Note 20 — Chapter I · EXPOSITION OF THE PROBLEM AND METHOD
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In the treatises on primitive law and on family law such general concepts as "legal" or "law" are never explicitly defined. Perhaps such a definition is superfluous for a specialist, but I think that especially in the ethnology of primitive peoples precise concepts and explicit definitions are necessary. I may, however, mention the following places where there are some attempts at definition—
Post, l.c., i. sec. 3, pp. 8-10. The author gives a few remarks about the beginnings of law. He maintains it existed as Rechtsgefühl, feeling of legality, and was evolved through a system of juridical verdicts, given according to this sentiment. There were no legal norms at the beginning.—This passage is unsatisfactory, both because it does not give any strict definition and because it does not seem to be in agreement with the facts.
Kohler, l.c., p. 323. No strict definition given. Besides the author says that there is no organization (staatliche Organisation), no tribunal, and no executive among the Australian aborigines. This assertion may be questioned; compare below.
Durkheim, D.T.S., pp. 28 sqq. and 108 sqq. There are some interesting remarks bearing upon our subject; but there are no sufficiently clear definitions, especially none to suit the laws of quite primitive peoples.
Lord Avebury, l.c., chap. xi. pp. 464 sqq. No definition of what "law," "legal," should mean in very low societies, attempted. Law and custom are not discriminated. Some interesting remarks on punishment (pp. 495 sqq.) are not utilized in order to afford strict concepts.