The Analysis Of Malinowski’s Legal Origin Theory

Bronislaw Malinowski（1884.4.7—1942.5.16），one of the most importantanthropologists of the20th century who is widely recognized as a founder of socialanthropology and principally associated with field studies of the peoples of Oceania.The Polish-born scholar Bronislaw Malinowski was the originator of socialanthropology. This article is to study Malinowski’s ideology of methodology,anthropology and their contribution to the science of law. The first chapter is tosummarize a variety of doctrines of legal origin and Malinowski’s idea about legalorigin. There was a wide variety of views of legal origin, some of them are phased out,the others are still exist. Malinowski’s view of the legal origin is unique, and had aprofound impact. The second chapter is to introduce the investigation of Trobriand inNew Guinea of Malinowski. He doesn’t think that the primitive society is disorder.There are the systematic civil law and the criminal law in the primitive society. Thecivil law includes property right system and marriage system. It regulates theownership of the property and the steady of family. The third chapter is the conclusionof the laws in the primitive society. There are some mandatory sanctions—the mixedfeelings to ensure it. The criminal law includes the accusation and the penalty. In theprimitive society, the gravest crime is incest. There is grievous penalty to forbid it.Other accusations have their own penalties, such as stealing. The systematic lawensures the order of the primitive society. The methodology and the ideology are the most important parts and Malinowski’s major contributions to the science of law andanthropology. Malinowski creates the law anthropology. The last chapter is to discussMalinowski’s methodology—fieldwork, functionalism and culture function.Fieldwork is the basic method of understanding the social formation of the primitivesociety. He investigated the social system and local customs of the primitive societyhimself. It is the basis of following study. Malinowski creates functionalism. It looksthe all-social cultural phenomenon as a whole and analyzes its function. Then it putsall parts in the whole and analyzes the function of all parts to the whole. There is anew visual angle if you translate the primitive society by functionalism. Byfunctionalism, customs, manners and social system have their certain functions. Theyare beneficial to a steady society. So they can hand down to now. Cultural function isto expound the function of the culture and all the parts of culture. So the fieldwork canintegrate theory with practice. What’s more, functionalism can provide the science oflaw with a new visual angle. It can make scholars think about the science of law byfunctionalism, which consummates further the law.