A.S. Diamond - Primitive Law, Past and Present

Routledge Library Editions

PRIMITIVE LAW PAST AND PRESENT

ANTHROPOLOGY AND ETHNOGRAPHY

Routledge Library Editions
Anthropology and Ethnography

THEORY OF ANTHROPOLOGY

In 10 Volumes

PRIMITIVE LAW PAST AND PRESENT

A S DIAMOND

First published 1971

Reprinted in 2004 by
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1971 A S Diamond

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British Library Cataloguing in Publication Data
A CIP catalogue record for this book is available from the British Library

Primitive Law Past and Present
ISBN: 978-0-415-33063-3

Miniset: Theory of Anthropology

Series: Routledge Library Editions Anthropology and Ethnography

Printed and bound by CPI Antony Rowe, Eastbourne

PRIMITIVE LAW, PAST AND PRESENT

PRIMITIVE LAW PAST AND PRESENT

A. S. DIAMOND

METHUEN & CO LTD
London

First published 1971 by Methuen & Co Ltd
11 New Fetter Lane, London, EC4
1971, A. S. Diamond

SBN 416 66080 0

Distributed in the USA
by Barnes & Noble Inc.

This book began as a third edition of Primitive Law.. But thirty-five years have elapsed since the first edition was published, and the second was little more than a copy of the first, and I hope that during the intervening period I have bettered my knowledge of the subject. In the result, although the theme is much the same, and the method and conclusions are not in essence different, there is hardly a sentence in common between this and the first edition, though I have taken a few pages from my Evolution of Law and Order (London, 1951).

The chief differences are in the volume of the evidence presented of the legal usages of peoples of recent times, and the more detailed references to authorities, especially the skilled monographs of social anthropologists, of a quality which was still new in 193 5.1 have also added much in the way of description of the economies of all these peoples. Less space is devoted to the examination and criticism (hardly necessary in these days) of the hypothesis, made famous by Sir Henry Maine, that law is derived from pre-existing rules of conduct which are at the same time legal, moral and religious in nature, and that the severance of law from morality and religion from law belong only to the later stages of mental progress.systems. In effect this is also a division between the laws of literate and pre-literate peoples, and this has a certain importance of its own.

Because of these changes I have altered the title of the book to Primitive Law, Past and Present. I have retained the term primitive partly because the book is known under this name, and partly because I know of no satisfactory substitute. Professor Max Gluckman, in his Politics, Law and Ritual in Tribal Society (1965), writes (p. xv): By tribal society I mean the kind of community which was once described by the term primitive society, a term now rightly rejected. I would venture to doubt, on the other hand, whether there are any expressions used by social anthropologists more inconsistently or with vaguer meaning than tribe and tribal, and to think that if the term primitive is now under a cloud, the same cloud has extended itself to those expressions. I hope it will be seen that in this book the term primitive is used with a precise meaning.

I have been at pains, in a book intended for the lawyer and the anthropologist, to aim at simplicity, and to avoid as far as possible both the technical terms and analyses of the lawyer and the sophisticated language and conceptions of the modern British social anthropologist, which serve to render each unintelligible to the other, and especially the latter to the former.

The statement of a rule or custom is usually in the historic present, whether it still exists or not, but unless the contrary is indicated the dates are those referred to in the authorities cited.

I have taken the opportunity to correct some errors of fact and, on better knowledge, modified my views of the evidential value of one or two ancient documents, but I have no doubt that in a book of this kind it is impossible to avoid error. Indeed, I sometimes doubt if anyone will ever have sufficient knowledge to write such a book, so vast is the volume and variety of the phenomena of human societies and legal systems.

Primitive Law. 1st edn, London: Watts & Co., 1935. 2nd edn, London: Longmans, Green & Co., 1950.

A.L. 14, 16 and passim.

(All other references in the book are in full)