In July 1888, at the end of his first day visiting a Pacific island, Robert Louis Stevenson sat on board the yacht Casco, writing up his journal under the gaze of a crowd of silent Marquesans: “A kind of despair came over me, to sit there helpless under all these staring orbs, and be thus blocked in a corner of my cabin by this speechless crowd: and a kind of rage to think they were beyond the reach of articulate communication, like furred animals, or folk born deaf, or the dwellers of some alien planet.”Footnote 1 Yet despair was balanced by excitement at entering a new world: “But I was now escaped out of the shadow of the Roman empire, under whose toppling monuments we were all cradled, whose laws and letters are on every hand of us, constraining and preventing. I was now to see what men might be whose fathers had never studied Virgil, had never been conquered by Caesar, and never been ruled by the wisdom of Gaius or Papinian.”Footnote 2 The verbs “blocked” and “escaped” focus the contrasting feelings of entrapment and liberation, frustration and elation, that Stevenson expresses in these two paragraphs. The crush of Polynesian bodies, physically trapping him in the enclosed space of the cabin, is matched by the mentally “constraining and preventing” force of Roman civilization, and Stevenson's sense of being simultaneously confined by the first and released from the second gives the scene its particular energy and tension.
This scene of first contact announces Stevenson's anthropological project: to discover “what men might be” who had never been subjected to the influence of the Roman Empire.Footnote 3 In both his travel book, In the South Seas (1896), and his study of Samoan politics, A Footnote to History (1892), Stevenson frequently organized his investigations into Pacific societies around a comparison of Roman and non-Roman cultures, focusing particularly on the topic of law. In this, his anthropological practice resembled the method of comparative jurisprudence developed by the nineteenth-century British jurist Henry Sumner Maine. Having encountered Maine's work in his student days, Stevenson later devised his own style of anthropological inquiry through the comparison of legal cultures, which paralleled Maine's approach in using Roman law as its main point of reference but diverged from Maine in offering more challenges to the racial hierarchies of Victorian progressivist thought.
Maine's and Stevenson's concerns with law were not typical of Victorian anthropology, which tended to focus on religion, myth, and folklore. Julia Reid has shown how the comparative study of religions in the “founding text” of Victorian anthropology, E. B. Tylor's Primitive Culture (1871), influenced Stevenson's early anthropological interests, and how, during his Pacific years, Stevenson engaged with his friend Andrew Lang's Tylorian analyses of myths and folktales.Footnote 4 These interests fed into Stevenson's fiction and poetry, particularly Ballads (1890). However, his Pacific nonfiction displays a legal orientation that does not derive from Tylor but has much in common with Maine's approach to ancient and primitive societies. Like Maine, and like no other British anthropological writer until that time, Stevenson believed that one could best understand a society by understanding its laws, or, more important, its “jural conceptions”—that is, the particular ways of thinking about obligations, rights, and authority that defined relations between members or units of a society.Footnote 5 For both Stevenson and Maine, legal ideas and institutions unlocked cultures and mentalities. A comparison of the two writers illuminates a particular aspect of Victorian anthropology, which lay outside the mainstream of contemporary anthropological thinking, but whose significance would become apparent with the development of social and legal anthropology in the twentieth century.Footnote 6
I. Roman Law and Anthropological Inquiry
Stevenson's account of his arrival in the Marquesas is one of many instances in his work where Pacific travel is presented as a movement beyond the boundaries of the Roman Empire. In The Wrecker (1889), Loudon Dodd watches schooners from the Pacific islands enter San Francisco harbor, visitors from “another world” he has yet to enter: “I stood there on the extreme shore of the West and of to-day. Seventeen hundred years ago, and seven thousand miles to the east, a legionary stood, perhaps, upon the wall of Antoninus, and looked northward toward the mountains of the Picts. For all the interval of time and space I, when I looked from the cliff-house on the broad Pacific, was that man's heir and analogue: each of us standing on the verge of the Roman Empire (or, as we now call it, Western civilisation), each of us gazing onward into zones unromanised.”Footnote 7 The concept of Romanization was developed in the late nineteenth century by the German historian Theodor Mommsen, who described the spread of Roman culture through the Empire, and by the British archaeologist Francis Haverfield, who theorized a process of reception and assimilation whereby provincials were transformed into Romans.Footnote 8 Mommsen and Haverfield were largely concerned with the adoption of Roman material culture and the political legacies of Roman conquest. In contrast, Stevenson was more interested in the mental legacies of the Roman Empire. He believed that Roman ways of thought had determined the characteristic qualities of the Western mind, with both enabling and disabling effects. When his Tahitian poem “The Song of Rahéro” was poorly received in England in 1891, he claimed this was because “the average man at home cannot understand antiquity; he is sunk over the ears in Roman civilisation; and a tale like that of ‘Rahéro’ falls on his ears inarticulate.” In this formulation, Stevenson's English readers had become what the Marquesans had seemed to him in 1888, “folk born deaf.” They could not hear what the poem was saying to them, because they were unable to understand “savage psychology,” so different from the modern psychology shaped by Roman civilization.Footnote 9
It is well known that Stevenson used a “Highland comparison” to help him understand and communicate with the Pacific islanders he met on his travels.Footnote 10 No less important was the Roman comparison he used to help readers at home appreciate the difference of Pacific cultures. Both the Highland and the Roman comparisons derived from Stevenson's position as a Scot with, as it were, one foot on either side of the “Roman Wall” that marked the frontier of Roman civilization.Footnote 11 In Stevenson's writing on Rome there is always the sense of a boundary, which expresses itself in a thoroughgoing cultural relativism. What we call “human nature,” he argued, is merely a product or effect of “the Roman Empire, since the Romans founded it and made our European human nature what it is.”Footnote 12 The same “human nature” might not exist in the “zones unromanised,” for Western culture and subjectivity were the products of a particular time and place. He told a newspaper interviewer in Auckland in 1893, “You must remember that we are only the decayed fragments of the Roman Empire, from which we derive all that we value ourselves upon, and I believe that we can never be so well employed as in endeavouring to understand as well as we can the original meaning of that system of things in whose ruins we live.”Footnote 13 Stevenson seems very close here to Michel Foucault's concept of the “episteme” as a bounded system of knowledge and ideas creating horizons of thought, feeling, and belief.Footnote 14
Standing on the threshold of “that system of things” in the Marquesas, he thought of it primarily in terms of law and government. Of the four figures used to metonymize Roman civilization in the first chapter of In the South Seas, one (Virgil) was a poet, one (Caesar) was an imperial ruler, and two (Gaius and Papinian) were jurists. It is perhaps surprising that Stevenson, a writer, included only one literary figure in this list, but the emphasis on Rome's political and legal legacy bears out a comment by his biographer, Graham Balfour, that “as an influence, Rome counted to him as something very much more than a literature—a whole system of law and empire.”Footnote 15 Confirmation of his belief that Roman law had shaped modern Western society was close at hand in Edward Gibbon's Decline and Fall of the Roman Empire, which the Stevenson party was reading on the Casco.Footnote 16 In chapter 44, titled “Idea of the Roman Jurisprudence,” Gibbon asserted that “the public reason of the Romans has been silently or studiously transfused into the domestic institutions of Europe.”Footnote 17 Gibbon's idea that “public” and “domestic” realms were linked through the shaping agency of Roman law is echoed in Stevenson's image of the Western subject “cradled” under Rome's “toppling monuments.”
Gibbon was a stimulus in 1888–89, but Stevenson's interest in Roman law went back to the days of his legal studies at Edinburgh University between November 1871 and July 1875. The Scots law he studied was more closely affiliated with Roman (Civil) law than with English (Common) law.Footnote 18 As Lord Mackenzie wrote in his Studies in Roman Law, “In Scotland a knowledge of the Roman law has always been regarded as the best introduction to the study of the municipal law. No person can be admitted a member of the Faculty of Advocates without undergoing an examination in both laws.”Footnote 19 In 1874, Stevenson decided to attend a course of lectures by the international Roman Law specialist, Rudolf von Jhering, at Göttingen, reasoning that “the professor is to Law what Darwin has been to Natural History, and I should like to understand Roman Law and a knowledge of law is so necessary for all I hope to do.”Footnote 20 When the plan fell through he was bitterly disappointed; at Göttingen, he believed, “I should have become a good specialist in law, and how that would have changed and bettered all my work, it is easy to see.”Footnote 21 The references to “all my work” and “all I hope to do” show that Stevenson, who had already decided to pursue a literary career, thought of his legal education not only in terms of professional qualifications but more broadly as the foundation for certain kinds of literary work. As he continued to work for his law degree in Edinburgh, his legal studies and writing projects ran side by side.Footnote 22 Stevenson passed his Advocates’ exam in July 1875, and his mother recorded that he was “complimented on his knowledge of [Roman] Civil Law.”Footnote 23
As well as including a strong grounding in Roman law, Stevenson's Scottish legal education incorporated a comparative dimension lacking from other, more monolithic legal cultures, because “Scots law with its European and civilian [Roman] background—latterly influenced by English law—stands … at the crossing of two main highways of legal thought.”Footnote 24 This was one of many ways in which the mixed influences of Scotland's colonial history helped Stevenson to make sense of the multiple frames of cultural reference juxtaposed by nineteenth-century imperial expansion: it gave him the habit of comparative thought, which pervades both In the South Seas and A Footnote to History. When contemplating different styles of government, the relation between law and custom, or alien legal institutions such as the tapu, Stevenson compared what he found in the Pacific with what he already knew, generally using the Highland comparison to establish common ground and the Roman comparison to measure difference. This style of inquiry was known in the later nineteenth century as “the comparative method,” and its founder, Henry Sumner Maine, held very similar views to Stevenson about the role of Roman law in defining modern civilization.
Maine, a jurist and historian, was the author of Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas (1861). The book presented the development of Roman law as a bridge from the primitive to the modern worlds, “bearing in its earliest portions the traces of the most remote antiquity and supplying from its later rules the staple of the civil institutions by which modern society is even now controlled.”Footnote 25 Maine argued that Roman legal conceptions had “exercised perfectly enormous influence on the intellectual diathesis of the modern world,” because, “of the subjects which have whetted the intellectual appetite of the moderns, there is scarcely one, except Physics, which has not been filtered through Roman jurisprudence.”Footnote 26 He argued that Roman law had provided “a proper store of language and … an apparatus of appropriate logical methods” for the Western mind to grapple with a variety of subjects, including moral philosophy, the theology of the Western church, John Locke's theory of a social compact, and even Romantic visions of a state of nature.Footnote 27 Overall, Ancient Law proposed that Roman law had provided the foundation for intellectual inquiry in the Western empire and had therefore decisively shaped the modern world.Footnote 28 It is the same proposition that Stevenson repeatedly put forward in his Pacific nonfiction: that the Roman Empire, especially ways of thinking derived from its legal science, had determined the modern, Western episteme.
To emphasize the legacies of the Roman Empire was not unusual in nineteenth-century Britain; generations of classically educated Englishmen habitually looked to Roman and Greek culture, especially literature, for the sources of their civilization. At the turn of the twentieth century, comparisons between the Roman and British Empires became particularly common, expressing both imperial pride and anxiety. But the kinds of claims made by Maine and Stevenson about the importance of Roman law were unusual.Footnote 29 The jurist Frederick Pollock recalled that when Maine was a student at Cambridge University, “even the rudiments of Roman law were not then included in the ordinary training of English lawyers,” a deficiency Maine addressed in his essay “Roman Law and Legal Education” (1856).Footnote 30 In this work of “advocacy,” designed to persuade a resistant readership of the importance of Roman law for a “general” as well as “legal” education, he wrote: “It may be doubted whether even the best educated men in England can fully realise how vastly important an element is Roman law in the general mass of human knowledge, and how largely it enters into and pervades and modifies all products of human thought which are not exclusively English [i.e., which are broadly European].”Footnote 31 Arguing that “all men who speak and think” use expressions derived from Roman law without even realizing it, he urged the English to study this influential legal system.Footnote 32 Maine bemoaned the “strange intellectual gulf” between classical and legal studies in England and himself set out to bridge that gulf through his work as a teacher (he was the first reader in Roman law and jurisprudence at the Inns of Court's Council of Legal Education) and a writer whose audience extended far beyond the legal profession.Footnote 33
Stevenson came to his appreciation of the importance of Roman law by a different route than Maine. Whereas Maine was “one of the most brilliant classical scholars of his time,” who had to pursue his study of Roman law in an environment largely indifferent to it, Stevenson's formal education in Roman law was far stronger than his education in classical literature.Footnote 34 Although he needed some knowledge of Latin for his law degree, he never underwent the thorough steeping in classical literature that an English contemporary of his own class would most likely have received at school and university. He read Latin with a dictionary, relied on editions “with good notes,” and frequently asked for help with his translations.Footnote 35 Stevenson had not internalized Latin literature in the way he ascribed to his English character Robert Herrick, the exile in The Ebb-Tide for whom the Aeneid conjured “visions of England.”Footnote 36 Reading Virgil provides Herrick with confirmation of his self-identity, reinforcing his relations to father, class, and country; Stevenson, by contrast, retained a sense of otherness, coming to the classics from the outside, struggling with his imperfect grasp of the grammar and vocabulary. Yet, his cousin and biographer, the Oxford-educated Graham Balfour, noted that “the Roman Empire was far more of a reality to him than to many better scholars.”Footnote 37 Balfour was puzzled by the vividness of his cousin's relation to a culture to which he lacked the educated Englishman's usual means of access—secure possession of the Latin language and literature. But Stevenson had his own access to the “reality” of the Roman Empire through his studies in Roman law. And, like Maine, he was less interested in Roman law as a subject of study in itself than as a tool for mapping the boundaries and contours of modernity.
Maine's Ancient Law was enormously successful and influential, reaching a wide audience through its accessible style and its relevance to contemporary debates on ethics in modern commercial society, the government of India, and the factors encouraging or hindering social progress.Footnote 38 It was also the founding text in the new nineteenth-century science of comparative law, a fact given institutional recognition when Maine became the first appointment to the new chair of historical and comparative jurisprudence at the University of Oxford in 1869.Footnote 39 In Ancient Law, historical and comparative methods worked side by side as Maine conducted an inquiry into the origins of modernity through a study of the development of primitive law. He proposed a “law of progress”—that societies progress from co-ownership to private property and “from Status to Contract,” that is, from “a condition … in which all the relations of Persons are summed up in the relations of Family … towards a phase of social order in which all these relations arise from the free agreement of Individuals.”Footnote 40 In George Stocking's summary, Maine hypothesized that this “linked development of the law of family and of property reflected the central dynamic process in the growth of civilization.”Footnote 41 The process could be traced through the changes in Roman law, which in its earliest phases represented the legal thinking of an archaic society, but in its maturity had set out ideas and institutions that had shaped the modern world. It was this later Roman jurisprudence, “the wisdom of Gaius or Papinian,” that Stevenson tended to see as emblematic of advanced Western culture, and he consistently contrasted its modes of thought to those underlying Pacific law.Footnote 42
Although he took the early Roman law, accessible to historical study through written records, as the “typical system” of primitive law, Maine strengthened his understanding of primitive law with comparative observations of other contemporary or recent legal systems.Footnote 43 He argued that “as societies do not advance concurrently, but at different rates of progress, there have been epochs at which men trained to habits of methodical observation have really been in a position to watch and describe the infancy of mankind.”Footnote 44 The study of India in the nineteenth century provided the opportunity for such an exercise in the comparative method, and Maine asserted the importance of the Indian village community for understanding “the infancy of law,” which he believed to be characterized “by the prevalence of co-ownership, by the intermixture of personal with proprietary rights, and by the confusion of public with private duties.”Footnote 45 Closer to home, the Scottish Highland clan yielded a comparative example that illuminated Maine's study of early Roman patriarchal society.Footnote 46 Such comparisons, Maine believed, could supplement the study of Roman law in establishing the stages of legal development through which the modern West had already passed. India became increasingly important to Maine's intellectual project, which he “hesitate[d] to call … Comparative Jurisprudence because, if it ever exists, its area will be so much wider than the field of law.”Footnote 47 He proposed that comparisons between India and Europe should include the topics of “laws, institutions, customs, ideas, and social forces”; that is, he anticipated a movement outward from comparative jurisprudence to include much of the field now covered by sociology and anthropology.Footnote 48 This was the area with which Stevenson wished to engage in In the South Seas, as the American historian Henry Adams noted after talking to him in Samoa in 1890: “He will tell his experiences in the form of Travels, and I was rather surprised to find that his range of study included pretty much everything: … sociology, laws, politics and ethnology.”Footnote 49
II. Stevenson and Maine
The similarities between Maine and Stevenson are suggestive. They shared a distinctive interest in Roman law as not only the key to Roman civilization but a tool for analyzing problems of social development and cultural difference in the modern world. Each also mapped out an investigative project (Maine in India, Stevenson in the Pacific) that defied existing disciplinary boundaries but was situated somewhere between the expanding concerns of comparative jurisprudence and the emergent field of anthropology. Were these similarities merely coincidental? Was Stevenson influenced by Maine?
The only direct reference to Maine I have found among Stevenson's published writings and sayings is in an anecdote recorded by his biographer, Graham Balfour. “I had been reading Maine,” was Stevenson's explanation of how he managed, without having read the textbook, to pass the subject “Ethical and Metaphysical Philosophy” in his preliminary examination for the Scottish Bar in November 1872.Footnote 50 At this time, Stevenson could have been reading either the famous Ancient Law (1861) or the recent Village Communities (1871). The context of the comment—a joking defense of his preference for books outside the curriculum—hardly suggests a weighty intellectual encounter. Yet his later writings provide internal evidence that Stevenson had absorbed Maine's ideas. Stevenson's A Footnote to History begins:
The story I have to tell is still going on as I write; the characters are alive and active; it is a piece of contemporary history in the most exact sense. And yet, for all its actuality and the part played in it by mails and telegraphs and iron war-ships, the ideas and the manners of the native actors date back before the Roman Empire. They are Christians, church-goers, singers of hymns at family worship, hardy cricketers; their books are printed in London by Spottiswoode, Trübner, or the Tract Society; but in most other points they are the contemporaries of our tattooed ancestors who drove their chariots on the wrong side of the Roman wall. We have passed the feudal system; they are not yet clear of the patriarchal. We are in the thick of the age of finance; they are in a period of communism. And this makes them hard to understand.Footnote 51
The passage is full of Maine's terms and ideas. Maine advocated a patriarchal theory of the origins of social organization that marginalized him within nineteenth-century anthropology, which was dominated by the “matrifocal” theories of J. F. McLennan and Lewis H. Morgan.Footnote 52 Maine saw feudalism, which relied on contracts rather than blood relations to create social units, as the first stage in the breakdown of kinship groups based on the power of the father, and he believed that societies “passed through the crucible of feudalism” in “the gradual disentanglement of the separate rights of individuals from the blended rights of a community,” which achieved its fullest form in the modern commercial age.Footnote 53 This age was characterized by the recognition of the individual as the basic unit of society, by respect for private property, and by the proliferation of contracts as the legal mechanisms governing the ever more complex relations between individuals over private property.Footnote 54 The modern commercial age represented the furthest legal and social development from the era of co-ownership, which Maine posited as the earliest stage of social organization. This stage survived, Maine claimed, in the Indian village community, which he described as “at once an organised patriarchal society and an assemblage of co-proprietors,” and as “a body of kindred holding a domain in common.”Footnote 55 Drawing on a range of comparisons with other ancient societies, Maine argued: “We have the strongest reason for thinking that property once belonged not to individuals nor even to isolated families, but to larger societies composed on the patriarchal model,” from which various modes of family and individual ownership gradually evolved.Footnote 56
Writing about traditional Polynesian societies and their collision with the modern societies of the West in the age of trade and colonization, Stevenson employed the same socioevolutionary categories Maine used in Ancient Law: “feudal,” “patriarchal,” “age of finance,” and “period of communism.” Phrases such as “we have passed” and “they are not yet clear” at the beginning of A Footnote to History show that he shared Maine's belief that these stages occurred in a definite order and that European societies had already covered the developmental ground that primitive societies had yet to traverse. He also employed Maine's categories in In the South Seas in a well-known instance of the “Highland comparison.” Noting parallels between the Marquesas and the Scottish Highlands as colonized lands, he observed “the commercial age, in each, succeeding at a bound to an age of war abroad and patriarchal communism at home.”Footnote 57 The point is that the feudal stage and the gradual evolution of private property and individual rights, which were meant to come between “patriarchal communism” and the “commercial age,” were left out in both the Highland and Marquesan experience, where the normal evolutionary pattern was disrupted and accelerated by the unnatural intervention of colonialism, with profoundly dislocating effects on the colonized society.
With so little external evidence, one can only speculate about how much Stevenson was directly influenced by Maine. But even setting aside the question of influence, a comparison of their attempts to understand alien legal systems is illuminating. Their common ground reveals the central concerns of early legal anthropology. Their divergences show the different paths nineteenth-century comparative jurisprudence could take, with differing implications for colonial administration. The similarities and differences between Stevenson and Maine are revealed by examining three aspects of methodology: their shared recognition of the legal quality of unfamiliar social practices, their differing degrees of commitment to a model of evolutionary progress, and the quite different ways in which they set the parameters of cultural comparison.
Stevenson's comparative jurisprudence, like Maine’s, depended on recognizing in other cultures (past or foreign) a range of legal institutions that did not necessarily fit with modern European conceptions of law. Maine helped to set the course of legal anthropology, and British social anthropology in general, through his development of “a ‘jural’ model of social structure” in which social units were “linked to each other by reciprocal rights and duties, which were sustained by a body of sanctions.”Footnote 58 This was a major break from the traditional European belief that primitive people lived—whether in Arcadian innocence or in savage ignorance—without law. That belief was reinforced by nineteenth-century theories of positive law, which required the presence of a sovereign and a command to define law. Maine specifically cautioned the student of comparative law against using the model of positive law put forward by the jurists Jeremy Bentham and John Austin, who “resolve every law into a command of the lawgiver, an obligation imposed thereby on the citizen, and a sanction threatened in the event of disobedience; and it is further predicated of the command, which is the first element in a law, that it must prescribe, not a single act, but a series or number of acts of the same class or kind.” Rather, he argued that “the farther we penetrate into the primitive history of thought, the farther we find ourselves from a conception of law which at all resembles a compound of the elements which Bentham determined. It is certain that, in the infancy of mankind, no sort of legislature, not even a distinct author of law, is contemplated or conceived of. Law has scarcely reached the footing of custom; it is rather a habit.”Footnote 59
Despite the theoretical prestige of the Austin-Bentham model of positive law in nineteenth-century England, lawyers working in international contexts often found it impractical.Footnote 60 The English ruled India through a patchwork of English common law, the customary laws of different ethnic and religious groups, newly codified laws intended to apply to both colonizers and colonized, and, when nothing else was available, the dictates of “equity and good conscience”; the Benthamite impulse toward codification of the laws in English India put some customary laws on a “positive” footing and supplanted others but never completely eradicated the customary basis of much law or the legal force of many customs.Footnote 61 Still, John Stuart Mill argued that the English did not pay enough attention to customary law in their administration of India; he indicted the British failure to recognize “the customs of the country” in matters of land ownership and claimed that the injustices arising from this failure had been perpetrated “by the English rulers of India, for the most part innocently, from sheer inability to understand institutions and customs almost identical with those which prevailed in their own country a few centuries ago.”Footnote 62 These rulers, Mill suggested, were in need of just the sort of education in the history of ideas offered by Maine's comparative work in Ancient Law and Village Communities.
If in the practical world of colonial administration, customary law was not always recognized, in the developing field of anthropology its position was also not yet secure. Seventy years after Maine, anthropologists were still arguing against assumptions of the lawlessness of primitive society. In 1934, H. Ian Hogbin wrote: “The failure to perceive the existence, in primitive communities, of any law other than measures of repression against violence has been due mainly to a too narrow conception of law, as consisting in a body of rules expressly laid down and enforced by institutions existing for the purpose. The legal system has been identified with the person or organisation having the power to create law.”Footnote 63 This was precisely the view Maine had argued against, although the importance of his doing so was not always appreciated by twentieth-century anthropologists. In 1926, Bronislaw Malinowski attacked the “dogma of the automatic submission [of the savage] to custom,” which he claimed had “dominated comparative studies of law from Sir Henry Maine to the most recent authorities.”Footnote 64 Maine's view of primitive law as unconsciously internalized custom or habit blinded him, Malinowski argued, to the “definite social machinery” enforcing the “civil jurisprudence” of primitive societies.Footnote 65 Nevertheless, the stress Maine placed on the recognition of custom as law was a necessary precondition for the identification and study of alternative legal systems that were not tied to modern European ideas of legislation.
Stevenson critically represented characters such as John Wiltshire, the narrator of his novella “The Beach of Falesá,” who said, “They haven’t any real government or any real law, that's what you’ve got to knock into their heads.”Footnote 66 Wiltshire's limited, ideologically bound perspective forms the basis of a sustained exercise in narrative irony. Wiltshire, although he does not know it, is “sunk over the ears in Roman civilization” and deaf to all that speaks to him from outside that civilization.Footnote 67 Stevenson was not. He looked outside the Roman world and saw, not chaos or a void, but an alternative legal culture that, however “hard to understand,” had its own coherence and validity.Footnote 68 Perception of the presence of law in what was apparently only custom or habit, such as Maine advocated, characterizes the analysis of Pacific societies in both In the South Seas and A Footnote to History. But Stevenson also looked for what Malinowski would later identify as the key element of legal anthropology, the “definite social machinery of binding force.”Footnote 69 In his Pacific nonfiction, Stevenson wrote about two such legal mechanisms, tapu and reciprocity, which are discussed at greater length below.
As well as paying attention to customary law, Stevenson observed the more obvious manifestations of power and control in Pacific societies. These could take forms inassimilable to the ideas of uniformity and repetition that defined European legal science, but, like Maine, Stevenson recognized that this meant the presence of a different kind of law, rather than no law at all. He made this point in his account of the government of Butaritari under the violent, absolute rule of King Nakaeia: “The fear of Nakaeia filled the land. No regularity of justice was affected; there was no trial, there were no officers of the law; it seems there was but one penalty, the capital; and daylight assault and midnight murder were the forms of process.”Footnote 70 But Stevenson was careful to point out that what the European sees as the absence of law might not strike the indigenous subject in the same way: “Deeds that smell to us of murder wore to his subjects the reverend face of justice … natives to this day recall with respect the firmness of his government.”Footnote 71 Indeed, his description of the reign of Nakaeia corresponds quite closely to what Maine identified as the earliest stage of legal development, the era of the themistes, or king's judgments, when “the only authoritative statement of right and wrong is a judicial sentence after the facts” rather than a law set down in advance.Footnote 72
Both Maine and Stevenson were interested in the relation of law to the evolution of societies. Maine's thinking about the stages of legal development was readily assimilable to the prevailing intellectual climate of evolutionism in the second half of the nineteenth century, as his contemporaries saw. Leslie Stephen wrote of Ancient Law: “Coming soon after the publication of Darwin's great book, which had made the theory of evolution a great force in natural philosophy, it introduced a correlative method into the philosophy of institutions.”Footnote 73 Praising the achievements of “both natural and moral science” during the Victorian period, the jurist Frederick Pollock asserted in 1903 that “the transformation of political science about forty years ago cannot be disconnected from the all but simultaneous putting forth of new and far-reaching ideas in the study of organic nature. Ancient Law and The Origin of Species were really the outcome, in different branches, of one and the same intellectual movement—that which we now associate with the word Evolution.”Footnote 74
Later scholars have been more cautious in identifying Maine with evolutionism, pointing out that his laws of social development were never proposed as universal and that his methodology was modeled not on Darwin's comparative anatomy but on Max Müller's comparative philology.Footnote 75 Maine himself had reservations about making comparative jurisprudence an evolutionary science, reminding his readers of “the vast varieties of circumstance accompanying the stern struggle for existence.”Footnote 76 He warned that the Indian and Scottish village communities did not necessarily “represent distinct stages in a process of transmutation which has been everywhere accomplished in the same manner” and that Roman legal conceptions did not “typify the necessary results of advancing thought under all conditions.”Footnote 77 Nevertheless, his belief in a “law of Progress,” his association of primitive law with a state of social and jurisprudential “infancy,” and his model of staged legal development, in which the order of the stages never varied, all revealed his generally evolutionist approach. As Pollock saw it, the purpose of Maine's books was to study archaic societies (whether through observation or records) and thereby “to establish and illustrate the normal process of development in legal and political ideas.”Footnote 78
In both In the South Seas and A Footnote to History, Stevenson invoked this “normal process of development” in terms identical to Maine’s. He shared Maine's assumption that primitive cultures lagged behind on the evolutionary path followed by European society. Accompanied by metaphors of infancy and maturity, such thinking could lead to the belief that members of traditional societies recapitulated not only earlier stages in the historical development of Western society but also earlier stages in the life cycle of the Western subject. In A Footnote to History, Stevenson asserted that the child is the native's “true analogue,” a remark that brings him surprisingly close to his character Wiltshire, from whose racist views he generally maintains an ironic distance.Footnote 79 Wiltshire claims, “It's easy to find out what Kanakas think. Just go back to yourself any way round from ten to fifteen years old, and there's an average Kanaka.”Footnote 80 But the dialogic method of “The Beach of Falesá,” no less than its narrative irony, challenges Wiltshire's view. The commercial greed of white men is childish in the eyes of Wiltshire's Polynesian wife, Uma; “‘You see, you get copra,’ she said, the same as you might offer candies to a child.”Footnote 81 In another of Stevenson's short stories, “The Isle of Voices,” the Hawaiian Keola exploits the childishness of Europeans; “Keola knew white men are like children and only believe their own stories; so about himself he told them what he pleased.”Footnote 82
In such ways, Stevenson's fiction subverts the evolutionist orthodoxies expressed in his nonfiction. But there, too, Stevenson showed that his subscription to evolutionist thinking generally, and to Maine's model of societal progress in particular, was far from absolute. Reid has demonstrated that, while drawn to the ideas of evolutionary anthropology, Stevenson was always skeptical about the narratives of progress embedded in Victorian cultural evolutionism.Footnote 83 He was certainly a less committed progressivist than Maine, much readier to question the gains of social evolution, as In the South Seas repeatedly shows. In Butaritari, after the tyrant Nakaeia was succeeded by two weaker brothers, a rebellion of the “Old Men” or “high chiefs and notables” stripped the monarchy of its power, and government for a while centered on the Speak House. The change of government corresponds with Maine's second stage of legal development, the emergence of a “juristical oligarchy” that claims “to monopolize the knowledge of the laws” and “the principles by which quarrels are decided.” Maine calls this stage the era of customary law, a step forward in legal evolution from the era of the judgments of kings.Footnote 84 Stevenson was unimpressed by such a manifestation of evolutionary progress at Butaritari: “The Old Men enjoyed a festival of public speaking; the laws were continually changed, never enforced; the commons had an opportunity to regret the merits of Nakaeia.”Footnote 85 An even greater challenge to progressivist thinking came at Apemama, also in the Gilbert Islands, where Stevenson thought that the regime of the tyrant, Tembinok’, represented “the problem (perhaps) of to-morrow for ourselves.”Footnote 86 Socialism, which Stevenson had argued in his 1887 essay “The Day After Tomorrow” would come about through a process of “evolution,” might look something like this, and Stevenson doubted the benefits of such a development.Footnote 87 Furthermore, the very notion that the government of a Micronesian island might provide a mirror (however undesirable) of Europe's future upset the assumption of unidirectional progress central to Victorian socioevolutionism. This cluster of ideas—that progress is not always beneficial, that socioevolutionary change may be circular rather than linear, and that Europe might evolve toward rather than away from the kinds of societies found in the Pacific—had significant implications for Stevenson's comparative jurisprudence and for the opinions about colonial government that he derived from it. It made him more skeptical about European interference in the affairs of Pacific countries, and more open to the merits of indigenous self-rule, than many of his contemporaries.
Stevenson thus differed philosophically from Maine over the question of progress, but the greatest difference between them was methodological: Stevenson allowed himself more latitude in his legal comparisons. Maine modeled comparative jurisprudence on the science of comparative linguistics, accepting its Indo-European parameters. He was, as George Stocking points out, “very dubious of any connection between ‘barbarous Aryan usage and savage non-Aryan practice.’”Footnote 88 Stevenson had no such qualms, frequently comparing Polynesian ideas and practices with earlier stages of European civilization. So, for example, he wrote of the impersonality of revenge and the notion of the group's share in the guilt of any one member: “All over the islands, as at home among our own ancestors, it will be observed that the avenger takes no particular heed to strike an individual.”Footnote 89 He readily identified Samoan with Highland culture, claiming, for example, that “the clan system, and that imperfect idea of justice which is its worst feature, are still lively in Samoa; … it is held the duty of a judge to favour kinsmen.”Footnote 90 These comparisons took him outside “the Indo-European family of nations,” and this led to an important difference in methodology.Footnote 91 Whereas Maine traced lines of “filiation and mutual relation” connecting phenomena that, however divergent their descent and variable their rate of progress, could be argued to have a common parentage, Stevenson sought to establish similarities between Polynesian and European social institutions not through filiation but through analogy.Footnote 92 He could not claim that Polynesians and Europeans belonged to the same “family of nations” in any scientific sense; his Highland comparison could only establish a “sense of kinship” “between a South Sea people and some of my own folk at home.”Footnote 93 This “sense of kinship,” based as it was on a belief in “the psychic unity of mankind,” put Stevenson in the opposite camp to Maine on one of the major issues of nineteenth-century anthropology: the “problem of human unity.”Footnote 94 Despite the great significance he attached to the division between Roman and non-Roman cultures, Stevenson's belief in the underlying “kinship” of human beings of different races meant that the division was, in his mind, value free. The Roman system was not necessarily superior to the usages found in “zones unromanised,” and Stevenson's comparative jurisprudence does not place them in a stable hierarchy of value, preferring instead to bring the two into mutually illuminating dialogues.
III. Stevenson's Comparative Jurisprudence
The concept of tapu is the prime instance in In the South Seas of how Western thinking is challenged by moving outside the zone of Roman law. Stevenson writes:
the nature of that institution is much misunderstood in Europe. It is taken usually in the sense of a meaningless or wanton prohibition, such as that which to-day prevents women in some countries from smoking, or yesterday prevented any one in Scotland from taking a walk on Sunday. The error is no less natural than it is unjust. The Polynesians have not been trained in the bracing, practical thought of ancient Rome; with them the idea of law has not been disengaged from that of morals or propriety; so that tapu has to cover the whole field, and implies indifferently that an act is criminal, immoral, against sound public policy, unbecoming or (as we say) “not in good form.”Footnote 95
Maine had noted that the earliest legal codes, “both in the East and in the West,” “mingled up religious, civil, and merely moral ordinances, without any regard to differences in their essential character.” In contrast, he argued, “the severance of law from morality, and of religion from law, belong[ed] very distinctly to the later stages of mental progress,” as embodied by the mature Roman jurisprudence.Footnote 96 Identifying the non-Roman quality of the tapu as a legal institution allowed Stevenson to perceive that Pacific cultures did not operate without, or before, the law, but rather were highly regulated by a legal system very foreign to the modern European mind. He used the key reference point of Roman civilization and its “constraining and preventing” force on the European imagination to show that while later Roman jurisprudence distinguished the criminal from the immoral or impolitic, a distinction modern Europeans unquestioningly accept, Polynesian jurisprudence covers “the whole field,” so that the tapu defines a much broader range of infractions against social order than Europeans usually associate with law.Footnote 97 Thus while Europeans separate “meaningless or wanton prohibitions” (such as those concerning gender), which are enforced by ideology, from the prohibitions and obligations enforced by criminal and civil law, Pacific societies mingled the two categories. “Many tapus were in consequence absurd enough,” wrote Stevenson, especially those “meaningless proprieties” concerned with limiting the freedoms of women, but he also argued that “the tapu is more often the instrument of wise and needful restrictions”Footnote 98
Some tapus were put in place by the command of a sovereign and enforced by his threat of punishment, and these were assimilable to the modern European concept of positive law. Stevenson gives examples of these kinds of tapus; in Butaritari in the Gilbert Islands only the King could raise or restore the tapu against liquor; in Apemama the Stevensons’ compound was rendered inaccessible to the locals by “the tremendous sanction of the tapu and the guns of [King] Tembinok’”; and in the Marquesas a tapu to conserve a particular kind of scarce fish could only be imposed by “the old, legitimate cannibal” chief of the district, not by the new puppet chief of French rule.Footnote 99 In other cases the tapu worked not through the exercise of sovereign power, but as an authoritative example that could take on a social force: thus, the Marquesan chief Kooamua “established a forest law” to conserve coco palms by placing a tapu on his own trees and relying on the common people to follow his example; here the tapu still worked, however indirectly, as “the organ of paternal government.”Footnote 100 But tapus could also be instituted by individuals (or, perhaps more correctly, families) to protect private rights. Stevenson noted one instance of this in the Marquesas, when drought sent the inhabitants of Anaho into the next valley to gain breadfruit from their neighbors, while a nearby cluster of fruit-bearing trees was left untouched: “‘Why do you not take these?' I asked. `Tapu' [was the answer]; and I thought to myself (after the manner of dull travellers) what children and fools these people were to toil over the mountain … when the staff of life was thus growing at their door. I was the more in error. In the general destruction these surviving trees were enough only for the family of the proprietor, and by the simple expedient of declaring a tapu he enforced his right.”Footnote 101 The tapu was a manifestation of “that intellectual condition in which civil obligation and religious duty are inevitably confounded,” a condition Maine identified with a state of social “infancy.”Footnote 102 However, once Stevenson understood the socially regulative function of the tapu, he realized his “error” in calling the Marquesans “children” for obeying it, for it helped to maintain justice and harmony in a community under pressure.
Some tapus, Stevenson noted, were not traceable to the legislative power of a sovereign, family, or private individual but existed wholly in the field of custom and received knowledge, such as the tapus governing gender ideology.Footnote 103 Except for those enforced at gunpoint by Tembinok’, in all the instances observed by Stevenson, “the sanction of the tapu is superstitious; and the punishment of infraction either a wasting or a deadly sickness”; that is, punishment was believed to be automatic and inevitable, not reliant on human agency.Footnote 104 Belief in supernatural forces thus served the purpose of social regulation in a system of rights and obligations that constituted the civil as well as the criminal law of the land. Rather than dismissing the system's reliance on superstition as the manifestation of a primitive mental condition, Stevenson paid attention to the way that superstition functioned to support social order. In his discussion of the administration of justice in the Marquesas, this led him to dispute the idea that the supposedly more highly evolved legal institutions are the more effective or the more intellectually advanced.
In the Pacific, Stevenson learned that the superstitious sanction of the tapu could work as an extremely effective device for the detection of crime. It was believed that the sickness attendant on eating tapu fruit could only be cured by priests using leaves from the tree robbed; to be saved, the thief therefore had to confess whom he had robbed so that the correct leaves could be obtained for his cure. Stevenson speculated that the idea of secret tapus could work even more broadly “as a politic device to spread uneasiness and extort confessions: so that, when a man is ailing, he shall ransack his brain for any possible offence, and send at once for any proprietor whose rights he has invaded. `Had you hidden a tapu?' we may conceive him asking; and I cannot imagine the proprietor gainsaying it.”Footnote 105 Stevenson was much struck by the “evidences of design” and possibilities for manipulation in a system regarded with such superstitious dread, and he asserted that “even if it were not originally invented, its details have plainly been arranged by the authorities of some Polynesian Scotland Yard.”Footnote 106 Against the intellectual elegance of this system for the detection, exposure, and punishment of crime, Stevenson contrasted the methods of the French colonial administration: “I was admiring, in the tapu system, the ingenuity of native methods of detection; there is not much to admire in those of the French, and to lock up a timid child in a dark room, and, if he prove obstinate, lock up his sister in the next, is neither novel nor humane.”Footnote 107 Indeed, he asserted, the French system was based on a “barbarous injustice” whereby the “state of accusation” was much more painful than the “state of conviction,” thus encouraging the innocent as well as the guilty to confess and risking a failure to detect the actual criminal at all.Footnote 108
Stevenson's understanding of tapu as an institution of civil law shows how he moved beyond the European notion of positive law to a subtler appreciation of legal culture such as Maine had advocated. This also enabled him to recognize the other great pillar of Pacific civil law, the principle of reciprocity. In his story of the Anaho drought in In the South Seas, Stevenson showed how, in the problem of managing scarce resources, the negative force of prohibition (tapu) worked alongside the positive force of obligation (gift giving); when they crossed the mountain, each householder of Anaho chose an inhabitant of the next valley, “‘gave him his name’—an onerous gift, but one not to be rejected—and from this improvised relative proceeded to draw his supplies, for all the world as though he had paid for them.”Footnote 109 The force of reciprocity called into play by the “onerous gift” replaces what to the modern, Western mind is the more accessible notion of commercial transaction, and Stevenson's observation that the gift was “not to be rejected” recognizes the legal force accompanying the act. Malinowski would develop this idea; using the example of the Trobriand Islanders in Melanesia, he argued that reciprocity is “a legal binding form,” which fulfills a “social function in safeguarding the continuity and adequacy of mutual services.”Footnote 110
Although Stevenson grasped this key principle of indigenous Pacific jurisprudence and recognized its effectiveness in the Marquesas, he regarded it as a failure in Samoa. In A Footnote to History, he discussed the obligations of hospitality and gift giving under the heading “Elements of Discord: Native,” presenting them as forces not binding communities together but pulling them apart. He used examples both from the Samoan language and from his own experience at Vailima to show the burden placed on individuals by “the loose communism in which a family dwells.”Footnote 111 Taking an uncharacteristically Whiggish position, he condemned a system that “taxes industry to pamper idleness,” wherein “property stands bound in the midst of chartered marauders,” as a major factor hindering social and political progress in Samoa.Footnote 112
Stevenson believed that, in Samoa, the practice of gift giving was being abused because the principle of reciprocity was not being respected: “It is true the beggar was supposed in time to make a return, somewhat as by the Roman contract of mutuum. But the obligation was only moral; it could not be, or was not, enforced; as a matter of fact, it was disregarded.”Footnote 113 Here again is a reference point from Roman law: the mutuum, or loan for consumption, a form of contract (and thus in Maine's terms definitively modern) falling within the Roman law of obligations.Footnote 114 But whereas Stevenson recognized that the tapu could not be understood in terms of Roman law, he measured the Samoan system of reciprocity against “the Roman contract of mutuum” and found it wanting. Judging the principle of reciprocity to be “only moral” and therefore unenforceable, he removed it from the field of law. He did not view the practice of gift giving in Samoa as part of a self-regulating system of mutual obligations, of the kind that Malinowski would later make the defining characteristic of primitive civil law, wherein “every chain of reciprocity is made the more binding by being part and parcel of a whole system of mutualities.”Footnote 115
It is tempting to think that Stevenson simply failed to understand the forces in play, that, in this case, his “Roman” mind took over, “constraining and preventing” insight into the workings of this alien system.Footnote 116 Or could it be that in late nineteenth-century Samoa the system really was not working? A century of contact and trade with Europeans and exposure to “that fashion of regarding money as the means and object of existence,” which Stevenson had identified as a force both alienating and revolutionary in its effects on colonized cultures, may well have disrupted traditional patterns of mutuality.Footnote 117 It is interesting that Stevenson's two specific examples of the failure of the system feature an intrusive foreign element. A girl who worked at Vailima was given clothes by the Stevensons, only to have them appropriated by her family; a native pastor, “a handy, busy man,” made a down payment on a boat that was immediately taken over by his relatives, leaving him indebted for the rest of the value of a boat he no longer owned.Footnote 118 Stevenson presents these stories as evidence of the inherent “injustice” of the system of obligatory gift giving.Footnote 119 Yet they can also be read as evidence of the strains of a culture in transition. Each story concerns an islander moving between imported and indigenous cultures, and each case is crucially shaped by the presence of a foreign element (the rich European employer, the idea of cash payment and debt) that may have distorted the system of mutualities. European notions of wages, contract of sale, and private property may have sat uneasily with traditional Samoan ideas about exchange, the relation between services and gifts, and the enjoyment of goods.
If the collision of cultures in the nineteenth-century Pacific distorted an aspect of indigenous law, reciprocity, it also brought into focus the culturally specific nature of a European legal institution, the trust. Early in his Pacific travels, Stevenson became convinced—it is not clear on exactly what grounds—that Polynesians were incapable of administering trusts: “I have not yet heard of any Polynesian capable of such a burden; honest and upright Hawaiians—one in particular, who was admired even by the whites as an inflexible magistrate—have stumbled in the narrow path of the trustee.”Footnote 120 In his travel writing on Hawaii, not included in the early editions of In the South Seas, Stevenson referred to this failing as a “residual trait of savage incompetence” defined in relation to a competence—a state of higher development—identified with a European norm.Footnote 121 In this instance, Stevenson was prepared to use the kind of evolutionist language that elsewhere he often regarded either skeptically or critically.
Trusts, which became increasingly important to business, family, and public life in nineteenth-century England and America, developed from Roman forms of legal relationship.Footnote 122 Like another Roman law concept, contract, to which it is closely related, trusteeship involves promises. Maine argued that the habit of “attaching a sacredness to promises and agreements” was characteristic of “mature civilisation” and that “the positive duty resulting from one man's reliance on the word of another is among the slowest conquests of advancing civilisation.”Footnote 123 To Maine, the fact that “the newest chapter in the English criminal law is one which attempts to prescribe punishment for the frauds of Trustees” was evidence of “a highly refined conception” of morality in the modern world.Footnote 124 Stevenson similarly wrote of trusts as legal institutions of which modern Westerners could be proud. However, he also came to a more subtle and complex understanding of how alien these legal forms could seem to one with a different legal heritage, as he showed in his fable of cultural collision and mutual incomprehension, “Something in It.”
“Something in It” offers a bold interpretation of the relations among story, place, and law, through the tale of a European missionary who is forced to acknowledge the power of island laws and the supernatural sanctions attached to them. The fable falls quite clearly into two halves, and its significance lies in the intriguing and unexpected relation between the two. The first half attacks the missionary's belief that “my stories are the true ones” and that there is “nothing in” the natives’ stories.Footnote 125 When he breaks a local tapu by swimming in a forbidden bay, the missionary finds himself in the world of the dead as described in native stories and is forced to concede that there is “something in” those stories after all. The implications are staggering. “But if these tales are true, I wonder what about my tales!” he wails.Footnote 126 When he meets one of his own converts among the dead in this Polynesian underworld, the islander challenges him:
“Aha, … so you are here like your neighbours? And how about all your stories?”
“It seems,” said the missionary, with bursting tears, “that there was nothing in them.”Footnote 127
At this point, the fable suggests that there is no universal law or truth, only local systems of authority; in Polynesia, therefore, the missionary must recognize the Polynesian system of beliefs and duties.
The second half of the fable, though, confirms the continuing, coexisting validity of the missionary's worldview. In the underworld, he is offered “the kava of the dead,” the one “reward of living” before being “baked in the ovens and eaten by the eaters of the dead.”Footnote 128 He refuses the drink, on the grounds that he has taken the temperance pledge.
“What!” cried the convert. “Are you going to respect a taboo at a time like this? And you were always so opposed to taboos when you were alive!”
“To other people’s,” said the missionary. “Never to my own.”
“But yours have all proved wrong,” said the convert.
“It looks like it,” said the missionary, “and I can’t help that. No reason why I should break my word.”Footnote 129
The missionary's point of view is irrational and bigoted, and yet it redeems him. The god Akaänga, having tried and failed to “reason” the missionary out of his belief—so reversing a stock scene from the classic texts of Pacific evangelism, in which the missionary uses European reason to dispel irrational Polynesian beliefsFootnote 130—banishes the troublemaker, who returns to the world of the living. The missionary's stubbornness about the temperance pledge reveals that the fable is not just about a clash of theologies, but also about differing conceptions of social obligation. Just as Europeans often failed to understand the obligations conferred and discharged through the Polynesian custom of gift giving, the native figures in the fable cannot understand why the missionary should refuse the divine kava because of a pledge given under a now discredited belief system:
“I never heard the like of this!” cried the daughter of Miru. “Pray, what do you expect to gain?”
“That is not the point,” said the missionary. “I took this pledge for others, I am not going to break it for myself.”Footnote 131
The missionary's pledge, made on behalf of others and for the benefit of others, binds him to “the narrow path of the trustee.”Footnote 132 His promise to abstain from alcohol, made out of loyalty to a cause (temperance), is intended to encourage others to make and keep the same promise. It is part of an implied contract consisting of mutual promises (I will not drink if you will not drink).Footnote 133 His pledge also has the older sense of “becom[ing] a surety for another”; the missionary pledges his abstinence as surety for the abstinence of others and, therefore, has a fiduciary duty to keep his promise for the benefit of others.Footnote 134 The pledge is based on modern, Western ethical concepts of contract and trusteeship, which the missionary is unwilling to abandon, no matter how convincing the evidence for the existence of a different belief system in the islands.
To explain his behavior the missionary argues that one must distinguish between the moral principle that lies behind a law or legal institution and the sanction that enforces it: “But there is such a thing as right and wrong … and your ovens cannot alter that.” This way of thinking is reinforced in the “moral” appended to the fable, which proposes that under the pressure of cross-cultural encounter, “Sanctions and tales dislimn like mist,” and yet a locus standi can be found in the “pin-point of the truth” within each system of laws, customs, and beliefs. The fable ends with the partial reinstatement of the missionary's belief system, apparently dismantled in the first half.Footnote 135
“Much matter of thought was in that missionary's mind: `I seem to have been misinformed upon some points,' said he. `Perhaps there is not much in it, as I supposed; but there is something in it after all. Let me be glad of that.’”Footnote 136 The referent for “it” is ambiguous here and could apply equally to the indigenous system of stories and tapus or to the missionary's system. The ambiguous ending grants parity to the missionary's and the islanders’ worldviews and leaves the tapu and the trust as balancing legal institutions, utterly alien to each other, equally valid, with neither able to command universal authority.
The recognition of multiple, coexisting legal cultures had major implications for colonial administration, which was of practical concern to both Maine, in his legislative and administrative work in British India, and Stevenson, a critic and would-be reformer of the European government of Samoa.Footnote 137 We cannot know what Stevenson would have accomplished if he had gained an official position in Samoa, but it seems likely that he would have worked to somewhat different ends from those pursued by Maine in India.Footnote 138 Maine saw his role as that of cautiously, and with a due sense of history and locality, bringing “progressive” forces to bear on India's traditional law.Footnote 139 Stevenson's advocacy of the continuing validity of indigenous legal systems, combined with his distrust of the “progressive” nations’ effects on Pacific societies, would probably have made him less interested in modernizing and more committed to preserving the legal institutions he observed and analyzed in the Pacific.
The folly and mismanagement exhibited by the European administration of Samoa during the years of Stevenson's residence helped determine these attitudes, but so did Stevenson's attentive observation of Pacific legal cultures. Comparative jurisprudence is a strong element in In the South Seas, A Footnote to History, and “Something in It,” showing how important Stevenson's law studies and his continuing interest in legal ideas were to his intellectual engagement with Pacific societies. Studying Pacific law from a comparative perspective helped Stevenson to achieve a better understanding not only of the society in which he had now chosen to live but also of the “Roman” legacy that had shaped his modern mind. In comparing cultures and subjectivities, he placed law above other powerful markers of difference such as race or religion and made legal concepts central to his anthropological studies.
Analysis of Stevenson's comparative jurisprudence in the light of Maine's work reveals the distinctive ways in which legal thinking shaped Stevenson's encounters with Pacific societies. As well as constituting a significant episode in the history of anthropology, those encounters also suggest the importance of law in postcolonial criticism generally. Both Maine and Stevenson thought and wrote within the context of late nineteenth-century imperialism, and their anthropological concerns interacted with their political observations. Like Maine, Stevenson saw that relations between colonizer and colonized were built upon and shaped by the legal conceptions each party brought to the colonial engagement. His writings on the Pacific, like Maine's on India, suggest that the dynamics of a colonial situation cannot be understood without an appreciation of any clash of legal cultures inherent in that situation.
