What makes defining “law” difficult (in Hoebel’s words, “like the quest for the Holy Grail”)? Choose some examples of practices Miner and Malinowski discuss from Nacirema and Trobriand societies, and explain why these may or may not qualify as being “legal.”
HIST 285 / AFS 270 | SPRING 2019
Hoebel decides that it is difficult to define the law by pulling from Hohfeld, and explaining that in the use of the law, we blend and confuse things that are legal and non-legal. I addition, “a definition is merely an expression of the acknowledged attributes of a phenomenon or concept,” which makes law impossible to define. Hoebel argues that the law does not exist, just like the Holy Grail, so any attempts to define law would be futile, just as each quest. It is impossible to truly define the law because there is no one guiding principle behind all human actions, so actions that are intolerable in one society may not be able to be accurately transferred to another society. In “primitive law,” the traditional examples are not viewed with the same reverence as Western law, meaning that indigenous populations laws are not as “credible” when compared to the law from colonizing powers during colonialism. When reviewing Miner and Malinowski, it is possible to view these as two different scenarios. In Miner and the Nacirema, many of the practices described are not legal in practice because they aren’t rooted in what we traditionally view as law, but as ritual. Miner frequently uses the word ceremony and ritual, and the difference is that law is known by all people, not ritualised and relegated to secrecy as seen with the Nacirema. For example, the lati pso ceremonies and practices with the witch-doctor, are not accessible to everyone, which makes it less of a legal issue and more of cultural practice. The practice as a social norm was not legal with the Nacirema in accordance to Hoebel’s definition, outside of the magical practitioners, who were the only ones who could practice, because it was not something all could participate in or were forced and coerced through force to do so. In Malinowski’s example of the Trobriand society, the example of the canoe is a simple example of legal because there is a clear delineation between the owner and the crew, and even down to the transfer of ownership of the canoe. The use of the canoe and the status of each member is dedicated and enforceable, which would apply under Hoebel’s definition of a legal social norm. While there are moral and economic obligations in place, the Trobriands were bound together through their social norms and reciprocity or repayment were reactions when social expectations were not met, leading to legal status.
Hoebel discusses the complexity of defining a substantial definition of ‘law.’ Using Cardozo’s definition of law, “a principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged,” Hoebel argues that this is a more elaborate attempt when it comes to tackling the accuracy of law. Hoebel then proceeds to identify that primitive law, in fact, is very similar to what ‘our’ definition of law is. He states that even though the legal system and use of courts is completely contrasting from what we are accustomed to, primitive law has many complex forms that have been classified as legal systems.
Malinowski seems to agree with Hoebel in the same sense that he too admires primitive law for its complexities. He notices that primitive law is usually associated with spontaneity, but attests that “no society can work in an efficient manner unless laws are obeyed ‘willingly’ and ‘spontaneously.'” In doing so, Malinowski essentially forms a connection between modern law and primitive law, which he notes has previously gone unnoticed by other anthropologists. He also argues that the previous studies of primitive law have been very handicapped and have not been studied first hand. This reiterates the notion of what people believe to be ‘primitive law.’ By viewing the different legal systems with an outsiders perspective, the idea of primitive law becomes more generalized, rather than actually understood.
Miner sheds light on the many rituals and ceremonies practiced by the Nacirema’s. However, as he does not present this information in a way that can be understood by the readers due to the fact that it lacks the idea of being able to be thought of as ‘legal.’ In my opinion, Malinowski was able to make a connection between modern law and the primitive laws of the Trobriand society, which would allows it to be seen in a more ‘legal’ sense. As the Nacirema’s practices are archaic in terms of a modern perspective, it is harder to see their practices as ‘legal.’ Despite this, I agree with Hoebel’s statement that “private law predominates on the primitive scene.”
In my view, law is incredibly difficult to define because it is inextricably wound up with notions of culture and custom. Indeed, as Hoebel states, it is, “ . . . but part of the social web. Its strands flow . . . into the total fabric of culture and it has no clear-cut edges” (Hoebel 19). Something that is naturally fluid — and that necessarily means something fundamentally different in each culture where a similar institution arises — appears to be altogether inappropriate to define. Yet we see a semblance of “law” arise in every society: there is generally a web of binding obligations between individuals that, when broken or forgotten out of laziness, appears to bring some punishment (whether social, psychological, or physical) down onto the perpetrator of such laziness. But what is this mechanism concretely? “Law” in the Anglo-American sense is not law in the “primitive sense.” Enactments of law certainly exists in both contexts, but law is entirely culturally dependent: any attempt at defining it appears ill-conceived, and somewhat trite. It is quite possible that, as Malinowski implies, law is centered around a sense of mutually binding obligations that are enforced through the threat of social ostracism or psychological punishment. Yet is this all that law is? Hardly.
Take one of Malinowski’s examples of “primitive law” as an example. In his piece, he explains that “The widow [in weeps and wails in ceremonial sorrow . . . because the strength of her grief affords direct satisfaction to the deceased man’s brothers and maternal relatives” (Malinowski 33). The suggestion here is that the act of weeping is legally enforced. In other words, the widow as a legal obligation to weep: it is her duty, as a result of her status, to perform the act, which provides a tangible reward (i.e. satisfaction) to the extended family of the deceased. Is this law or is this custom? Is it mere ritual? Is ritual law? Does the widow weep because she fears the powers of coercion, or does she weep because she knows such a practice is widely accepted? It is hard to say — one would need to engage her directly in conversation to know for certain. Such questions are central to the distinction between law and custom. A similar issue arises in Miner’s Body Ritual of the Nacirema: he playfully details the process of dental hygiene, noting that “holy mouth men” insert “magical materials” into “holes” (Miner 505). He describes the process as a sort of ritual, wherein individuals willingly subject themselves to pain in an effort to physically promote a cultural belief in the “ugliness of the body.” To me, this appears to be entirely ritualistic: there is no binding obligation to go see the “holy mouth men” (there is, however, an obligation to pay them if a visit is sought out). Dentistry is a purely customary phenomenon, induced by a societal belief. Law implies coercion and force — a visit to the dentist involves neither.
Hoebel compares the search for the definition of law to the search for the Holy Grail in that it will ultimately prove fruitless, as it simply does not exist. Hoebel cites several attempts to define law, all of which allow and disallow for many actions and traditions to fall beneath legal jurisdiction, regardless of whether they are actually features of law. There exists no singular definition of law, and all efforts to define it will lead nowhere, just as does the search for the Holy Grail. Law is not merely as simple as a set of rules or norms that are punishable; the state of something’s legality goes beyond any accessible definition currently available.
In the Trobriand society, women must remain under the supervision of men. This reads as a legal issue pertaining to guardianship. Though this might seem like a cultural tradition in the context of a society like that of the United States, it seems to be rooted more in law than in simple social norms. The ceremony of the yams strikes me as more of a cultural rite than a legal necessity, but Malinowski’s argument of reciprocity depends on the social/economic/otherwise benefits of operating a certain way in society. Thus, the brother’s relationship with his sister’s married family is not obviously law or obviously not law.
Though I am not sure if we are intended to write about the Nacirema with or without an understanding of they are, I am going to assume that we shouldn’t, and it is thus my belief that the ceremonies described in the Nacirema reading are not legal matters. They don’t seem to deal with matters of rights, but rather of ritual behavior.
According to Hoebel, the difficulty of defining law occurs when legal mechanisms are mistakenly conflated with mere custom in primitive societies. Law, Hoebel contends, does not have determinate boundaries, but rather is engrained within, and blurred by, the existing social web. The impulse, yet peril, then, is to perfunctorily apply traditional legal terminology onto primitive data only remotely comparable. The danger of doing just so, while averted through the judicious approach of Malinowski, can be seen through the practices of Hartland, Driberg and Seagle who exploit the definition of law by hastily fusing it with societal customs to varying extents. Hoebel, conversely, expounds that “privileged force, official authority, and regularity” are the three main elements that underscore modern jurisprudence.
Congruously, Malinowski explicates the instances of the Melanesian canoe and harvesting offerings in order to demonstrate how binding legal mechanisms may be easily, yet erroneously mistaken for arbitrary custom. Specifically, Malinowski contends that these two exemplars are, indeed, “legal” as they are grounded in reciprocity or the “give-and-take” principle intrinsic to binding mutuality in law. Ambiguity over the legality, however, may arise upon removing something like the harvest offerings out of their context. For instance, the fact that every man works for his sister and has to rely, consequently, on his wife’s brother may appear as an arbitrary set of relations; rather, they are illustrative demonstrations of legally binding forces.
Similarly, Miner introduces many instances of the “magic-ridden” rituals of the Nacirema that, viewed through the lens of Malinowski, prove similar exemplars of reciprocity, and, thus, binding legal mechanisms. Miner expounds that the latipso ceremonies were premised on the client gifting the guardian of the temple in order to gain admission, and, once again, the client gifting the guardian in order to leave after he or she had survived the ritual purification. In a sense, one can apply the judicious eye of Malinowski to the Nacirema to better comprehend how transactions such as gifting are economic acts that serve as legally binding forces rather than forms of arbitrary mysticism.
In Hoebel’s interpretation of law, he says, “we cannot take all traditional meanings straight.” This recognition of law as flexible and apparent in “similar but in different forms,” allows us to interpret the laws of cultures beyond our own in a culturally relative view. Hoebel, although he is talking about what he calls “primitive law,” recognizes the similarities between our modern legal system and encourages cultural relativity when he says, “we must neither blindly nor willfully force upon primitive data that are only relatively comparable the specific content of meaning associated with our terminology.”
Malinowski is a little less culturally relative, recognizing the laws of other cultures as “the various forces which make for order, uniformity and cohesion in a savage tribe. ” Like Hoebel, he also recognizes the similarities and importance of these societal rules saying, “they govern all the humdrum course of daily existence, as well as the leading acts of public life, whether these be quaint and sensational or important and venerable.”
Miner’s essay is satire meant to criticize the ethnocentric way anthropologist view other cultures and present their practices as ritualistic, savage, and abnormal. His representation of the Nacirema has little to do with legal procedures, but rather societal pressures and the American understanding of their cultural practices as completely normal.
The trickiness of defining law derives from the difficulty in distinguishing if individual motivations for behavior stem from internal motivation or cultural norms, or fear of retribution if laws are broken—as Hoebel wrote, “law is not sharply separable from all other forms of human action.” Scholars accustomed to institutionalized and authoritative legal systems have argued over the governmental functions of other cultures, particularly those they deem as “savage” or “primative.” Malinowski asserts that searching for analogous practices to Western notions of legal codes and enforcement in “savage” societies (such as Melanesians) is a fool’s errand—he describes systems like intra-societal trade as being governed by simple reciprocity and the expectation of both trading parties holding up their end of their agreement in order to maintain their mutually beneficial trading relationship. Malinowski is abhorrently diminutive in his description of informal Trobiand enforcement methods and the society itself, but his assertion is essentially true; formalized legal systems are not necessary for people to act ethically. Miner’s satire calls similar assumptions of institutionalized legality into question. His characterizations of “Nacirema” personal health customs are presented as actions that should be classified as illegal under an institutionalized legal system, yet they are entrenched in the everyday life. He writes of “holy-mouth-men” (his exoticized description of dentists) and that the the “use of these objects in the exorcism of the evils of the mouth involves almost unbelievable ritual torture of the client.” Just as anthropologists impose what they assume to be necessary legal restrictions on behavior in unfamiliar cultures, Miner points to actions that could just as easily be construed as harmful being fully accepted and celebrated in American culture; just as other cultures do not impose legal ramifications on common actions, we do not criminalize the painful aspects of dental work.
What makes the “quest” to define law, as Hoebel claims, near impossible, is one definition of it cannot be generalized to every culture. To formulate a singular definition of what is considered “legal” would blatantly ignore that each culture has nuances and practices that form a certain version of legality that is not necessarily universal. In the same breath as Hoebel’s quip about defining law above, Malinowski claims that “the minimum definition of law as ‘the body of rules enforced by an authority independent of personal ties’ seems to… be too narrow and not to lay the emphasis on the relevant elements,” and this claim encapsulates the trickiness of our desire to define law.
In Malinowski’s description of the Trobriand people, he discusses the hierarchy of the native canoe, and how this connection of individuals through a “definite system of division of functions and a rigid system of mutual obligations” shapes the Trobriand society. And through this relationship that is formed in gathering sustenance to ensure that they can survive, obligation to each other are formed in a hierarchical sense– children to parents, wife to husband, chief to commoners, in in these relationships law is both defined and remains dynamic as these relationships change. Malinowski call it “sociological dualism,” in which “two parties exchange services and functions, each watching over the measure of fulfillment and fairness of conduct over the other.” The Trobriand’s law is so dependent on the practices that sustain them that it could not be generalized to other cultures, even ones that appear very similar, because no two cultures have identical practices of sustaining themselves or structuring relationships.
In Miner’s satire focused around the nominal Nacirema, he brings the modern American reader (me!) outside his or her own view of American society. In the need to do this for us to see the relative absurdity of a dentist and hospitals, he highlights how relative our definition of law is. Most people would read this piece and think, “How inhumane– these actions should be illegal.” However, we, in a modern, Western society such as the United States, subject ourselves to such “torture;” Miner shows that our approach to what is considered lawful is both dependent on where we come from perspectively and our own preconceived schema of law, as defined by where we come from, and so on and so forth.
I couldn’t begin to define the practices of the Trobriand as legal or illegal, because I would be defining them by an American standard, not by a Trobriand standard, and the Trobriand could not begin to define the legality of the practices of the Nacirema because they are not in the proper cultural perspective.
Defining the concept of “law” is extremely difficult due to its subjective nature. “Law” is ever-changing, and the use of it heavily dependent upon the society examined. To begin, Hoebel provides numerous definitions of law to highlight the complexity of defining such an important, yet complex, concept. Specifically, Hoebel states, “The difficulties in achievement of a generally acceptable definition of law arise from excessive parochialism, and more importantly from the fact that law is but part of the social web” (Hoebel 18). Although the concept of “law” may have many fundamental similarities amongst societies–such as “the normative element; regularity; courts; enforcement” (Hoebel 23)–the impacts and details of “law” vary drastically. Societies greatly differ in many ways: for instance, the depositing of value onto certain objects, imposing specific hierarchies, and extent of adhering to the laws themselves.
Malinowski delves into the untraditional law practices of the Trobriand societies. In particular, the Trobriand relationship between marriage and law. Malinowski describes the widows role in mourning the loss of her husband with, “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” (Malinowski 34). In the Trobriand society, not following these practices would be considered breaking the law. On the contrary, doing these exact same practices in other cultures would not only be against the law but also seem very strange.
Trobriand society is heavily focused on the concept of reciprocity to maintain its laws. Continuing with the marriage example, Malinowski states, “Nor is this obligation without reciprocity…she will receive from his kinsmen a ritual payment; and at a later ceremonial feasts she is given more payments for subsequent services of mourning” (Malinowski 34). The Trobriand partake in this reciprocal relationship that forms laws to create a dependence on one another. For law and order to be maintained all individuals must contribute to others and the society in which they all live. Whether this is with their canoe, bundles of fish, or ritual payments, all individuals have lawful ties to the betterment and functionality of their society.
In a different case study, Miner examines the traditional practices of the Nacirema. Miner believes the Nacirema focus their labors on specific ritual activities. These activities are heavily focused on the human body while stressing the belief that “the human body is ugly and that its natural tendency is to debility and disease”(Miner 503). The Nacirema take serious steps to ensure the constant upkeep of their appearance, as they believe that this influences their power and position in society. Miner provides an example of “holy-mouth men”. Miner states, “The Nacirema have an almost pathological horror and fascination with the mouth, the condition of which is believed to have a supernatural influence on all social relationships” (Miner 504). In reality, the Nacirema are American people that practice these rituals in their everyday lives.
Miner is able to hyperbolize the actions of the Nacireman society so that they appear to be ridiculous or harmful to their way of life. Readers may see the Nacirema society as irrational with unreasonable priorities, but they actually exist within this society. Miner aims to illustrate how societal structures may seem unnatural to those on the outside, even though these structures may make sense to those that live in the society. Miner proves just how complex it is to standardize law when different cultures view their way of life as the best standard of living and others as simply illogical.
The difficulty that is responsible for the basis of the moral laws we used to cultivate law is found within itself. As law is determined by the majority through what they deem to be fair and just. This indubitably results in many discrepancies, as it is not necessarily clear and distinct what is fair and just. Even among majorities, there resides a plethora of sub-groups that may differ on the specificities of a law. In an example given by Miner within the Nacirema, where it is perfectly legal for a latipso, or a temple inhabited by medicine men (i.e. their version of a hospital), to perform intensive rituals that take their toll on the body. Normally, this would be seen by Western society as archaic, especially with depictions of mental asylums from the 19th and 20th century. Where the care provided for the inhabitants of such a place were given less than ideal conditions in which they were supposed to rehabilitate in. In similarity, the latipso does not grant their patients leeway either. As within the latispo, the only way to get better is to survive the healing rituals; however, it also stands to reason that only a healthy person would be able to survive such a harsh regiment of treatment.
In Western context the aforementioned example is a malevolent crime of humanity. As it unnecessarily results in the death of people that might possibly have survived provided they had been given proper treatment, rather than a series of strenuous rituals. In contrast though, in the Nacirema society it is viewed as perfectly legal for this to be common place. So much so is the latipso viewed as a source of healing, that adults will willingly go to it to seek treatment for their ailments. This is of course in contrast with children, who reluctantly go to such. An explanation for such could be that the children have not been conditioned to view the latipso as such a place yet. But, this could also be applied to Western children who view the doctor’s office in the same light. Maybe not as severely, since no Western children believes they will die there, only that it is scary in general. Therefore, the classification of legal or illegal resides in the majorities view; which is most commonplace found among the adults of society, rather than the children.
According to Hoebel, it is hard to define what law is for a number of reasons. First, because of the nature of language, Hoebel states that words that previously defined law “encompass new phenomena that are too different to be embraced in old words or concepts.” Hoebel is asserting that since words change over time, the way that we previously defined law may not adhere to current sentiments toward law, or as Hoebel states at “phenomena.”
In MIner’s satire on the Nacirema, the examples that Miner discusses are seen as rituals (and customs) rather than laws. This connects to how Hoebel states that law is hard to define because there are multiple approaches and perspective to it.
A discourse on regularity and enforcement is provided by Malinowski and the Trobriand society. In the society, men must supervise women, and since this interaction was enforced and was something that was regular, it qualifies as something that is “law.”
According to Hoebel, law is difficult to define because legal mechanisms are easily misguidedly interchanged with cultures in (‘primitive’) societies. To him, the definition does not have concrete boundaries, but is rather deeply-rooted in the existing social fabric. Because of this, the complexity of defining law becomes most apparent if you cannot decipher whether individual motivations for behaviour stem from personal stimulus, or fear of legal punishment if laws are broken.
Malinowski takes culturally relativist view, recognizing the laws of other cultures as “the various forces which make for order, uniformity and cohesion ” in a community. He basically insisted that a proper understanding of culture required viewing these various aspects in context, and thus recognizes the importance of these societal rules as he discusses the tradition surrounding the Trobriand canoe, and how this connection of individuals through a “definite system of division of functions… and mutual obligations” shapes the Trobriand society. In the Trobriand case, obligation to each other are formed in a hierarchy– children’s obligation to parents or a chief to his commoners and therefore law is defined but remains ever changing as relationships could change too. Miner’s satirical piece is my personal favourite, as it is meant to criticize the way in which anthropologists view other cultures and present their practices as savage and uncivilized. He brings attention to customs that could easily be construed as dangerous and therefore illegal because it is distinguished and recognized in American culture in that way. He basically simply asserts that we must not impose legal restrictions on behaviour in unfamiliar cultures like in the case of the Nacirema.
Hoebel’s states that it is very difficult to create a universal definition of law because of the drastic cultural differences that exist between societies. This is especially the case when analyzing the law practices of more “primitive” societies and comparing them to western societies. The level of consequence for particular actions seem to be almost completely culturally dependent. He writes, “Its strands flow without break into the total fabric of culture and it has no clear-cut edges.” The cultural dependency of law makes it virtually impossible to come up with a definition that is true for every group of people. Searching for a universal definition will prove fruitless, just like searching for the Holy Grail.
One custom described by Miner and Malinowski was that of a widow being required by law to publicly mourn her dead husband. The purpose of this was to give satisfaction to the husbands family. In return she receives ritual payments from them. This seems to be a very legal and contractural custom that is presumably agreed upon at the event of marriage. The involvement of money in this exchange seems to qualify it as more than just a cultural practice. The authors speak about another custom, in which fishermen have to give a portion of their fish to the people who live inland in exchange for vegetables. Neither side is able to refuse a trade. The authors state that this custom is economically binding as well as legally binding.
According to Hoebel, defining “law” is difficult due to multiple reasons, the first of which being that law is both culturally and societally dependent. The way law develops in one region or culture is likely to have been distinct from the way law develops in another, and often, the way one region/culture practices law may not even qualify as “law” somewhere else. Hoebel brings up the example of “primitive” societies, arguing that for a long time in the field of anthropology, it was assumed that such societies were not even capable of applying law to their daily practices.
Hoebel also brings up the dilemma of the courts, arguing that law is often inseparable from institutes of judgement. However, defining “courts” is also difficult. Is a panel of community members considered a court? Do judges need to define their role as their sole occupation for the courts’ judgement to be considered valid? Can societal approval count as a “court” itself?
Still, Hoebel also asserts that while the term “legal” may be difficult to define, it is not undefinable; to be undefinable would mean that law itself does not exist. Hence, the definition he puts forth is that law, essentially, is a system in which societal behavior is regulated and enforced by a socially-approved third party.
Working with this definition, we could view the practice of economic transactions among the Trobriand society as technically legal. Members from the coastal region trade fish for fresh vegetables with members from the inland region. Such an exchange is enforced by reciprocity—each fears the lack of one of the items, and so will take extra effort to ensure their half of the deal is upheld—as well as by culture and ceremony. Indeed, because of the ceremonial elements of the trade, each side can expect swift retribution/punishment from the other if they were to not deliver their share of the food to the other region. Hence, the “third party” in this case could be considered public and ceremonial obligations alongside a reciprocal need for nutrition. Both sides uphold their deal due to fear of enforcement by the breach of one of the above.
With this same definition, I would not, however, consider the practice of visiting “medicine men” as legal in Nacirema societies. For one, not everybody in the society has access to the practice: Miner noted that the “nearly torturous” ritual was one reserved for the rich, those who could afford to gift the medicine men extravagantly. Moreover, Miner discussed no true measure of enforcement by which community members would have to abide. While visiting the medicine men when sick is something societally approved—indeed, young children can be taken there against their will—there seem to be no serious repercussions other than potentially falling out of social favor by choosing not to visit such men.
In colonial Africa, a huge challenge faced by the colonial law makers was a transition from slave bearing states to abolitionists. What this case study shows, and what is further articulated by Hoebels is that law is at its core a social construct designed to facilitate living with other people. Therefore, he forwards the argument that lines between tradition, legality, and even social expectations can at times blur. This posed a difficult challenge for European colonizers as they attempted to abolish slavery in the African continent due to the pushback from local populations whose traditional kin structures were being challenged. What was tradition and legal in a “primitive law” was now deemed illegal. However, the concept of dependency was not something that was easily abandoned by the local population and so it took an extended amount of time for slavery to come to an end. In the meantime, it is interesting to see how the colonial legal systems responded to the pressure of local pushback, as it attempted to replace the indigenous laws and traditions with European ones. However, Malinowski speaks to the beauty that is imbedded within the old laws of the land. The way the morph and blend with tradition and social norms is a beautiful complex dance of millennia of social interaction and cementation. In essence, he describes the similarities of the social construct of law. How there are many more things that liken cultures, then drive them apart. That being said, there are social norms that vastly differ as can be seen in the practice of witch doctors, an example of a differentiating attribute from colonial powers. In conclusion, the lines between legality, social norms, and tradition can blur due to the synthetic nature of the social constructs. I think that these readings, although comparative in nature, serve to show that what we think may separate us as cultures actually serves as bonds that transcend time and societies.
Although defining law is difficult, Hoebel states that law is not incapable of definition. The challenge is to achieve universal consensus in the social web. English law, for example, “is nothing but the body of rules recognized and applied by English Courts in the administration of justice.” (23, Hoebel) The same applies for primitive law: historians cannot think with traditional legal concepts. Since there are no universal definition of law that governs all humans and societies, Hoebel describes law as the following: “A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting.” (28, Hoebel)
In Malinoswski’s example of the Trobriand society, the canoe holds significant importance because it is crucial to the people’s livelihood. As such there exists a system in which the relationship between the owner and the crew is defined, even relating to their friends, family and children. Malinoswki describes such a relationship as “sociological dualism, in which two parties exchange services and functions, each watching over the measure of fulfilment and the fairness of conduct of the other.” (26, Malinoswki) In Trobriand’s case, law is defined by practices that can provide them with sustenance.
Miner’s example of the Nacirema is different in that the society involves rituals and magical practitioners. Many of the practices are considered illegal in traditional law and downright inhumane. Yet the people of Nacirema follow these practices willingly in a masochist way. There are simply no legal systems in place in the traditional sense such that we cannot judge them a legal mindset. The power of the ritual and magical practitioners is that it helped the early man to achieve higher stages of civilization despite the crudity and irrelevance of magic. (507, Miner)
Defining law is difficult, because there are many contexts to law. Law can be defined as the legal guidelines to a community; while also meaning the behavioral habits deemed favorable by such society. Under law is the question of legality. The principal of legality states that law is not law until it is decided by the community it is law. Therefore, using this western thinking, traditional law would not consider the social practices of the community. Yet, in Nacirema, Miner alludes to the mouth being significant in behavioral tendencies of the community. In context of social law, the fascination of the mouth may serve a legal, because the community deems the mouth practices as necessary for healthy social interaction. In reference to Trobriand, the fishermen’s’ proceedings and privileges can possibly be surrendered to any possible family or friends. This community shows the perfectly legal status of demand and ultimate taking; however, there is always a form of repayment. To the western world, this form of ownership by the whole community is easier to comprehend by drawing parallelisms with socialism. Although socialism in the western context is state owned manufacturing, the only socialistic characteristic of boat sharing is universal legal borrowing. Therefore, these societies reveal the fluidity of the terms “legal” and “law.” Viewing these communities with the western context of law will definitely construe our understanding of foreign communities. Thus, viewing law as universal yet in different forms pertinent to such societies, is key to fully understanding other communities.