our limited knowledge permits, the most obvious points of difference between African and European music. The gulf between them has proved to be so wide that any attempt at bridging it is out of the question. African, like any other non-European music, is founded on melody, European music on harmony. African polyphony develops from pure melody into forms which were indeed practised in Europe during the early Middle Ages, but are long since forgotten -European music having, in the meantime, taken a different course. African rhythm springs from the drummer's motions and has far outstripped European rhythm, which does not depend on motion but on the ear. A white man, even if he is the most capable of musicians, finds it hard enough to get hold of a negro melody or rhythm accurately; still less will he be able to fit new words to it, and least of all to compose negro songs.

Nor will it do to supply European tunes with African words. To translate the words of a European song even into a kindred (IndoEuropean) language is a most difficult thing to undertake. While this is true of art songs, the difficulty increases still more in the case of folksongs, where words and tune are conceived as one. And the more distant two languages are from each other, the more they differ in their metre. ‘In languages where every word has its stress on the last syllable but one (penultimate) male rhymes can only be enforced by incessantly arranging the same few existing monosyllabic words at the end of the lines. The bulk of African sacred songs have been manufactured (I do not mean to say created) according to this recipe. It is to be hoped that they will not exist for long." The mixture of 'white' and 'black' music, with a kind of musical pidgin as result, would be, if not impossible, yet most undesirable. Three ways remain open: (1) The Negroes are taught to sing our songs such as they are, i.e. with their texts in a European language. In contrast to other races, they would easily learn them, but would undoubtedly adopt, along with them, the delivery (and all the oddities) of their teachersand be conscious of doing so (cf. above, p.60). The result would be a burlesque. (2) The Negroes are encouraged to produce songs, tune, and words 'à l'européenne'. A little encouragement would surely be sufficient 1 C. Meinhof, D. Dichtung d. Afrikaner, 109 f., Berlin, 1910.

to give rise to a prolific output of 'spirituals'. In both these cases, they would rapidly forget their own music, and Africa would become what North, Central, and large parts of South America and Polynesia (and of Africa itself) already are: that is, a mere European colony as far as music also is concerned. The process would perhaps take a somewhat different course if the Negroes were given as models, instead of modern harmonic forms, old melodic-polyphonic forms, which are less alien to the character of their own music. This attempt at hybridizing would, at any rate, be an interesting experiment; but only great experts could succeed in growing an improved and fruitful variety of musica africana. (3) The Negroes are encouraged to sing and play in their own natural manner, that is to say, in the African manner.2 To what extent one can be broad-minded in this respect, as far as the Christian church and school are concerned, I am not competent to judge. From a musical point of view one cannot be broad-minded enough. African music is not conceivable without dancing, nor African rhythm without drumming, nor the forms of African song without antiphony.3 It will be necessary to come to a definite decision and choose either African music or European custom. It is not possible to eat one's cake and have it.

E. M. VON HORNBOSTEL.

This is what Th. Rühl, S.V.D., is thinking of in his noteworthy paper, 'Die missionarische Akkommodation', Zeitschrift f. Missionswiss., 17, 113 ff., 1927. 2 This has been tried repeatedly and successfully, see Rühl, l.c., 123.

3 The question whether these three essential elements are admissible in Roman Catholic rites is discussed by Rühl, l.c., 125.

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PRIMITIVE LAW IN EASTERN AFRICA

BY J. H. DRIBERG

ENERALIZATIONS based on insufficient or inaccurate data have in the past contributed to many anthropological fallacies. Instances of such hasty generalizations will come to mind readily enough, and it will be recollected that whole theories have been so formulated and, after leading anthropological enquiry down sterile labyrinths of thought to dogmatical culs-de-sac, have had to be jettisoned with all their accumulated impedimenta of false inferences and falser conclusions. There is no room as yet for broad generalizations in cultural anthropology: our reliable information is still too fragmentary and unrelated.

Take one example. Among the Lugbwara of North-West Uganda and the Congo a man receives back on divorce the marriage dowry paid by him less a specified fine for each child born to him, although he has no rights in the children who accompany their mother and remain with the mother's family. To one acquainted only with the Lugbwara this important principle might be accepted, as it is by the Lugbwara themselves, as a general law relating to divorce; but it is not till we have travelled some four hundred miles farther east that we find the same law operating among the Didinga of the south-eastern Sudan, a tribe with no cultural, linguistic, or environmental contacts with the Lugbwara. Among the intervening tribes no such rule exists, and to

The details of primitive law are characterized by extreme logicality, and even in this instance what appears to be illogical proves on examination to be the reverse. The essence of marriage is the payment of a dowry by the husband to the bride's family. Without the dowry there is no legal marriage and any children born to such a union are illegitimate, and for each child so born the father has to pay specified damages to the woman's family. On divorce the husband's dowry, consisting of live-stock, is returned to him with their increase, and the woman returns to her family with her children. As, therefore, there is now no dowry and consequently no marriage the status of the children is that of illegitimacy-though this carries no stigma-and the man has to pay the indemnity prescribed for illegitimacy, which results from the nullity of the marriage.

the best of our belief no similar law has been reported anywhere else in eastern Africa, though this is not to say that it does not occur.

Till, therefore, individual tribes have been systematically and scientifically studied, generalization on details is far too hazardous an experiment. Law is itself only one aspect of culture and varies with cultural variations. It is conditioned by the general culture of the tribe, and is not an independent growth or a parasitic accretion, except when it is superimposed on the local culture by alien conquerors, whether, like the Avungara, primitive as the tribe itself, or whether more civilized such as the European powers who have now partitioned Africa.

Even within the same group the codes, if we may call them so, are as remarkable for their variations as for their conformities, due partly to environmental conditions, partly to the assimilation of cultural traits from neighbours of an alien group, partly to differences in internal development, such as we see among the nomad hunters of Abyssinia and their equivalents of Kenya Colony.

We may, however, justifiably consider some of the general postulates which underlie these variations as much as they do the conformities; but even here we must be careful to limit the scope of our enquiry to cultures of a more or less similar type. A pastoral culture and one based on husbandry are so inherently different that they could not safely be brought within one survey, though doubtless much of what is true of the one is also true of the other. In the following pages, therefore, we shall ignore the Bantu-speaking peoples and restrict ourselves to the pastoral and mixed pastoral-agricultural tribes, to the exclusion of tribes which are purely agricultural. The universality of any concepts which we may be able to discover is not thereby denied: we only refrain from claiming a universality which it is at present impossible to prove, or which can only be postulated with reservations.

In the first place European conceptions of law and justice have to be discarded. They are not only irrelevant but any investigation based on them is bound to be fallacious. European laws of land tenure, laws of evidence, marriage laws, methods of legal procedure, distinctions between criminal and civil law, these and all the other aspects of law have grown up with European culture and are part and parcel of

it: but they have nothing in common with African cultures: they are alien in growth and sentiment, and cannot be used to explain the bases of primitive legal theory.

Primitive law is both more individual and more communal, an antithesis which is not so paradoxical as it might at first sight appear. There is not one law, but many laws, or more accurately, many spheres of law—family, clan, association, and tribal, interrelated but independent, all subservient to the one tribal law, but individually selfsufficient. Before discussing their several applications, however, and before considering the juridical relations of the individual to the community, we must first be clear in our minds what is meant by law. European conceptions and legal definitions, as we have said, do not help us. There is no written code: law consists of traditional observances, and in the absence of a man strong enough to be a 'law-giver', which is a rare phenomenon, there is little departure or variation from tradition. That an occasional law-giver can, like Chaka, revolutionize the tribal law as traditionally inherited does not detract from the general principle that law is an organic growth, inherent in the body politic and accepted just because it is organic, coherent, and traditional. If we must define the term, therefore, we should say that law comprises all those rules of conduct which regulate the behaviour of individuals and communities, and which by maintaining the equilibrium of society are necessary for its continuance as a corporate whole.

On this definition we find then that law is positive and not negative. Primitive law does not say "Thou shalt not' but "Thou shalt'. Law does not create criminal offences, it does not make criminals: it directs how individuals and communities should behave towards each other. Its whole object is to maintain an equilibrium, and the penalties of primitive law are directed, not against specific infractions, but to the restoration of this equilibrium. It is constructive, always constructive and palliative. A crime consists in a disturbance of individual or communal equilibrium, and the law seeks to restore the pre-existing balance. That is why so often a thief goes unpunished. If theft is committed, material equilibrium has been impaired; but if restitution is made there is no more to be done. The deterrent or purely penal theory does not enter into primitive law. Even homicide is not

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