obviously also the destroyer of the old scientific worldview. For many people,however, the nineteenth-century boundary between law and anthropology stillfunctions as a constraint which keeps empirical science outside the gates of normativity.For these reasons, I believe that our capacity for understanding Malinowski andthe law increases if we see Malinowski as a disciplinary
 rather than as adisciplinary
. It has not been always recognised that Malinowski was simplynot a jurist; he was very different from legal theoreticians. As a result, his work hasnot been successfully translated into legal theory. The question is whether such atranslation is desirable or possible, for the gap remains: The gap between a singleanthropologist whose unusual experience with law comes from his anthropological(rather than juristic) background and from his encounter with the law of a remoteMelanesian society on the one hand, and thousands or rather millions of juristseducated in more or less the same way at modern law schools all around the worldon the other hand. This gap can be also seen in terms of the disparity between thequality of first-hand research and the quantity of transmitted knowledge, or betweenanthropology
s emphasis on experience and the juristic emphasis on apodicticcontemplations (with many legal fictions as propositions). Malinowski should notbe presented as a neutralised quasi-jurist. However, Malinowski
s “legal” achieve-ments are today subject to “disciplinary amnesia” (Engelund 2015, p. 270) not onlyin the legal sciences but also in the non-legal anthropology.The anthropology of law, which connects both of those disciplinary traditions,has grown and matured since Malinowski
s time, and so this discipline representsperhaps the only safe ground for an objective look back at his significance. In thisfield, Malinowski was considered one of the first to attempt to fill the “
vacuum in the ethnological literature” (Pospı´sˇil 1973, p. 537)—which had previ-ously been the rule in anthropology—and he certainly was the first to analyticallythink about the law and legal comparisons with the assistance of participantobservation. For this reason he is—alongside a small number of others includingKarl Llewellyn and Leopold Pospı´sˇil—an emblematic figure for the subsequentdevelopment of the anthropology of law. Within this disciplinary canon, weencounter basically three types of references to Malinowski—recognition of hissignificance (but without deeper reasoning), theoretical criticism (although usuallyunfair and misdirected), and empirical remarks that compare his conclusions aboutlaw to the conclusions made by the paper in question. The first approach can beillustrated through a few examples. According to Robert Redfield, “the road to theleft has been recently opened with a great flourish by B. Malinowski (1926, 1934)”
4 Bronislaw Malinowski and the Anthropology of Law 57
(1967, p. 3). June Starr claimed that “Malinowski (...) pointed the way towards theempirical study of law by suggesting the ethnographer should not take too narrow aview, so that law is only equated with
 (1992, p. xxiv). Sally Moore mentioned that “it was not until Malinowski
 Crime and Custom in Savage Society
(1926) that anything written on law by an anthropologist achieved a wide audienceand raised serious theoretical questions” (2000, p. 218), and perhaps more generallyLaura Nader recognised Malinowski as the one who “broke ground with what todaywould be called multi-sited fieldwork, and scientific rigor” (2011, p. 214). Oneexample of the second type of reference to Malinowski is criticism of the“overinclusiveness” of Malinowski
s definition of law, as first uttered by Redfield(1967, p. 4) and perhaps most recently repeated by Donovan and Anderson (2003), pp. 11–12). Malinowski
s theory was seen also as “an outstanding example of theneglecting of the formal aspects of law”, for he rejected “the importance of formalcharacteristics, especially of organised sanction(de Jong 1948, pp. 4, 7). Hisconcepts of law were accused of containing “various instances of inconsistencyand contradiction” (Schapera 1957/1960, p. 146). The last sort of reference toMalinowski is the rarest. Llewellyn and Hoebel (1941), pp. 251, 266–267), for instance, compared the role of reciprocity in Cheyenne and Trobriand law. Further,Hoebel (1967, p. 187) later compared reciprocity among the Comanche to Trobri-and reciprocity.Jan Josselin de Jong, a leading figure of Dutch anthropology at the time, offeredstill another view on Malinowski: “It seems very strange indeed that Malinowskiwhile sharply criticising [the notion of savage law – ed. T.L.] did not realise that hisown description of [Trobriand society—ed. T.L.] did not by any means refute therejected view, but on the contrary confirmed it (
). His own vision had becomeblurred and so, with regard to the central problem, we are left exactly where we are”(1948, pp. 5–7). Malinowski indeed blurred the categories of law he used. But weshould read this blurring as a theoretical implication for legal thought grounded inhis fieldwork. The law of the Trobriand lagoons offered not only the gradualaddition of new facts to existing knowledge, but also the gradual abandonment of entrenched legal categories. Malinowski
s theoretical ideas of law can be thus seenas disconnecting factors (to borrow and modify the concept of private internationallaw) on the road of anthropology
s emancipation from normative science.
4.3 Lines of Research
Malinowski followed “the generation of anthropologists working at the turn of thecentury, such as Alfred C. Haddon, William Rivers, Charles G. Seligman andBaldwin Spencer, who made the first intensive field studies”, and together withAlfred R. Radcliffe-Brown established “intense personal fieldwork” and “syn-chronic analysis” “as academic disciplines” (Nakai 1994, p. 22). Although he hadearly followers such as Zach Richards and his study of the subsistence lifestyle of the South-eastern Bantu, Ian Hogbin and Wogeo land tenure, Monica Wilson and
58 T. Ledvinka
the Nyakyusa legal system, and Isaac Schapera and Southern Bantu law (Hoebel1951, p. 248), the theoretical implications of his innovative approach were onlyrealised gradually during the turbulent years of legal anthropology after World War II. The synchronicity of this process and events in world history such as theNuremberg trials and decolonisation that weakened conventional legal doctrinesand entrenched legal categories lent his ideas relevance far beyond disciplinaryboundaries.Although Malinowski was not the only anthropologist to study native law at thetime, his liberation from the conventional legal dualisms of Western vs. Savage,civil vs. criminal, substantive vs. processual, public vs. private, or seculavs. religious was unique and remains unrecognised to this day. This chapter looksat Malinowski
s early liberation from established ways of thinking about law andtries to show that it was an implicit crucible for later legal anthropologists.However, in retrospect it may be difficult to distinguish which ideas inMalinowski
s work were undeveloped seeds that provided inspiration for later enquiries, and which can be justly ascribed to Malinowski himself. Some lines of research can be associated with his name to varying degrees. First, there is the lineof research that describes law as a native knowledge that can be identified throughthe classical anthropology of law (Llewellyn and Hoebel 1941; Pospı´sˇil 1958;Bohannan 1957; Gluckmann 1955; Nade 1990; Offner  1983; French 1995; Rosen 1989). Then there are ethnographic studies of unofficial law in so-calledstate societies (Abel 1982; Conley and O
Barr  1990; Greenhouse et al. 1994). A third example are studies of the sociocultural context of modern official law, whichcan be found in the whole body of the sociology of law that is concerned with thesociological aspects of law (for instance Macaulay 1963, 1995; Conley and O
Barr 1997). Fourth are recent ethnographies of Western official law itself (Latour  2002; Riles 2011), and fifth comes that line of research linking the study of non-modernlegal systems and other forms of social control with similar studies of the West.Further, finally there is the inter-cultural comparative treatment of legal systems,which is broader than comparative law in the strict sense and which, with a fewexceptions, is mostly found alongside the previous examples (Pospı´sˇil 1971;Gluckmann 2012).At least, all these lines of research follow Malinowski
s initial impetus andengage in a far-reaching transformation of the anthropological understanding of law. This transformation could also be seen in this way: when studying savage law,modern law, religious law, or customary law, we should simply erase the modifier so that we are left with just the concept of law. This aspect of Malinowski
sapproach was deployed by Edwin Hutchins (1980). His half-legal and half-cognitive ethnography was an empirical re-examination of the legal dimension of 
Coral Gardens and Their Magic
 (1935), with a focus on land tenure. Hutchins sawcultural and legal systems as an embodiment of certain logic of inference situatedwithin specific mental and material settings. In his study, Hutchins realised that amajor problem in understanding the real differences between legal systems andthoughts is that “much of discourse is composed of syllogisms in which one or morepremises are left unstated” and that ethnographically informed research can provide
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