577 



must consider how far our terms — law, legal, criminal and civil 

 law, etc. — are applicable to native conditions. To use these 

 terms in the strict sense in which they are defined in jurisprud- 

 ence would be an obvious mistake. To use them loosely and 

 without troubling as to their meaning would be essentially 

 unscientific, because, in the case of the field ethnologist, it 

 would show that he has not been considering very carefully 

 where to look for his facts and how to group them. 



It will be desirable to explain the manner in which the 

 legal aspect of native life was sought for, without, of course, 

 pretending to give a satisfactory and universally valid defi- 

 nition of law, etc. A field ethnographer has to describe facts 

 in their essential aspects; that means to select. And selection 

 implies the possession of theoretical principles of classification 

 — definite criteria as to what is essential and what is not. 



In collecting facts about law and legal institutions the 

 following considerations have afforded the guiding principles. 

 In every community there exist fundamental rules which 

 must be observed. The infraction of these rules is a lurking 

 temptation, and there are always individuals who succumb. 

 x^s a preventative, or reaction, to this there exist some mea- 

 sures of restrictio:._ and redress; broadly speaking, some 

 restraining forces. To discover the rules, the possibilities of 

 infringement, the restraining forces, to classify them, follow- 

 ing as closely as possible the conditions of native social life, 

 and to find out the natives' own point of view in these 

 matters — all this constitutes the ethnographer's task under 

 one heading of law. 



Broadly speaking, the most elementary of the social rules 

 are identical in all societies: they protect a person's body 

 from injury and they guarantee a certain amount of personal 

 freedom. Murder, bodily hurt, assault, rape, and other 

 attem.pts on person or liberty are considered to be wrongs in 

 all human communities at the top as well as the bottom 

 of the scale of development. Again, there are everywhere 

 some rules protecting a man s personal property. The in- 

 fringement of any of these rules is resented by the injured 

 person and by the social group to which he belongs — family, 

 clan, village. 



This is one source of criminal law. The other springs 

 fro}^ the public resentment which follows the violation by 

 the individual of the essential rules which constitute the given 

 social structure, as, for instance, the rules of exogamy or of 

 religion, etc. 



These facts constitute the basis of criminal law. In this 

 broad sense the conception can be applied to native societies, 



T 



