Bronisław Malinowski Misunderstood-or How Leon Petrażycki’s Concept of Law Is Unwittingly Applied in Anthropology of Law
Bronisław Malinowski Misunderstood-or How Leon Petrażycki’s Concept of Law Is Unwittingly Applied in Anthropology of Law

Summary/Abstract: E A. Hoebel and others seem to have had difficulty in understanding B. Malinowski .s account of the Trobrianders’ civil law which, being alien to British or continental positivism, actually is simply an invocation of Petrażycki’s concept of law. The distinction between official and unofficial law, so crucial in Petrażycki’s pluralist theory of law - despite the widespread ignorance of this theory – finally has taken root in the anthropological study of law. This is amply evidenced in B. Oomen’s recent book on “customary law” in the Republic of South Africa. I will discuss this book as well as another recent book by B. Tamanaha (1999) on the non-essentialist study of law to show that both studies in fact are best understood by reference to Petrażycki’s perspective and also that they help to clarify and to refine an original theory that unwittingly functions in the practice of sociological and anthropological empirical studies of law.

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