I. MAGIC, SOVEREIGNTY AND INDIRECT RULE

During a research trip to Kenya in 1929, the historian, colonial reformer, and keen promoter of functionalist anthropology Margery Perham wrote in her diary about a court case dealing with “an ancient deal in goats,” an affair which “went on interminably.” Bemused by the complexity of the proceedings and faced with a set of customs that seemed almost completely opaque, she explained that “no white officials could possibly have the time or patience, still less the capacity, to unravel all the multitudes of such cases that arise in native society.” She contrasted this idea with prevailing institutions in South Africa and Southern Rhodesia where “direct administration” reigned. Under those regimes, she wrote, “one assumes that all this goes on unofficially.” As opposed to a policy of “direct administration,” allowing administrators to “recognize” and “regularize” customary law in local courts would mean that they could “in time develop it into something more advanced.”Footnote ¹⁰ What Perham was describing was a system that had become known by the beginning of the 1920s as indirect rule.Footnote ¹¹ Allowing cases to be tried by African officials seemed to have the distinct advantage over direct rule because it allowed the British to control, and develop, the legal system through sanctioned customary courts while avoiding the minutiae of each particular case.

By the time that Perham arrived in Kenya competing models of indirect and direct administration were, she wrote, the subject of “acute political controversy.”Footnote ¹² This discussion was framed in terms of “development” and arguments for indirect rule were glossed as forms of trusteeship.Footnote ¹³ While Perham argued throughout the 1930s in favor of indirect rule, two broad visions of the policy emerged in this period. One was based on institutions in which law-making, as state-making, was reserved for white Europeans, with a hard line between customary and colonial courts (this was Lugard's view, and a common position held at the Colonial Office by the mid-1930s). Another position proposed that the law itself was to be indirectly generated as a fusion of African and European customs (which, as we will see, was Malinowski's view). I call these two political ideologies “institutional” indirect rule and “jurisprudential” indirect rule. Although they implied different values and politics, they were united by a common antagonist.

In the late 1920s indirect rule was under threat in British East Africa. There was a plot to create a union of Britain's East African colonies with broad license given to the white settler community. This would mean, as the historian John W. Cell writes, the creation of a “far flung counter-empire based on racial discrimination from the Cape to Nairobi” with a confederation of states “directly” ruling the Africans within their borders as subjects rather than indirectly as “wards.”Footnote ¹⁴ A powerful lobby led by Lord Delamere sought to indenture Africans to plant and farm the Kenyan highlands. On the other side of the argument was an increasingly embattled group who thought that development should spring from within African communities. For this constituency, forced labor and wide-scale land expropriation were met with immediate moral disgust and fears about the “detribalization” that would result.Footnote ¹⁵

Lord Lugard had a particularly significant stake in the question of indirect versus direct rule in East Africa. Between 1922 and 1936 he sat as Britain's representative on the League of Nations Mandates Commission. In this position he had a special interest in protecting Britain's governance of the Mandate in Tanganyika along the lines set out in Article 22 of the Covenant of The League of Nations: to rule in the best interests of the population by acting as “trustees,” developing the political and economic institutions of the people under their “tutelage.” In light of its commitments to the League, the Kenyan settlers’ agitation just over the border was putting Britain in a precarious international position.Footnote ¹⁶ Donald Cameron, Tanganyika's governor, wrote to Lugard in 1926 telling him that the Conservative Colonial Secretary, Leo Amery, had urged Lord Delamere, putative leader of Kenya's settlers, to cross the border and “dig in” in the Mandate “before the Germans got back.”Footnote ¹⁷ Responding to Cameron's increasingly worried letters, Lugard begun to mobilize his considerable resources to block the settlers’ intentions.

During the fraught conflicts over the “East Africa question,” Lugard and J. H. Oldham set up the IIALC with money from the Laura Spelman Rockefeller Memorial. When the grant was extended in 1931, the IIALC won out over a competing Oxford Institute for African Studies once its connections to Amery and Jan Smuts’ settler politics were aired to Rockefeller administrators.Footnote ¹⁸ The IIALC implicated Malinowski and his students in an anti-settler coalition, not that Malinowski needed much pushing in that direction. He had been arguing against plantation economies and settler policies ever since making a deposition to an enquiry on Papuan labor conditions in 1916.Footnote ¹⁹ Still moved by the same concerns, he published a broadside against forced labor in a 1930 article in the BBC's magazine the Listener that was so forthright about the emergence of “a new kind of slavery” in Britain's African colonies that the editors were forced to plead with him to tone down the incendiary language of the original draft.Footnote ²⁰

Functionalism's colonial politics can only be understood in this context. In a landmark article Malinowski signaled his view that functionalism would be useful for those wishing to promote a policy of indirect rule.Footnote ²¹ He was promoting this policy against direct, settler-colonial administration which, he wrote, “means in the last instance forced labor, ruthless taxation, a fixed routine in terms of political matters, the application of a code of laws to an entirely incompatible background.”Footnote ²² Malinowski's functionalism lent legitimacy to the anti-settlers’ position by offering expertise on the coherence of local customs and lent his connections with the Rockefeller philanthropies to the cause. He could be relied on to militate in favor of his patrons because of his personal political views, as well as his overweening egotism and seemingly limitless desire to secure functionalism's institutional power in the face of his disciplinary rivals like Grafton Elliot Smith.Footnote ²³

In 1931, Lugard sat on a joint committee drawn from both Houses of Parliament that considered the question of East African Union. During the committee's sessions, discussion about different forms of anthropology was aired at the highest reaches of British politics. The committee heard evidence from a former Chief Native Commissioner for Kenya, C. M. Dobbs, who called for anthropological training for all colonial officials. The report concluded that “social” anthropology was needed.Footnote ²⁴ This is surprising. For those who bothered to flick to the appendix it was exactly the opposite kind of physical anthropology—of a particularly medicalized, evolutionist, racialist kind—that gained the highest praise in the evidence heard by the committee, not Malinowski's brand of civilizational relativism.Footnote ²⁵ It seems highly likely that the difference between stated policy and depositioned evidence was the result of Lugard's militating. A year later, in 1932, Lugard intervened again in support of functionalism as a tool to aid colonial rule after a notorious trial involving witchcraft and murder. For Katherine Luongo, the aftermath of this case reveals that a nexus of “anthro-administration” solidified in the interwar years.Footnote ²⁶ Yet rather than promoting a common ideal of indirect administration, questions of witchcraft and the rule of law revealed the limits of functionalism's colonial politics and its differences with official policy.

A case had come before the Supreme Court of Kenya in which sixty adults and ten minors were tried for killing a woman they believed to be a witch. The number of defendants meant that the trial had to be held in a makeshift court set up inside the train station in Nairobi. Sir Jacob Barth, the presiding high court judge, passed a death sentence on the sixty men over the age of sixteen. The sentences were contested and the case moved to the East African Court of Appeal where the charges were upheld.Footnote ²⁷ After a public furor, letters to the press, and a question in Parliament, the governor-in-council was forced to intervene and granted clemency to the group. Writing in the Times on 20 April, Lugard called for more funding for anthropology to help solve the problem of witch killings in Africa.Footnote ²⁸ The journal Nature opened with an editorial a few weeks later titled “Magic and Administration in Africa” in which Lugard's position was praised and anthropology's utility echoed.Footnote ²⁹ Unlike in 1925, however, when Elliot Smith's letter appeared in the Times, and Malinowski's had been left unpublished, it was functionalist anthropology that was called for.

Malinowski had been making the connection between witchcraft beliefs and the rule of law central to his theorizing for a number of years. For instance, in a letter sent to an officer at the LSRM, Malinowski explained that many colonial administrators seemed to be struck by “moral indignation, or at least superciliousness with regard to primitive belief.” Functionalists, on the other hand, treated seemingly irrational “superstition” as part of a cultural whole; a “working and vital system of forces … which are all organically connected and mutually adjusted.”Footnote ³⁰ In another letter he made the connection between governing and theorizing more explicit still: “It is impossible to administer law and justice in a society with an entirely false view of its constitution.”Footnote ³¹ Malinowski's belief in the utility of his theories resulted in his expressed amazement in a lecture to his students at the LSE that, “In some colonies native law has been declared non-existent!”Footnote ³²

Despite Malinowski's claims to be able to offer advice on the subject of witchcraft and the law, and Lugard's public support for his ideas of applied anthropology, one of Malinowski's students, Meyer Fortes, wrote in a letter from the field: “I fear that there may be a diversity of opinion on some matters between the Administration and myself, as to what is or is not ‘law.’”Footnote ³³ Fortes was right to be concerned. For instance, the appeals court judge in the Kamba case seemed to have a completely different conception of the law to the functionalists. He remarked that “belief in witchcraft is, of course, widespread” but then went on to remind the court that the “Government does not tolerate the killing of witches.” The adoption of a different policy would, he remarked, “encourage the belief that an aggrieved party may take the law into his own hands, and no belief could well be more mischievous or fraught with greater danger to public peace and tranquility.”Footnote ³⁴ Under institutional forms of indirect rule “taking the law into their own hands” might have been allowed in some minor cases, like the adjudication of goat ownership discussed by Margery Perham, but legitimizing the murder of witches seemed beyond pale to colonial officials.

Malinowski's jurisprudential ideas blurred the boundaries between these cases in ways that radically undermined the coherence of Britain's “civilizing mission” in Africa. According to the functionalists, magical beliefs ensured social solidarity and should be seen as key components of customary law.Footnote ³⁵ Unlike the appeals court judge in Nairobi, or evolutionist anthropologists like J. G. Frazer and E. B. Tylor, they did not imbue Western positive law with any particular status as the emanation of a “higher” civilization.Footnote ³⁶ As R. H. Tawney explained in his preface to Raymond Firth's Primitive Economics of the New Zealand Maori (1929), functionalists did not represent their subjects as savage “others” but “merely peoples with a different kind of civilization.”Footnote ³⁷ This relativist agenda meant that functionalist legal theory demanded a total overhaul of colonial law making.

“Primitive jurisprudence,” Malinowski wrote in Crime and Custom in Savage Society (1926), “has received in recent times the scantiest and the least satisfactory treatment.”Footnote ³⁸ He argued that “primitive”Footnote ³⁹ societies were governed by “authority, law and order” which act as forces that bind the community together.Footnote ⁴⁰ The difficulty of understanding the law in non-literate cultures resided in the fact that law is “only one category within the body of custom.”Footnote ⁴¹ Codification and the division of labor had not brought “the law” forth as a distinct realm of activity. But this did not mean that it did not exist. He proposed that to follow the law is analogous to understanding the rules of a game where it is obvious that “you really can only enjoy it if you obey its rules whether of art [or] manners.”Footnote ⁴² Rules bind people in the knowledge that breaking them would garner incomprehension, embarrassment, penalties, and scorn.Footnote ⁴³ Law was a part of custom and maintained the social rules that held each culture together.

We can find further evidence of Malinowski's ideas of law and custom in a series of notes he took in the late 1930s while reading C. K. Allen's influential textbook Law in the Making (1930). According to Allen, the seventeenth-century philosopher John Locke argued, “Law itself becomes an emanation from a natural order of things, a natural rule of reason.” Breaking the law, Allen wrote, “is merely ‘varying from the right rule of reason.’ The ‘state of nature’ becomes a state of liberty, not of strife, and the liberty of each member of society can be curtailed only by his own consent in his own interest.”Footnote ⁴⁴ As Malinowski read Allen's précis of Locke it must have looked remarkably like the argument he made twelve years earlier in Crime and Custom.

Malinowski noted his general approval of Allen's parsing of Locke's ideas but wrote the following as a correction in his notes: “I would differ from Locke and others who oppose reason to will—be [sic] merely expressions of an abstract justice or rationality. They [laws] are ideally an adequate sociological charter, embodying real determinants—environmental, physiological, technological, and spiritual—which control the cultural reality of a social process.… Any theory of law which bases itself on a non-determined Sovereign Will is not correct.” Malinowski followed this up with the claim that sovereignty is “a historically relevant symbol” that comes into being when “one type of traditional custom is to become law as against other traditional usages in conflict with it.” “Genuine law,” he wrote, “is but the charter of institutions, and of tendencies within organized life.” Footnote ⁴⁵ Crucially, he maintained that the adjudication of a conflict of laws was only legitimate if it tended in the direction of the “charter of institutions” central to the maintenance of each community's “organized life” rather than the arbitrary expression of “non-determined Sovereign Will.” He gave as examples of these “charters”: “chieftainship versus district autonomy; matriarchy versus patriarchy; sorcery as instrument of law and its criminal agency.”Footnote ⁴⁶ Any attempt to override these customs would be a threat to the true source of sovereign law that resided in the maintenance and reproduction of the social order of each particular community. The fact that “primitives” were governed by laws that were as extensive and coherent as those of their colonizers, if not as obviously distinct from their cultural background, blunted the edge of criticisms of colonial subjects that purported that their societies were somehow “backward” or that their witchcraft beliefs were “barbaric.”

If we compare Malinowski's ideas about the legal role of magic with the 1925 Kenya Witchcraft Ordinance we get a sense of the problem Meyer Fortes was confronting in the field. Directly opposed to Malinowski's ideas, the Ordinance dismissed magical beliefs as superstitions, and those who professed to believe them were regarded as charlatans or dupes. Almost all acts associated with what the authorities termed “so-called witchcraft” were made illegal.Footnote ⁴⁷ Claiming to be a witch, possessing charms, seeking out witches, chiefs allowing witches to function within their domain, all carried custodial sentences and could be tried by local district officers. Despite these prohibitions, British imperialism was supposed to be premised on a notion of trusteeship that protected customary law.Footnote ⁴⁸ To cope with the mismatch between the ideal of indirect rule and practices like witchcraft, magistrates and judges applied a “repugnancy test” and capital cases often relied on intervention from the governor to overturn legal decisions made in the courts.Footnote ⁴⁹

The concept of “repugnancy” acted as a form of judicial loophole allowing officials to strike down any aspect of customary law offensive to notions of “justice, equity and good conscience” while shakily maintaining that British rule was nevertheless based on trust and a common law respect for custom.Footnote ⁵⁰ Creating a distinction between “repugnant” practices and sanctioned customary law was crucial to the maintenance of the colonial legal order.Footnote ⁵¹ No amount of additional expertise could cover over the differences between Malinowski's jurisprudential ideals and the institutional policies promoted by administrators and judges, no matter how much Lugard or Malinowski sought to pursue their interests by claiming that it could.

Functionalist theories were opposed to actually existing practices of institutional indirect rule. Colonial judges maintained an exceptional ability to strike down customary law on the basis of “repugnancy” while functionalists like Malinowski saw magic as a crucial part of the rule of law in many societies subject to imperial rule. Despite his support for Malinowski, Lugard promoted ideas that were antithetical to functionalist theories. When discussing the appropriate response to witchcraft beliefs in his Dual Mandate he wrote: “stamping out such practices compels recourse to deterrent penalties, and since fear of death was the motive, no less penalty than death will be deterrent.”Footnote ⁵² Malinowski thought of sovereignty and the rule of law in a quite different way. Legitimacy did not reside in the commands imposed upon, or in spite of, existing social organization. If magic and sorcery formed part of a society's “tendencies” then they were valid expressions of customary law.

Malinowski thought that indirect rule, if it was to be properly implemented, had to steer a middle line between native and European customs. Indirect rule, as a species of “collaboration” between African and European institutions, had to “develo[p] by its own laws of growth and … its own determinism” rather than merely tracking Western positive law and “civilization.”Footnote ⁵³ He blamed missionary teaching, and, he wrote acerbically, their “enlightened influence,” for increasing the prevalence of witchcraft accusations in Africa.Footnote ⁵⁴ They cleaved too closely to the European side of what he called “culture contact.” He rejected the idea that African societies should be brought up under British power to be “caricature[s] of the European” and threw this idea out as a form of direct rule.Footnote ⁵⁵ Colonialism was creating new forms of social organization. In order to make this bargain worth wagering for colonized peoples some way had to be found toward a middle ground.

The implication was that a new source of law was arising out of the interaction of European and African social structures and, with it, the diminution of any claims by whites to be the sole arbiters of Africa's political destiny. In fact, Malinowski's legal theories were so radically “indirect,” pluralist, and sociological that they seemed to offer little theoretical space for any form of legitimate colonial law-making at all. What anthropologists and colonial officials meant by “indirect rule” suggested very different things. This contradiction between theory and practice—between ideas and institutional alliances—suggests that it was not the inherent utility of functionalism for colonial rule that secured its status in the later 1920s and 1930s, but instead its marginal role in the combined efforts of Oldham and Lugard to bolster their position on the “East Africa question.”

II. TRUSTEESHIP, ANTHROPOLOGY, AND INTERNATIONALISM

The triumph of Lugard in the policy sphere and the renewal of the 1926 Rockefeller grant five years later meant that functionalism was a relatively coherent “school” by the mid-1930s, with a lively seminar at the LSE and enough money to send students to the field for research. Yet divisions were opening up over whether anthropology should be thought of as a “pure” or “applied” social science.Footnote ⁵⁶ For Malinowski, making anthropological interventions in policy debates was a necessity. Others, like his South African student Hilda Beemer, thought that anthropology and administration should be kept apart. In a seminar at the LSE in 1933, Beemer argued that “a government anthropologist is an anomaly.”Footnote ⁵⁷ Malinowski responded as follows:

Malinowski's equation of tact with politics is striking, as is the gendered language of science he used in response to a female student's comment. The idea of “tact” suggests that he had no doubt about anthropologists’ abilities to diagnose problems and recommend reforms. The difficulty was getting them implemented, and this, he suggested, was only a matter of being charming enough. The ethical imperative was to intervene and present the “facts,” not to stand by in the face of possibly “disastrous” policy.

Yet no matter how tactful anthropologists thought they were being, officials often reacted to their ideas with bafflement, disagreement or disdain. For one thing, as the previous section showed, their ideas seemed totally out of step with practices of colonial justice. Furthermore, if administrators did know anything about anthropology, most tended to think in evolutionist or diffusionist, rather than functionalist terms.Footnote ⁵⁹ When one of Malinowski's most promising students, Audrey Richards, turned up in the field to begin her research, she was met by an administrator who, on hearing that she was an anthropologist, thought that he could interest her in a long drive to the far side of the district to examine a newly discovered dinosaur egg.Footnote ⁶⁰ The idea of anthropologists as curio hunting cranks was widely held. Responding to a query about the utility of anthropology for colonial administration, one civil servant recalled that the first official anthropologist on the government's payroll in West Africa, N. W. Thomas, “wore sandals … lived on vegetables and was generally a rum person.”Footnote ⁶¹ For administrators who were in touch with fashions in the metropole, views oscillated between considered skepticism and outright hostility to what Lord Elton, secretary of the Rhodes Trust, saw as the “intellectual nihilism” of anthropological relativizing of European and native cultures.Footnote ⁶²

More often than not social scientists existed as marginal figures seeking patrons and influence amidst the affectedly amateur administrative milieu of the interwar British colonial and civil service.Footnote ⁶³ So we should not be surprised that in 1932 Malinowski found himself hastily having to explain to a visiting Rockefeller Foundation officer why colonial authorities were blocking proposals to send anthropologists to the field. Administrators were getting increasingly worried about the idea of outsiders undertaking research in “their” colonies. This was deeply embarrassing. The IIALC's grant had been extended only a year earlier on the basis that it would allow anthropologists to make greater contributions to social scientific research in Africa.Footnote ⁶⁴ While some officials began to appreciate the role of experts in shaping policy, we should not confuse partial success for hegemonic practice.Footnote ⁶⁵ Much like the psychologists studied by Erik Linstrum, the overwhelming sense of anthropology's relationship with interwar imperialism was marked by “frailty” rather than power.Footnote ⁶⁶ As one colonial officer exasperatedly explained to gathered students at one of Malinowski's LSE classes in 1933: “Expert opinions are not a final criterion in British Government.”Footnote ⁶⁷

The politics of functionalist anthropology can only be understood as a pragmatic alliance between metropolitan supporters of indirect rule and anthropologists who offered a language of scientific expertise in support of the policy. This alliance contributed to the transformation of colonial discourse throughout the 1930s toward questions of welfare and development, concerns that, intrinsically or explicitly, precluded settler-colonial visions of world order. This shift needs to be seen in a metropolitan, a colonial, and also an international context. Both of social anthropology's most important patrons, Lord Lugard, and later Lord Hailey, sat as Britain's representatives on the League of Nations Permanent Mandates Commission. The pressure to uphold a policy of trusteeship, and Malinowski's own legal theories, were part of a broader series of transformations that brought the politics of the League to bear on debates about colonial policy. Concerns about welfare, development, and healthcare, and skepticism of settler-based visions of world order, all united under the banner of Leaguer internationalism.Footnote ⁶⁸ Social anthropology's major financial backers, the Rockefeller Foundation, and the bank-rollers of Hailey's African Survey, the Carnegie Corporation, shared a common skepticism about Britain's imperial interests. Both wanted to see evidence of a spirit of scientific administration and an openness to world markets and institutions instead of ruling colonial possessions for narrow national interests. Both were significant backers of the League.Footnote ⁶⁹

International concerns were always at the heart of social anthropology's relationship with colonial politics, whether in the discipline's interactions with questions of indirect rule in East Africa or Anglo-American ideas of social science that connected anthropologists across what Edmund Day, director of the Social Science Division at Rockefeller Foundation, called the “big water.”Footnote ⁷⁰ A commitment to the ideal of “trusteeship,” a common demand for expert administration in the face of settler expropriation, and association with the League connected all of the most important backers of social anthropology (Lugard, Oldham, the IIALC, and the Rockefeller Foundation). Malinowski maintained links with one of the foremost academic proponents of the League of Nations, Alfred Zimmern, and he lectured on anthropology and its possible contributions to international peace in Geneva.Footnote ⁷¹ Furthermore, two of the first functionalists to undertake fieldwork in Africa after training in Malinowski's LSE seminar, Lucy Mair and Audrey Richards, were prominent internationalists before they were anthropologists. Mair was a lecturer in International Relations at the LSE and wrote a book on League policy with reference to minorities in 1928. Richards was secretary of the Labour Department of the League of Nations Union between 1924 and 1928.Footnote ⁷²

It is unsurprising, then, that anthropologists’ theories of law, custom, and trusteeship should have chimed so well with Quincy Wright, author of the compendious handbook Mandates under the League of Nations (1930). When Wright sought literature to cite on the protection of customary law in League Mandates he liberally referenced the work of anthropologists.Footnote ⁷³ Malinowski's dispersed, sociological theory of sovereignty was part of a well-established interwar shorthand expressed by Wright when he wrote: “Clearly the political sovereignty of Hobbes and Rousseau, the legal sovereignty of Austin, and the metaphysical sovereignty of Hegel were of no use to the international lawyer, unless, indeed he took them as an invitation to commit suicide.”Footnote ⁷⁴ Anthropologists’ theoretical pronouncements were driven by internationalist concerns that they shared with Wright, contradicting the strain of political thought that understood sovereignty as the arbitrary, untrammeled power of sovereign leaders of nation states (the tradition that runs from Hobbes to Hegel).Footnote ⁷⁵

In a paper written toward the end of his life, and published posthumously in the Yale Law Journal, Malinowski argued that the “foundations of the future of international law, of collective security, collective prosperity, collective interchange” would have to be found in a new vision of international law. In typically bombastic fashion, he wrote, “I am convinced that the jurisprudence of the future can receive great help from contributions already made to the theory of primitive law.”Footnote ⁷⁶ Unsurprisingly for such a resolute self-publicist, these contributions were mostly his own. Malinowski flipped Hobbesian theories of sovereignty on their head by arguing that social laws precede positive laws because disputation can only arise out of debates within lower levels of customary law.Footnote ⁷⁷ Likewise, international laws should limit claims to national sovereignty by channeling conflicts into higher-level arbitration amongst disputants. The result was to hollow out the untrammeled prerogatives of rulers who expressed their power through “undetermined Sovereign Will.”

Perhaps it was unclear to his mostly American audience how similar these ideas were to the arguments he had made in relation to the proper functioning of indirect rule in the late 1920s and 1930s. The theory which, by the time he moved to Yale in 1940, he was calling “cultural determinism,” was much the same as the account of legal rules found in non-literate tribal societies set out in 1926 in Crime and Custom, with the added appendage of an international legal system overarching and connecting the cultural laws nested beneath it. Chris Hann and Keith Hart have argued that Malinowski's Argonauts of the Western Pacific (1922) was written as “an allegory of the world economy.” It might just as well be said that Argonauts provides an allegory of an idealized world legal system.Footnote ⁷⁸ For the functionalists, “law” and “economy” were intertwined.

If magical beliefs were central to many primitive societies, because they functioned to harness their populations’ passions and interests, then international law might work to institutionalize community amongst warring tribes of nations. Malinowski and the “functional school” of social anthropology, like the liberal internationalists associated with the League, were intent on presenting social organizations as “covenants without swords,” in the words of Jeanne Morefield, pace Thomas Hobbes.Footnote ⁷⁹ Placing functionalist anthropology in this frame revises recent historiography on anthropology and colonial rule by incorporating not only colonial and metropolitan, but also international, and internationalist, politics. That historians have overlooked this latter context is especially surprising considering that on the last page of Argonauts Malinowski made these aspects of his work so clear. “The study of Ethnology,” he wrote, was needed more than ever when “prejudice, ill will and vindictiveness are dividing each European nation from another.” The “Science of Man, in its most refined and deepest version should lead us to such knowledge and to tolerance and generosity, based on the understanding of other men's point of view.”Footnote ⁸⁰

Malinowski's theories of law and sovereignty puts functionalism in a tradition of recognizably Leaguer-associated interwar jurisprudence. His statement at the end of Argonauts betrays a more fundamental sympathy with an idea, common among contemporary internationalists, that future peace might be secured through the application of scientific expertise.Footnote ⁸¹ These shared interests explain the connections between Malinowski and the IIALC, despite their divergent ideological commitments: why they were in favor of his approach and why he was so keen to court their patronage in the first place. In this new frame we get a different sense of Malinowski's notes on Lugard's Dual Mandate when he wrote, “Indirect Rule is a Complete Surrender to the Functional Point of View.”Footnote ⁸² George Stocking quoted this statement and then went on to write that it was proof of Malinowski's functionalism being stuck “in the historical present, [thus] maintain[ing] a certain distance between anthropology and the actual process of colonial policy and practice, both on the ground and in the metropole.”Footnote ⁸³ This cannot be right. Malinowski's desire was to ally his methodology to Lugard's politics and so change the discipline away from the evolutionism of Frazer and Tylor and the diffusionism of Elliot Smith. But he simultaneously hoped to transform indirect rule from an institutional to a fully jurisprudential project.

Malinowski's work seems less distant from metropolitan and peripheral colonial policy if we pay attention to another piece of his penciled marginalia, this one on cultural change in Africa: “The goal or end result. African nationalism, not exactly on Europe's pattern but same type.”Footnote ⁸⁴ Malinowski's views about African cultural nationalism, promoted by his student at the LSE in the 1930s Jomo Kenyatta, paint a rather different picture of his “sense of the present” than Stocking's vision of political quietism suggests.Footnote ⁸⁵ Demanding that the legal order in Britain's colonial possessions should be determined by both Africans and Europeans placed significant strain on the legitimacy of a form of imperial rule based on exclusionary ideas of race and an ideology of civilizational hierarchy. By focusing on the politics of their African anthropology, Adam Kuper has come to the conclusion that Malinowski and his students at the LSE were “anticolonial” and Marc Matera has written about the extensive network of African radicals in London who found in Malinowski's seminars much to applaud.Footnote ⁸⁶ Despite these brushes with radicalism, however, it is important to stress that while functionalists spent a great deal of time and energy arguing for colonial reform in the interwar years they did not actively advocate resistance or argue for decolonization. Neither, as Carlo Rossetti has suggested, can Malinowski's politics simply be labeled anti-racist.Footnote ⁸⁷

Malinowski's discussions about the undesirability of creating “caricatures” of Europeans in Africa suggests the kind of implicit racism that was made wholly explicit when the contents of his fieldwork diaries were published in 1967.Footnote ⁸⁸ He was willing to promote his African students, but this support only went so far. The personal prejudices of individual anthropologists, including Malinowski, and the structural racism of the British academy, endlessly frustrated black intellectuals’ ambitions. Professional appointments and publishing contracts were subject to an effective color bar.Footnote ⁸⁹ Moreover, the functionalists’ focus on sub-Saharan African “traditionalism” amounted to a form of paternalism that never shook itself free from ideas of race, even if they did contribute to the dissociation of racial categories from biological discourse.Footnote ⁹⁰

Despite the persistence of a language of race in functionalist anthropology, Malinowski's ideas about jurisprudence contributed to the unsettling of a significant plank of colonial ideology. Functionalists opposed the pervasive idea that Western norms exist at the developmental apex of social evolution, as the alibi of indirect rule seemed to suggest.Footnote ⁹¹ An emphasis on functionalist contributions to comparative jurisprudence might therefore lead us to question the argument made by Paul McHugh that the interwar years saw the hegemony of an intellectual “empire of uniformity” dissolving non-Western indigeneity into a settler colonial political imaginary: “assimilat[ing] […] tribal peoples into the constitutional norm.”Footnote ⁹² According to McHugh this dominant ideology was only challenged by one text: M. F. Lindley's The Acquisition and Government of Backward Territory in International Law (1926).Footnote ⁹³

Functionalist anthropologists seemed to be strongly opposed to the “empire of uniformity” as well. They produced representations of colonized peoples perfectly able to govern themselves.Footnote ⁹⁴ They offered accounts of a vast plurality of civilizations existing within the bounds of the European empires, to be protected and recognized by international law. In their monographs and articles, indigeneity was explicitly not assimilated into the constitutional norm of settler colonialism. Functionalists’ writings radically undermined the British Empire's most pervasive ideological justification—its “civilizing mission.” According to the functionalists, all civilizations had value; none could claim to be the fons et origo of political order.

CONCLUSION—CULTURE, FUNCTION, AND SELF-DETERMINATION

F. E. Williams, government anthropologist in Papua, wrote critically in 1939 that there is “undoubtedly discernible in the work of many functionalists a tendency to champion existing primitive customs against interference by Europeans.” In its “extreme form,” he explained, “culture comes to be invested with a kind of sacrosanctity” which would “seem to forbid all positive interference in the name of good government or philanthropy.”Footnote ⁹⁵ Functionalist theories were not ideological deferrals of native self-government. They should be seen, as Williams understood, as appeals for protection of already existing structures of government from the incursions of missionary activity, technological development, and settler expropriation.Footnote ⁹⁶

These views can be likened, as Helen Tilley has argued, to Horkheimer and Adorno's,Footnote ⁹⁷ or to Henry Maine's homages to native custom, as Karuna Mantena suggests, but they are better understood as attempts to fix a conception of law that could apply to non-literate societies which seemed to possess none, and, because of this, might be steamrollered by European settler and business interests. This particular politics of protection had strong links to a pervasive language of trusteeship that drew significant strength from the founding of the League of Nations. If the disciplinary history of anthropology was shaped by its uncertain alliances with boosters of indirect rule, it is vital to understand that indirect rule was itself irrevocably changed by interactions with the League, which acted, as Susan Pedersen has written, like a “force field” around interwar colonial discourse.Footnote ⁹⁸

For Malinowski, the virtues of Lord Lugard's Dual Mandate (a policy proposing to protect colonies from foreign incursion and to benefit the subjects of colonial rule) would only balance out if African interests were made central and “the ‘get rich quick’ principle ruthlessly followed by settlers or exploiters” was thrown out.Footnote ⁹⁹ In a cagey, although, by implication, even more critical statement in his book Human Types (1938), Malinowski's student and eventual heir to his professorial chair the LSE, Raymond Firth, asked his readers the following question: “If the anthropologist is asked to help in making a policy of Indirect Rule more efficient, is this with the ultimate object of fitting the natives for self-government, with freedom of choice as to the form of political institutions that they may finally desire, or is it with the aim of simply getting a more cohesive community, with law and order better kept, taxes paid more promptly, and social services more efficiently carried out, all to remain within the framework of an Imperial system?”Footnote ¹⁰⁰

A year earlier, Firth had argued, in hardly conciliatory language, that the differential pricing of commodities sold to Europeans and natives in the colonies was the result of one of the “inscrutable privileges which accompany white domination.”Footnote ¹⁰¹ Firth's books praising the virtues of the precolonial Maori economy and the self-governing social structure on the Pacific island of Tikopia reveal where his sympathies lay when it came to the opposition between the values of freedom and the “white domination” inherent in the “Imperial system.”Footnote ¹⁰² Functionalists like Firth and Malinowski were skeptical of the official ideology of Lugardian indirect rule. Firth's concern about “fitting the natives for self-government” contained an implicit thrust toward self-determination that chimed with the lofty and some might say naïve ideals of Leaguer politics. His rather gnomic statement in Human Types suggested that anthropological expertise should be directed at building capacity for independence rather than applying expertise at merely instrumental ends.

Reconstructing functionalism's colonial politics creates a longer genealogy of challenges to the dominance of Western cultural and legal norms than Paul McHugh provided in his recent monograph on Aboriginal societies and the common law. McHugh argued that it was only after the Second World War that postcolonial legal discourse shifted from languages of “assimilation” to “self-determination.”Footnote ¹⁰³ While the interwar era of empire and internationalism was different from the world of nationalism that emerged after the Second World War, we can nevertheless find in the writings of Malinowski and his students an interest in framing questions of dependence, development, and cultural protectionism in the forms of internationalist legal discourse that McHugh sees as a peculiarly postwar phenomenon.Footnote ¹⁰⁴

However, Malinowski's attempt to cover the politics of these contested questions in the tactful language of expertise does not seem particularly convincing in its original context. His conception of sub- and super-national law as equilibrating customary conduits for the dissipation of conflict hardly reflected the politics of 1930s Europe, or the violence of the colonial world system. Neither were his ideas about the legitimacy of magic and witchcraft likely to change the minds of imperial judges who held more expressive and punitive ideals of justice.Footnote ¹⁰⁵ In the decades that followed functionalism's ascendancy, the irredeemable questions of self-determination, cultural particularity, and sovereignty would never cease to haunt those who, like Malinowski in the face of Hilda Beemer's questioning, wanted to justify their intervention in policy debates, apply their knowledge, and present “their facts” in opposition to possibly “disastrous” government actions. Despite the growing authority of the expert in the postwar years, the political implications of expertise were not going to go away with the consolidation of ever more knowledge, no matter how much twentieth-century social scientists wished things might be otherwise.Footnote ¹⁰⁶