Primitive Law by A. S. DiamondReview by: M. F. Ashley-MontaguIsis, Vol. 26, No. 1 (Dec., 1936), pp. 234-237Published by: The University of Chicago Press on behalf of The History of Science SocietyStable URL: http://www.jstor.org/stable/225098 .

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234 ISIS XXVI, I

contribution must be read, for its value lies in its great power of producing fruitful disagreements.

There are an unnecessarily great number of errors in the spelling of proper names.

The succeeding contributions to this volume are unexceptionally exemplary. There are two comprehensive essays from the pen of Professor J. L. MYRES, the first entitled The ethnology and primitive culture of the Nearer East and the Mediterranean world, and the second, which supplements the first, The ethnology, habitat, linguistic, and common culture of Indo-Europeans up to the time of the migrations. These essays could hardly have been better done, and only one thing is to be regretted in connection with them, and that is the absence of a select bibliography which would have much increased their value. In the next essay Professor C. F. JEAN gives us an exceptionally clear account of The East from protohistoric times to the period of Hellenization. There is a good short bibliography. The late T. E. PEET (I882-1934) then deals with Ancient Egypt from Predynastic times to the Persian period. There is a short bibliography. In what is virtually a book in itself (274 pp.) A. W. GOMME treats of The Greeks from the Bronze Age to the end of the Classical period following the Macedonian conquest. There is, unfortunately, no bibliography. In a final essay, Additional Notes on the East, Professor JEAN devotes himself to giving an account of Phoenicia from the 20th to the I3th century B.C. In a second part of the same essay India and Sumeria in the third millennium B.C. are dealt with in the light of recent excavations. This essay provides a valuable summary of the archaeological findings up to July I933. References are supplied in the footnotes. The volume is completed by an excellent index.

New York University. M. F. ASHLEY-MONTAGU.

A. S. Diamond.-Primitive Law. x+45I pp. LONGMANS GREN & Co. London, I935, 25/-.

T had looked forward to reading this book with some pleasure, for a work on primitive law has for long been a most urgent desideratum, a glance, however, at the description of the book printed upon its dust- jacket made it clear that if what was there promised were realised in the text such a work would now more than ever be urgently desirable. And so it has proven.

Mr. DIAMOND is a lawyer with a more than ordinary interest and equipment in law who has realised that MAINE'S belief in the religious origin of law (Cf. Ancient Law, i86i) will not, in the light of modern knowledge, bear examination. That MAINE'S views are still very much

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REVIEWS 235

alive today, in legal circles at least, is not to be wondered at, since wherever law is taught his Ancient Law is very rightly made part of the student's required reading. Mr. DIAMOND has therefore performed a very useful service in drawing attention to one of the major defects of the book. In a very delightful book entitled Civilization and the growth of law (MACMILLAN, I 93 5) by Dr. WILLIAM A. ROBSON which I read some months ago the author arrived at the conclusion that " law in early society is generally believed to have come directly from God," and, on the whole, Dr. ROBSON tends to support MAINE'S view of the early origin of law. MAINE, it will thus be seen, still has his supporters. Mr. DIAMOND seems to have been unaware of Dr. ROBSON's book; this is a pity for more reasons than one, for among other things Mr. DIAMOND might have learnt from it the existence of a number of sources of material which as it is he has left untapped. Dr. ROBSON is not altogether faultless in respect of his apparatus of authorities, but he has done as well as any one has a right to expect; Mr. DIAMOND, however, has failed to acquaint himself with the most obvious authorities in the field of primitive law, and in consequence he is from the very outset handicapped by a lack of knowledge which has proven fatal to his book. Apart from having overlooked such very recent (I934) fundamental contributions to the subject of primitive law as RADCLIFFE-BROWN's article in The encyclopaedia of the social sciences, and MALINOWSKI'S introduction to, as well as the text of IAN HOGBIN's Law and order in Polynesia, Mr. DIAMOND has overlooked by far the largest proportion of the source books dealing with primitive law. He does not even mention such an obvious book as HARTLAND's Primitive Law (London, I926). But for Mr. DIAMOND'S

purpose few authorities are necessary. Convinced that with a certain stage of economic development there is always more or less associated a definite stage of legal development, Mr. DIAMOND gives us a brief description of certain aspects of the laws of a few lower and higher hunting peoples, and also of a few agricultural and pastoral peoples, restricted chiefly to Africa and to Australia. On the basis of these descriptions he traces what he imagines to be the evolutionary stages in the develop- ment of law. Had he been writing at the beginning of this century, Mr. DIAMOND'S methodology might have been deprecated, but in our present year of grace we can only wonder where Mr. DIAMOND has been keeping himself, for he appears never to have been exposed to the notion that the principle of evolution is not a method, that there is no such thing as an " evolutionary method," and that the method which led to the discovery of this principle is the historical method, as the discoverer of the principle, CHARLES DARWIN, himself so perfectly demonstrated. Wherever Mr. DIAMOND may have been during the

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236 ISIS, XXVI, I

last thirty years, certainly he has escaped all appearance of contact with such notions for he is quite content to follow the old method of selecting whatever he wants from each people and in this way to build up a unilinear picture of the development of law. The original cause of Mr. DIAMOND'S

trouble appears to have been his acquaintance with HOBHOUSE, WHEELER,

and GINSBERG'S excellent study The material culture and social institutions of the simpler peoples. An essay in correlation, from which statistical study Mr. DIAMOND seems to have gained the impression that with certain " stages of economic culture,"-to quote the first chapter heading of the latter study,-certain cultural traits were invariably associated. Had he read the book carefully he would have discovered how incorrect such an idea could be. Had Mr. DIAMOND restricted himself to the study of the functioning of law and legal processes in a single primitive community and presented us with the facts instead of the eclectic generalizations which he has given us, his contribution might have been a very real one. HUXLEY once said that SPENCER'S idea of a tragedy was a generalization killed by a fact. Mr. DIAMOND, it is to be hoped, is not in similar case, for almost all his generalizations must fall ready victims to the facts. It cannot be too often pointed out that every social group is a law unto itself, and in order to be properly understood must be studied as a self-related and integrated whole, apart from all other considerations. To group societies according to their modes of life arbitrarily into lower and higher hunters, and so on, and in so doing be led to the belief that one may then legitimately compare all groups of lower hunters with one another as total social wholes or in respect of any particular trait, as, for example, against higher hunters, is perfect nonsense, as may be immediately shown by comparing any two such groups as, for instance, the Bushman and the Australian; both are lower hunters, that is to say that upon the purely economic plane there is a certain broad resemblance between them, but that is where the resemblance begins and ends, for culturally these two social groups differ very widely from one another; their cultures are different, and in so far as they are different in respect of their categories of thought, their language, their hunting implements, their social organization, their mythology and their religion, in so far will they differ in respect of the nature of their processes of law. What may be present in the one may not be present in the other, and in general may be relied upon not to be so present. Let me briefly illustrate this by comparing two lower hunting peoples, the Australians and the Andaman Islanders, in connection with their governmental processes. Among the first people we find an elaborately developed governmental structure, with a council of wise men who settle all important tribal business, and adjudicate in brawls,

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REVIEWS 237

in matters of incest, revenge parties, and sorcery. Among the Andaman Islanders there does not exist anything of this kind at all. For agricultural peoples the story is the same. In Africa, for example, we find trial by judge and jury, payments, and fines, and the codification of law in proverbs. In America, among the agricultural Zuni, for instance, there is no governmental body before whom disputes may be brought for settlement, all disputes must be settled in conversation. Here, indeed, are extreme differences between peoples on an economically equivalent level of development. Such examples could be greatly multiplied, but all this is extremely elementary, and had Mr. DIAMOND taken the trouble to look into the numerous anthropological sources available to him he might have made this simple but fundamental discovery for himself. From these sources Mr. DIAMOND would also have learnt that every people of whatever level of development makes a clear distinction between the secular and the religious, and in such sources he would have found much material in support of his thesis that law is secular in origin rather than religious.

I have already said sufficient, I hope, to indicate that this book is not a good book, for the approach of the author to his subject is methodologi- cally unsound, and his conclusions as a result are fallacious. Perhaps Mr. DIAMOND may be persuaded to try again.

With all its faults, however, Mr. DIAMOND'S book has some excellent points, his accounts, for example, of the laws of the Babylonians, Sumerians, Assyrians, Hittites, and Hebrews, are extremely good. His analysis of the Hebrew Code (Exod. XXI, 2,-XXII, I7), is a valuable contribution to our understanding of what is originally secular in it and what the result of priestly addition. This part of the book may be heartily recommended, but, alas, not that part of it which claims to deal with the law of primitive peoples.

New York UTniversity. M. F. ASHLEY-MONTAGU.

Olive M. Griffiths.-Religion and learning. A study in English Presbyterian thought from I662 to the foundation of the Unitarian movement. zoz+vIII pp. Cambridge University Press, I935. (I2/6).

Miss GRIFFITHS adds a noteworthy chapter to the rapidly growing literature on the relations between Protestantism and modern intellectual development. The particular merit of this work lies in its systematic exploitation of materials pertaining to Nonconformist, and more especially to Presbyterian, thought, which have hitherto been largely neglected. Of these sources, the manuscript lecture notes of students at Noncon- formist academies are especially useful since they demonstrate clearly

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