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20 THE JOURNAL OF LIBERTARIAN STUDIES Winter
also employed when the offender was strong enough to resist a tonowi's decisions.
"Disease and death are the ultimate (psychosomatic) effect of this 'supernatural'
p~nishment."~~
This suggests one solution to the problem that might arise when a defendant
refused to submit to the sanction proposed by a tonowi, an infrequent but possible
outcome of the Kapauku legal process. As Fuller explained, one form of punishment
in primitive societies has often been "an exercise of magical powers on
the offender to purge the community of an uncleanliness. A similar purging was
accomplished through the generous use of ostraci~m."~' In fact then, the use of
magic was simply one form of ostracism, and another, the one mentioned in earlier
discussion, was also a solution when a judgment was not accepted. Ostracism
by all members of a confederation was the ultimate threat.95
Rules of Change
Pospisil documented two ways that legislation could occur. First, very simply,
law could change as custom changed. One example of such an occurrence had
to do with the Kapauku adultery laws. It was customary until a few years prior
to 1954 that an adulterous woman would be executed by her husband. However,
men, and particularly relatively poor men, came to realize that such a sanction
was too costly because of the high price paid for a wife. As a result, the punish-
ment was changed to beating or perhaps wounding the adultress. The change was
made initially by relatively poor men and was resisted by rich Kapauku Papuans.
However, the new customary sanction was upheld by tonowi in four adultery cases
observed by Pospisil during the 1954-55 period: "Thus what started as a more
economical practice among the poorer husband became customary law by being
incorporated into legal decision^."^^ In a similar fashion, of course, a law that
at one time is applied can loose its popular support and effectively be abolished.97
A second procedure for legal change was also observed among the Kapauku.
A change in one lineage's law of incest resulted from "successful legislation"
by a sublineage tonowi: "He succeeded in changing an old rule of sib exogamy
into a new law that permitted inuasib marriages as close as between second
cousins."98 This legislation was not authoritarian in the sense that its passage
forced compliance by others, of course. Rather its acceptance spread through
voluntary recognition. First it was adopted by the tonowi, then by more and more
young men in his sublineage, and ultimately by ronowi of other sublineages within
the same lineage. The head of the confederacy, a member of that lineage, also
ultimately accepted the new law, but other lineages in the same confederacy did
not, and thus incest laws varied across lineages within the same c~nfederacy.~'
The characteristic that distinguishes this legal change from the previous one is
that it was an intentional legal innovation initiated by a tonowi. Its adoption was
still voluntary, however. Popisil concluded that in primitive systems "legal
phenomena are constantly changing as does the rest of the culture."100