Die menschliche Gesellschaft in ihren ethno soziologischen Grundlagen Band 5

[Title Page and Publication Details]: Title page and publication details for the fifth volume of Richard Thurnwald's work on the ethno-sociological foundations of human society, focusing on the development and shaping of law. [General Table of Contents (Volumes 1-5)]: A comprehensive overview of the five volumes in the series, covering topics from representative life images and family structures to economics, state formation, and the legal systems of primitive societies. [Preface to the Fifth Volume]: Thurnwald's preface noting that the volume was completed while he was away from Germany, acknowledging Dr. W. E. Mühlmann's assistance in editing and indexing. [Detailed Table of Contents for Volume 5]: Detailed table of contents for the fifth volume, outlining chapters on the foundations of primitive law, public law, property, obligations, inheritance, crime, and legal disputes. [Introduction: The Sociological Perspective on Law]: Thurnwald introduces law as a function of social conditions and psychological states rather than an abstract set of norms. He critiques traditional distinctions between customary and statutory law, arguing that law must be understood within its cultural system. He identifies reciprocity as the fundamental socio-psychological basis of all justice, manifesting in forms like blood feuds, bride prices, and contracts. The section also discusses how political authority and economic shifts influence legal development. [Foundations of Primitive Law: Determinants and Religious Ties]: This section examines the determinants of primitive law, emphasizing that legal systems are embedded in the broader spiritual and technical state of a culture. Thurnwald argues against the idea that 'primitive' peoples lack law, noting that their legal norms are often intertwined with religious and moral prescriptions. He discusses the role of sacrality, oaths, and the lack of distinction between secular and divine law in archaic societies, referencing Greek, Roman, and Sanskrit concepts. [The Fixation of Law in Primitive Societies]: Explores how law is fixed and transmitted in societies without writing. Examples include the role of elders among the Aranda, the principle of equal retribution in the New Hebrides, and the 'laying down' of prohibitions (dodo) among the Kpelle of West Africa. The segment concludes by noting that archaic laws were often preserved in metrical or verse form to aid memory. [Das öffentliche Recht: Völkerrechtliche Ansätze]: This section explores the origins of international law among primitive tribes, distinguishing between legal relations within a kin group and those with neighboring sovereign entities or ethnic strangers. Thurnwald provides detailed ethnographic accounts of peace negotiations among the Bergdama, diplomatic protocols and hospitality rituals among the Aranda and Loritja of Australia, and alliance structures among the Ewe and various Ethiopian tribes. He emphasizes that even at low levels of social organization, symbolic actions, messengers, and specific conventions govern inter-group relations, war, and peace. [Bündnisverhältnisse und Verträge]: A discussion of specific alliance types and treaty-making processes. It describes the unique mutual assistance and succession rituals between the Taviese and Ho branches of the Ewe people, as well as the use of symbolic objects (like a ruler's staff) to guarantee safe passage among Ethiopian tribes like the Danākil and Gala. The role of blood brotherhood as a mechanism for strengthening alliances is also highlighted. [Blutrache: Bedeutung und Anlaß]: Thurnwald analyzes the institution of the blood feud (Blutrache) as a foundational element of primitive social life and the historical starting point for criminal law. He argues that blood feuds are not mere savagery but a biologically necessary mechanism for self-preservation in sovereign kinship groups lacking a central authority. The section details various triggers for feuds, including actual homicide, perceived sorcery, theft, and sexual offenses, noting how subjective feelings of grievance are interpreted as objective requirements for justice. [Die Schuldfrage und Stellung des Missetäters]: This segment examines how primitive societies handle questions of guilt, intent, and responsibility. Unlike modern law, primitive justice often focuses on 'success liability' (Erfolgshaftung), where the physical act or the kinship group is held responsible regardless of intent. However, Thurnwald notes emerging distinctions between accidental and intentional killing in some cultures, often leading to the creation of asylums or economic compensation (wergild) instead of blood for blood. The role of the clan as the primary unit of legal responsibility is emphasized. [Vollzug, Beilegung und Unterdrückung der Blutrache]: The final section of this chunk describes the execution of blood feuds and the various methods used to end them. It covers the transition from private vengeance to regulated systems of compensation (compositions) and the eventual suppression of feuds by rising central authorities (kings and the church). Thurnwald discusses the 'Peace of God,' the role of mediators like the Icelandic Godi, and how the concept of individual guilt replaced collective vengeance. He concludes that the spirit of the blood feud survives today in the relations between sovereign nations. [III. Sachenrecht: Grundeigentum]: This section examines the evolution of property rights, specifically land ownership, across various primitive and stratified societies. Thurnwald argues that land rights are determined by economic technology (hunting, herding, or farming) and social structure, moving from communal access in hunter-gatherer groups to complex systems of tenure, leasing, and class-based reservation in agricultural and ethnically stratified societies like the Nahua, Inca, and East African kingdoms. He emphasizes that 'private property' in these contexts often refers to the fruits of labor or specific usage rights rather than alienable land ownership. [Bewegliches Eigentum und Okkupationsrecht]: Thurnwald discusses the nature of movable property, including rights to hunting spoils, tools, and intellectual property. He notes that while food is often shared communally among hunters, personal claims arise from the creative act of making a tool or planting a tree, often reinforced by mystical or magical associations. The section also covers the use of 'taboo' markers and property signs to signal ownership and the distinction between possession and legal ownership in more complex Islamic and medieval contexts. [IV. Verbindlichkeiten: Das Prinzip der Vergeltung]: This segment explores the foundational principle of reciprocity (Vergeltung) in primitive law and economics. Thurnwald describes how social cohesion is maintained through symmetrical exchanges of gifts, services, and counter-payments, citing Malinowski's Kula and the Potlatch as examples. He argues that this principle of 'adequate reaction' governs not only trade but also social status, marriage, and the resolution of wrongs (blood revenge), serving as the precursor to formal contracts. [Der Vertrag: Formen und Symbole]: Thurnwald analyzes the evolution of contract forms from real contracts (based on symbolic actions) to verbal and eventually consensual contracts. In societies lacking central authority, contracts are secured through supernatural sanctions, oaths, and self-curses. He provides numerous ethnographic examples of symbolic acts used to seal agreements, such as spitting (Masai), using palm knots (Ewe), or exchanging staves, noting that the transition to written contracts allows for greater flexibility and the rise of political authority. [Kauf, Darlehen, Miete und Pacht]: This section details specific types of contracts including sales, loans, and leases. Thurnwald examines the role of traditional value carriers (salt, tobacco, cloth), the practice of 'earnest money' (Anzahlung) as a psychological root of real contracts, and the development of interest in societies like the Kiziba. He also discusses 'bride price' (Kaufheirat) as a complex economic negotiation and the transition from public-law feudalism to private-law leasing in East African cattle-herding societies. [5. Bürgschaft: Ursprung und Entwicklung]: Thurnwald provides an extensive analysis of suretyship (Bürgschaft), tracing its origins to the collective liability of the kin group (Sippenhaftung) and the role of the peace mediator in resolving blood feuds. He distinguishes between 'strict' suretyship (where the guarantor acts as a hostage or substitute for the debtor) and 'mild' suretyship (economic liability). The section explores symbolic forms of commitment like the handshake, the use of staves (festuca), and the transition from personal to property-based execution, drawing parallels between Germanic, Roman, Islamic, and various African legal traditions. [V. Der Erbgang: Voraussetzungen und Grundlagen]: This section introduces the fundamental prerequisites for inheritance law, emphasizing that it requires the existence of private property with economic significance. Thurnwald distinguishes between individual property and 'immortal' kinship or family property, noting that among primitive peoples, inheritance primarily concerns movable goods rather than land. He also discusses the cultural practice of destroying or burying a portion of the deceased's property and the typical waiting periods before distribution. [Die Vererbung bei Wildbeutern: Das Beispiel der Bergdama]: A detailed case study of inheritance among the Bergdama of South Africa, a hunter-gatherer society. Thurnwald describes how specific items like hunting tools, livestock, and clothing are inherited, while huts are typically abandoned or destroyed due to spiritual fears. A key rule identified is that men inherit from men and women from women, with the eldest child usually being the primary heir, though they often act more as a distributor of gifts to other kin. The section also covers the inheritance of the role of the camp headman. [Vererbung bei Feldbauern und in mutterrechtlichen Gesellschaften]: This segment contrasts inheritance patterns among American field farmers (Inca, Nahua) with the strict matrilineal (mother-right) system of the Trobriand Islanders as described by Malinowski. In matrilineal societies, children inherit from their mother, while status and certain goods pass from a maternal uncle to his nephew. The section highlights that land inheritance is often absent in these groups, focusing instead on movable goods and the succession of leadership roles based on merit within a kinship framework. [Das Erbrecht unter gemischt vater- und mutterrechtlichen Einflüssen]: An analysis of inheritance in Micronesian societies (Yap and Nauru) where patriarchal and matriarchal influences overlap. Thurnwald details complex rules where sons and daughters may both inherit, but certain gender-specific heirlooms (like jewelry) remain strictly tied to the female line. The text distinguishes between individual property (tools, boats), family property (houses), and communal/district property (meeting houses, fishing grounds), showing how inheritance is often a transition of usage rights rather than absolute ownership. [Die Vererbung bei Völkern mit patriarchalischen Herrenhöfen]: This section examines inheritance in patriarchal societies, specifically the Waschamba and groups in Cameroon. In these systems, inheritance is strictly tied to male relatives. Women and children are often treated as part of the inheritance mass themselves, with widows being distributed among the deceased's brothers. The heir of the weapons and livestock also assumes the deceased's debts, illustrating the link between property rights and social obligations. [Das Erbrecht bei Verselbständigung der Kleinfamilie und geschichtliche Ausblicke]: Thurnwald traces the transition from communal kinship property to individual land ownership in higher-order societies. He explains how the need to maintain viable economic units led to the practice of a single heir taking over a farm while compensating others. The section concludes with a historical overview of Germanic inheritance law, moving from the 'Gesamteigentum' (collective ownership) of the family to more complex systems influenced by feudalism and Roman law, noting the survival of gender-specific inheritance for certain items (Heergeräte and Niftelgerade). [The Concept of Crime in Primitive Societies]: Thurnwald examines the sociological foundations of crime and punishment in primitive societies, arguing that definitions of 'criminal' acts are relative to a group's specific social order. He contrasts modern legal views on murder and theft with indigenous practices like headhunting in Bougainville or revenge killings among the Maori, where such acts are often viewed as social obligations or matters of skill rather than moral failings. The section also discusses how social stratification introduces formalism into legal norms, shifting the focus from psychological guilt to external indicators and material compensation. [Civil Liability and Formalism in Tribal Law]: This segment explores the transition of criminal acts into civil liabilities in societies like the Kpelle of West Africa and medieval Iceland. In these systems, crimes such as murder or adultery are often treated as 'property damage' requiring material restitution (buße) rather than moral punishment. Thurnwald highlights the extreme formalism in Caucasian customary law (Adat), where the focus is not on finding the 'guilty' party in an abstract sense, but on identifying a 'scapegoat' who must pay compensation to restore social balance and honor. [Crimes Against Social and Sacred Order]: Thurnwald analyzes offenses against the social and sacred order, focusing on the Aranda of Australia and the Trobriand Islanders. He distinguishes between private wrongs settled via retaliation (jus talionis) and crimes against the community or the divine, such as sacrilege or breaking marriage laws, which are punished by the chief or elders. The text notes how social stratification influences punishment; for example, on the Trobriands, personal excellence that exceeds one's social rank is viewed as a punishable offense against the hierarchy. It also touches on the role of sorcery as both a crime and a tool of social control. [Theft, Adultery, and Property Rights]: A detailed cross-cultural analysis of theft and adultery as property-based offenses. Thurnwald explains that in many primitive societies, adultery is viewed as the 'theft' of a wife's utility from her husband. The section details the varying punishments for these acts—ranging from nose-cutting in the Caucasus to fines in brass rods in the Congo. He also addresses the 'dishonesty' of natives toward Europeans, interpreting it not as a lack of morality but as a clash between indigenous communal sharing norms and European concepts of exclusive private property. [The Concept of Penance (Buße) and Restitution]: Thurnwald defines 'Buße' (penance/restitution) as a private agreement between parties to settle a wrong, distinct from 'Strafe' (punishment) imposed by a central authority. He traces the evolution of Wergeld (blood money) as a mechanism to end blood feuds. The text examines how religious systems (Islam, Zoroastrianism, Christianity) merged secular restitution with spiritual atonement (Sühne), and how social rank eventually dictated the scale of these payments. The psychological transition from the 'manic' state of the blood feud to the 'depressive' state of seeking reconciliation is also explored. [Atonement (Sühne) and the Sacred Law]: This section focuses on 'Sühne' (atonement), where the violation of social norms is seen as a breach of the cosmic or divine order. Thurnwald describes 'automatic reactions'—supernatural consequences like illness or death that follow the breaking of a taboo or a secret. Examples include the use of 'Iga' magic in New Guinea to punish thieves and the 'Tschina' prohibitions in Loango. The role of the community in 'helping' these supernatural sanctions along (e.g., executing those who see sacred objects) is discussed as a means of maintaining the group's spiritual safety. [Outlawry and the Loss of Peace (Friedlosigkeit)]: Thurnwald discusses 'Friedlosigkeit' (outlawry/loss of peace), the total exclusion of an individual from the legal and social protection of the group. In primitive societies, where the individual exists only through the collective, being cast out is often a death sentence. The text traces this from simple hunter-gatherer groups to the complex 'Acht' (ban) of Germanic law and Icelandic sagas. It details how outlawry evolved from a religious act of purification to a political tool involving the confiscation of property and eventually being replaced by formal state punishments. [The Institution of Asylum]: The segment examines the religious and legal roots of asylum. Thurnwald argues that asylum originates in the 'numinous' quality of certain places or persons (altars, temples, chiefs, or even women) that halts the normal course of human affairs, specifically the blood feud. He provides examples of 'cities of refuge' in the Bible, Hawaii, and Africa. The function of asylum is seen as a necessary corrective to the rigidity of primitive law, providing a 'breathing space' for mediation and the conversion of blood vengeance into material compensation. [The Evolution of Punishment (Strafe)]: Thurnwald explores the transition from private retaliation to state-imposed punishment ('Strafe'). He analyzes the 'mirror punishments' (Spiegelstrafen) of the Code of Hammurabi, where the offending body part is mutilated, and the sophisticated penal theories of ancient China. The text contrasts the Confucian ideal of moral education with the 'Legalist' approach of Shang Yang, who advocated for strict, inevitable punishments to maintain state power. The segment highlights how the rise of central authority transforms crimes from private injuries into offenses against the public order. [Legal Procedure and Evidence in Primitive Societies]: This final segment of the chunk details the actual conduct of legal trials and the nature of evidence in non-literate societies. Thurnwald describes the role of the chief or elder as an arbitrator rather than a judge with absolute power. He emphasizes that primitive law lacks an objective concept of 'truth' or 'justice' in the modern sense, relying instead on subjective testimony, oaths, and ordeals (such as the poison probe or hot water test). Detailed ethnographic accounts of trials among the Kpelle and the Bafioti of Loango illustrate the ceremonial and magical nature of these proceedings. [Das Gottesurteil: Soziale und Geistesgeschichtliche Grundlagen]: Thurnwald examines the social and psychological foundations of the ordeal (Gottesurteil). He argues that it requires a certain level of political development and specific mental associations, viewing it as an extension of omens and oracles used to resolve conflicting claims when logical deduction fails. He notes its prevalence in Africa and the Malay world as a result of external political structures meeting traditional mindsets. [Ethnographische Beispiele von Vorbedeutungen und Gottesurteilen]: This section provides diverse ethnographic examples of mystical causality and early forms of ordeals. It covers Australian Aboriginal beliefs regarding totems and insect omens, smoke ordeals among the Namib Bushmen, wrestling matches as dispute resolution in Canada and among Eskimos, and the use of poisonous insects in the Amazon region to prove innocence or show remorse. [Das Gottesurteil als Beweismittel im Gerichtsverfahren (Afrika)]: A detailed analysis of African judicial ordeals, focusing on how they integrate with belief systems regarding the soul and sorcery. Examples include the Haussa and Nigerian practices for identifying soul-stealers, the use of animal ordeals among the Lango, and the elaborate fire and poison probes used by the Wahehe and Akikuyu to identify sorcerers or thieves. It highlights the role of the 'Oberlecker' (master licker) in fire ordeals and the psychological pressure applied to suspects. [Moderne Adaptionen und Philippinische Ordale]: This segment describes a unique case where a European (Roscoe) substituted a traditional poison ordeal with an electric battery to elicit a confession. It then transitions to the Nabaloï-Igorot of the Philippines, detailing their use of chicken gallbladders, head-piercing (blood) probes attributed to the sun, wrestling, and rice-chewing tests as evidentiary tools in court. [Gottesurteil, Machtbesitz und Korruption in Westafrika]: Thurnwald explores the intersection of judicial ordeals and political power among the Kpelle and other West African groups. He describes the role of the Ordal-Leger (ordeal-setter) and how the king's 'mana' or magic is used to ensure the ordeal's efficacy. The text details various methods like the sasswood poison, rod-divination (Ruten-Ordal), and boiling oil tests, while noting how these systems are often manipulated by authorities to increase the king's wealth or labor force. [Verfallserscheinungen und Historische Entwicklung des Gottesurteils]: This section discusses the decline and historical context of ordeals. It describes the 'suction' and 'nail' probes of the Ukinga and the fire/water probes of the Somali and Galla, noting increasing skepticism and Islamic opposition. It then traces the ordeal through ancient Indian, Semitic, Greek, Roman, and Germanic cultures, highlighting the shift from mystical proof to the judicial duel and eventually to evidence-based law. [Der Eid: Wurzeln, Symbolik und Eideshelfer]: Thurnwald analyzes the oath as a moral obligation rooted in the 'eventual curse.' He discusses its development from primitive magic to a social security mechanism for trust. The text covers the symbolism of oaths (weapons, animal skins, handshakes) and the institution of 'Eideshelfer' (compurgators), who originally served as a show of social power rather than as factual witnesses. [Reinigungsseid, Zeugeneid und Treueid]: This segment defines different types of oaths: the purgatory oath (Reinigungsseid) used to clear one's name from mystical 'pollution,' the late-developing witness oath (Zeugeneid), and the loyalty oath (Treueid) essential for vassalage and contracts. It also discusses the consequences of perjury (Meineid) as a religious crime and the symbolic punishments associated with it in Germanic and Arabic traditions. [Der Zweikampf: Vom Sport zum Gottesurteil]: Thurnwald examines the evolution of the duel from a regulated, often non-lethal method of 'venting' personal grievances (as seen in Australia and among the Eskimo) to a transcendental 'judgment of God.' He traces its history through medieval chivalry and judicial duels, noting that the lethal character was often a later addition to what was originally a more ritualized or sporting contest. [Gerichtspersonen und Systematische Gerichtsbarkeit]: The final section of this chunk discusses the emergence of judicial officials in stratified societies. It contrasts the personalized, power-oriented justice of East African kingdoms (Uganda, Ruanda), where judges are influenced by gifts and social standing, with the highly organized, bureaucratic legal systems of the Incas in Peru and the Aztecs in Mexico, which featured professional judges, systematic inspections, and codified laws. [VIII. Die Bedeutung der Herrschaft für das Recht, und die „Gerechtigkeit“]: This section examines the influence of political authority and leadership on the development of law and the concept of justice. Thurnwald discusses how the expansion of political units leads to systematic legal frameworks, using examples like the Kpelle of West Africa and the Chinese patriarchate. He argues that in many archaic societies, law is primarily focused on material compensation (civil law) rather than punishment (criminal law), and that 'justice' is often tied to the moral and ritual conduct of the ruler, which is believed to ensure prosperity for the community. [Schlussbetrachtung: Recht, Gesellschaft und Kultur]: In the concluding remarks of the volume, Thurnwald synthesizes his theory that law is an emergent property of social structure and cultural psychology. He describes the 'self-domestication process' of humanity, where the systems created by humans (like law and technology) eventually impose a compelling order back upon them. He emphasizes that law possesses an independent traditional power through logical systematization, but remains fundamentally rooted in the values provided by the social organization. [Abkürzungen und Literatur-Verzeichnis]: A comprehensive bibliography and list of abbreviations for the entire volume. It includes hundreds of academic references spanning ethnology, legal history, sociology, and anthropology, citing authors such as Boas, Frazer, Kohler, Lowie, Malinowski, and Rivers, as well as numerous regional studies from Africa, the Americas, Asia, and Oceania. [Verzeichnis der Zeitschriften-Abkürzungen]: A specialized list of abbreviations for the scientific journals and serial publications cited throughout the work, such as 'American Anthropologist' (A.A.) and 'Zeitschrift für Ethnologie' (Z.E.). [Register (Index)]: A detailed subject and ethnic group index for the volume. It provides page references for specific legal concepts (e.g., Asyl, Blutrache, Diebstahl, Eigentum) and various ethnic groups (e.g., Aranda, Bergdama, Kpelle, Pangwe). [Verlagsanzeigen und Gesamtübersicht]: Publisher's advertisements and a series overview for Thurnwald's multi-volume work 'Die menschliche Gesellschaft in ihren ethno-soziologischen Grundlagen', along with other related ethnological titles from Verlag Walter de Gruyter & Co.