Welcome back to our discussion of Legal Systems Very Different from Ours, by Friedman, Leeson, and Skarbek. Today we are discussing chapter 8: Prisoners’ Law–a subject of continuing interest to me, as you know.
While I have questioned why people would bother having multiple legal systems–why have parallel or multiple systems, instead of just one–what if we begin from the opposite assumption: why not have multiple legal systems? After all, modern societies are vast, with many different interest groups. There is the state, which wants mostly to promote trade, economic activities, and tax revenues–and will attempt to cut down on violent, predatory human (and animal) behavior to the extent that it interferes with the former. Then there are individuals, whose interests–like avoiding taxation and making sure their kids marry good spouses–are very different from the state’s.
If you have a state that is really trustworthy and definitely wouldn’t use knowledge of your assets gained during a divorce dispute to increase your taxes, then you might be happy to run your interests through the state-run legal system, but if you have any doubts about the state’s potential trustworthiness, you might want a different system to handle your more intimate problems.
Prisoners, of course, don’t have much hope of the state caring terribly much about resolving their disputes. I can’t imagine that prison guards really care that much if Prisoner A cheats Prisoner B out of cigarettes, so long as A and B both keep quiet and don’t make trouble. Even the murder of Prisoner A by Prisoner B may not trouble the guards, especially if it relieves them of some of their duties.
So prisoners–despite generally being lawbreakers themselves–have a strong incentive to create their own legal systems, and they do:
Nevertheless, across every period of prison life that we know about, we consistently find that officials provide only some… of the safety that prisoners crave. In fact, prisoners have developed a legal system of their own to order the society of captives.
… the nature of California prisons is that there are many resources that are held in common. The pull-up bars, tables and benches, handball courts, and basketball courts are freely open to all prisoners, at least officially. In reality, however, there is far more demand to use these resources than there is available supply.
The guards simply do not care enough to ration access to the facilities; prisoners work that out among themselves:
One prisoner associated with a Northern Hispanic gang explains, “If a new yard opens up, you’re going to fight for that handball court, you’re going to fight for some tables… If you ain’t a Northerner and you come into that areas, you’re going to get stabbed.”
Gangs, like pirates and yellowjackets, wear their affiliations openly so you know not to mess with them. This, in turn, greatly reduces the chances of you getting stabbed.
Prisoners also have to set up their own systems of rules and enforcement because prisoners have a habit of doing illegal things, like selling drugs, and the government tends to look down on such activities and attempt to stop them (or at least take a cut of the profits). Prisoners can’t depend on prison guards to make sure they get paid for illegal drug deals, smuggled cigarettes, or hired violence.
For all these three reasons, in nearly any prison that scholars have studied, we find that prisoners create parallel, informal legal institutions.
The Prisoners’ Code–quoted at the beginning of the post–served California prisons prior to the 1960s. Adherence to the code meant that one was a “convict” in good standing with his fellows; those who violated the code were mere “inmates” in bad standing with their neighbors. Nobody likes a rat, and “inmates”, since they were regarded as having already violated the general trust, were fair game for victimization. Convicts, by contrast, had the general support of their fellows and so were protected.
The Code was fairly informal–not a written document, not formally agreed upon, not enforced by any particular body. It was just what everyone knew and agreed to, and who was and wasn’t a convict in good standing was just common knowledge.
Interesting, during this period, prisoners did not strictly segregate themselves by race and ethnicity. …
Edward Bunker, who served time in San Quentin prison in the 1950s and later, explained that, “although each race tended to congregate with their own, there was little overt racial tension or hostility. That would change in the decade ahead. what I did for a black friend in the mid-fifties is something I would never have even considered a decade later.”
Well damn. That sounds shitty.
The Code broke down because the prison population exploded and became much more ethnically diverse during the great crime wave of the late 20th century. California prisons went from housing about 5,000 people total around 1950 to over 170,000 people in the 2000s. A system based on simply knowing whether or not the guy you were talking to was generally regarded as a convict in good standing breaks down when the system has 170,000 people in it.
This was compounded by the fact that the prison population was becoming much more ethically and racially diverse. Whereas in 1951 there used to be two white prisoners for every one black or Hispanic prisoner, that ratio had reversed by 1980. Heterogeneity undermines decentralized legal systems because it confounds consensus.
Or in other words, diversity leads to centralized authoritarianism.
Here’s a graph, for the visually inclined:
Coinciding with these changes, there was a significant increase in prisoner on prisoner violence. … In response to this increasingly chaotic environment, prisoners turned to groups that today we often assume are the sources of disorder–prison gangs.
This makes sense–with too many inmates from too many backgrounds to enforce common norms via common knowledge, a new layer of organization–gangs–formed to fill the gap.
A formalist would say that we should make gangs official.
Gangs operate in a community responsibility system. Each prisoner must have an affiliation with a group, and each group is responsible for each members’ actions.
Sounds like Chinese law.
Of course, not everyone is a full member of a prison gang, just like not everyone is a paid member of the US government. Most prisoners, though, are affiliated to some group to some extent, following the rules set by their group.
Prison gangs often have written constitutions to order their internal workings. … There are clearly established leadership structures, and some of these positions are filled through democratic elections by a gangs’s members.
Sounds like pirates.
Prison gangs work to prevent conflicts between their members and resolve conflicts between their members and outsiders.
For example, if a member of one gang is delinquent in a drug debt to another group, that prisoner’s entire gang is responsible for it. He ma be forced to contact family on the outside to pay it off. The gang may pool their resources to pay it off. the gang may force the prisoner to work the debt off for the other gang… the gang itself might assault their own member to the extent that it satisfies the shot caller of the other group…
Gang-based governance outperforms the Prisoner Code because it requires less information about other people’s reputations. It is easier to know the reputation of a group than to know the reputation of every member of that group.
Seems like a lot of information processing works this way; I care less about the particular details of a random tree than “this is a tree.”
The authors argue that, even though gangs are usually blamed for crime, at least in the case of prisons, the rise of gangs coincided with a drop in crime:
… there was a nearly 90% decline in prisoner homicides from 1973 to 2012 (no data available from 1974-1979). During much of the 2000s, the homicide rate in prison was actually lower than outside of prisons. [!!!]
The homicide rate per hundred thousand prisoners was just over 60 (looks like 63 on the graph) in 1973, and bottomed out around 3 or 4 in 2001. There has been a slight increase in the most recent data, with about 8 murders per 100k in 2012.
Of course, prisons have probably taken measures to prevent inmates from killing each other, but I suspect that is difficult to convince people who are already in prison to be afraid of more prison, but it is easy to make them afraid of getting beaten.
But there are some ironies:
… despite a dramatic decline in the free world in racial prejudice since the 1940s, prison life is actually significantly more segregated today. Showers, telephones, handball courts, and even areas in the yard to sit are claimed by different racial groups and other races are not allowed to use them. Members of different races are not allowed to share cigarettes or meals together, or even live in the same prison cell.
Do the gangs prevent murder (if they do at all) by effectively threatening to make punishment painful for any would-be murderers, or by forcing people to segregate?
The authors note that organizing along racial lines solve information problems quickly–you can tell at a glance which group someone belongs to. But gangs have a variety of drawbacks as government systems–they tend to increase recidivism among their members, for example, and predatory behavior by senior gang members against lower-ranking members often goes unchecked because, being prisoners, they have nowhere else to go.
It is interesting that prison gangs are allowed to operate. Their primary purpose isn’t keeping peace and preventing murder (or so they claim), but doing business–selling drugs and the like. Peace is good for business; murder is bad for business because it gets the guards involved. One might think that prison guards would be uncomfortable with prisons being run by racial gangs that were formed to do illegal things, but either the guards don’t really care, it’s too hard to eliminate the gangs without a great deal more money and effort, or they’ve decided that life is just better with the gangs running things.
We’ve already discussed Pirate Law a couple of times, based on articles by the same author, from the same source material, so some of this chapter is redundant if you’ve been reading this blog for a while, but it’s interesting enough to be worth a review.
The authors begin with an amusing comment on pirates’ odd popularity:
Only the Mafia approaches Caribbean pirates’ criminal celebrity, but large numbers of children do not dress up as mobsters to collect candy on Halloween.
On to business:
Successful piracy required the cooperation of a sizeable pirate crew. The average Caribbean pirate ship was crewed by 80 men, and the largest crews consisted of several hundred. This raises the question of how pirates, who, as criminals, could not rely on government to provide their crews law and order and had no compunction about murdering and stealing for private gain, manged to cooperate with one another to engage in piracy.
The fact that “even criminals” develop legal systems of some sort to regulate their relations with each other is one of the things I find fascinating about humans. Social organization springs up even in the most unlikely-seeming places, like prisons and criminal gangs, suggesting that order is a spontaneous and natural fact of human life (though the form that order takes varies).
Whatever order criminals form among themselves is also interesting because it is, by necessity, separate from the dominant legal systems; most criminals do not have the option of turning to the police should a fellow criminal stiff them on their share of the booty. (I suppose this has some parallels with the Chinese case, as the authors described it.)
Pirates dealt with their problems by devising what is known as the “Pirate Code,” a set of laws that provided for the basically democratic conduct of the ship and division of the booty, with the captain in charge during battle. Since we already discussed these in previous posts, I will skip over the details, but you can read the book (or my previous posts on the subject), but suffice to say that pirates developed constitutions with voting, checks and balances, etc, that parallel democracy as developed in places like the US:
The institutional features of pirate law should sound familiar. They are more-or-less those of the American system of government: constitutional democracy, separated powers, and checks and balances. …
The most notable difference between pirate law and the American system of government is not their substance but when they were created and by whom. Pirate law was created by mostly illiterate, violent criminals in the early eighteenth century. The American system of government was created by the most educated and respected Europeans of their era more than half a century later.
The authors argue that pirate law must have been successful since piracy not only existed, but flourished, despite quite a bit of forceful opposition from European governments.
On pirate flags:
Most bandits do not announce their presence to their victims and potentially the authorities by publicly displaying a distinctive bandit logo
You sure about that, bud? Most criminal gangs I am familiar with, from the Mafia to street gangs to outlaw motorcycle clubs, advertise their status as criminals in rather obvious ways, like clothing patches, facial tattoos, or dapper Italian suits.
And it’s not just humans: wasps and bees, coral snakes and rattlesnakes, poison dart frogs and monarch butterflies, amanita muscaria and blue ringed octopuses all signal “Stay away! I’m trouble!”
refers to the appearance of an animal that warns predators it is toxic, distasteful, or dangerous. This warning signal is associated with the unprofitability of a prey item to potential predators. The unprofitability may consist of any defences which make the prey difficult to eat, such as toxicity, foul taste or smell, sharp spines, or aggressive nature. Aposematism always involves an advertising signal which may take the form of conspicuous animal coloration, sounds, odours or other perceivable characteristics. Aposematic signals are beneficial for both the predator and prey, since both avoid potential harm.
Of course, Pirates fly the Jolly Roger for the same reason:
Pirates had a well-deserved reputation for mercilessness toward attackers [sic], which they earned by adhering t a simple policy: surrender or die. Pirates adopted this policy to minimize the cost of taking prizes. Violent confrontations with prey were expensive. … More peaceful piracy was therefore more profitable piracy secured, ironically enough, by pirates’ promise to slaughter resistors. …
To profit from this fact, pirates needed to ensure that their victims knew when they were being accosted by pirates… With few exceptions, only pirates flew the Jolly Roger, which is precisely why they did so.
And non-pirates who might like to dabble in the occasional ship-theft are unlikely to dilute the power of the Jolly Roger via mimicry due to the governments’ promise to execute anyone flying the Jolly Roger. This is kind of like if humans couldn’t tell the difference between coral and milk snakes, and so killed all of the milk snakes they could get their hands on: there would soon be pressure for milk snakes to not be orange.
Human criminal gangs make efforts to protect their symbols, to prevent dilution and ensure clear signalling power. The Hells Angels, for example have trademarked/copyrighted their symbols:
In March 2007 the Hells Angels filed suit against the Walt Disney Motion Pictures Group alleging that the film entitled Wild Hogs used both the name and distinctive logo of the Hells Angels Motorcycle Corporation without permission. The suit was eventually voluntarily dismissed, after the Angels received assurances from Disney that the references would not appear in the film. …
In October 2010 the Hells Angels filed a lawsuit against Alexander McQueen for “misusing its trademark winged death heads symbol” in several items from its Autumn/Winter 2010 collection. The lawsuit is also aimed at Saks Fifth Avenue and Zappos.com, which stock the jacquard box dress and knuckle duster ring that bear the symbol, which has been used since at least 1948 and is protected by the U.S. Patent and Trademark Office. A handbag and scarf was also named in lawsuit. The lawyer representing Hells Angels claimed: “This isn’t just about money, it’s about membership. If you’ve got one of these rings on, a member might get really upset that you’re an impostor.” … The company settled the case with the Hells Angels after agreeing to remove all of the merchandise featuring the logo from sale on their website, stores and concessions and recalling any of the goods that have already been sold and destroying them.
Strictly speaking, what traditional Islamic courts enforced was not Shari’a, God’s Law, but fiqh, jurisprudence, the imperfect human attempt to deduce from religious sources what human law ought to be. That fact helps explain how Sunni Islam was able to maintain four different but mutually orthodox schools of law. There could be only one correct answer to what God wanted humans to do but there could be more than one reasonable guess.
This sounds like a bit of technicality that I am skeptical of people observing in practice, so I went over to Pew.
According to the survey findings, most Muslims believe sharia is the revealed word of God rather than a body of law developed by men based on the word of God. Muslims also tend to believe sharia has only one, true understanding, but this opinion is far from universal; in some countries, substantial minorities of Muslims believe sharia should be open to multiple interpretations. …
Although many Muslims around the world say sharia should be the law of the land in their country, the survey reveals divergent opinions about the precise application of Islamic law.
Pew doesn’t distinguish between “sharia” and “fiqh”
In 17 of the 23 countries where the question was asked, at least half of Muslims say sharia is the revealed word of God. (For more information on sharia see text box.) In no country are Muslims significantly more likely to say sharia was developed by men than to say it is the revealed word of God. …
In 17 out of 21 countries, “there is only one interpretation of sharia” beat “there are multiple interpretations.”
Support for making sharia the official law of the land varies significantly across the six major regions included in the study. In countries across South Asia, Southeast Asia, sub-Saharan Africa and the Middle East-North Africa region most favor making sharia their country’s official legal code. By contrast, only a minority of Muslims across Central Asia as well as Southern and Eastern Europe want sharia to be the official law of the land.
In South Asia, high percentages in all the countries surveyed support making sharia the official law, including nearly universal support among Muslims in Afghanistan (99%). More than eight-in-ten Muslims in Pakistan (84%) and Bangladesh (82%) also hold this view. The percentage of Muslims who say they favor making Islamic law the official law in their country is nearly as high across the Southeast Asian countries surveyed (86% in Malaysia, 77% in Thailand and 72% in Indonesia).
In sub-Saharan Africa, at least half of Muslims in most countries surveyed say they favor making sharia the official law of the land, including more than seven-in-ten in Niger (86%), Djibouti (82%), the Democratic Republic of the Congo (74%) and Nigeria (71%).
Support for sharia as the official law of the land also is widespread among Muslims in the Middle East-North Africa region – especially in Iraq (91%) and the Palestinian territories (89%). Only in Lebanon does opinion lean in the opposite direction: 29% of Lebanese Muslims favor making sharia the law of the land, while 66% oppose it.
So I have a little skepticism of the authors’ claim that Muslims normally distinguish between Sharia and Fiqh and that they’re totally okay with multiple, co-existing interpretations of the law.
More likely, the average Muslim believes multiple, vaguely contradictory things about Sharia that are basically piety signals, because most Muslims are just trying to live their lives and feed their families, not legal scholars.
“Should we run the country according to God’s laws?” the pollster asks, and the faithful reasonably respond that “Yes, of course we should run things according to God’s laws.”
“Does God’s law come from God or from man?” the pollster asks, and the faithful responds, “From God, obviously. It’s in the name.”
With those caveats, let’s get back to Legal Systems Very Different from Ours. The authors then explain the five-fold division of acts in Islamic law, which I have converted to a rough table:
Obligatory act: God rewards for performing, Punishes for not performing
Recommended act: God rewards for performing, No punishment for not performing
Permissible act: No reward for performing, No punishment for not performing
Offensive act: No punishment for performing, Reward for abstaining
Unlawful act: Punishment for performing, Reward for avoiding
… Islamic law is more nearly a system of morality than a system of law, since its rules primarily describe how one ought to act, only secondarily the legal consequences of action. …
How was fiqh deduced and applied? The scholar started with the sources of revealed knowledge–the Koran itself and the words and acts of Mohammad and his companions as reported in hadith, traditions. From that information a sufficiently learned religious scholar, a mujtahid, deduced legal rules. Over time, the scholars separated into four schools… The schools were generally similar but differed in the details of their approaches to interpretation and the rules they deduced; each regarded the others as orthodox.
Any Muslim readers want to weigh in on how accurate this is?
Anyway, Islamic law then developed over the years the same problems of any legal system: bloat, excessive writing, technological and cultural change, and multiple conflicting interpretations, all of which could make it difficult to determine what the “original” idea of the law had been.
It was necessary to decide for each hadith how certain one could be that it was neither invented by someone at some point down the purported chain [of legal descent] nor inaccurate due to an error in transmission.
The basic rule accepted by all schools was that if there were a sufficient number of independent chains supporting the same hadith, it could be accepted as genuine with certainty.
Muslims inventing the blockchain.
It followed that if at any one time all of the scholars were agreed upon a question, that question was permanently settled.
Law and the State:
After first few centuries and until the rise of the Ottomans, political authority in the Islamic world was fragmented. The local rulers were frequently foreigners to the populations they ruled… What they wanted from the legal scholars was support for their legitimacy. … they were willing for the most part to leave the legal system in the hands of the scholars. … Think of the resulting system as what Anglo-American common law would be if law professors ran the world, law defined not by the precedents set by judges but by the medieval equivalent of law review articles.
So… does it work? How well does it work? In the chapter on Icelandic law, the authors are willing to actually interrogate why Icelandic law broke down (in the Middle Ages) and what made it initially effective and then ineffective. There’s a little discussion in the chapter on Chinese law on how people managed to conduct business effectively despite (or because) of the lack of relevant formal legal rules. But in general the authors shy away from asking how effective the legal systems actually are, which seems like a critical piece of information. If a system works well and the people in it are pleased with the results, then it seems reasonable to see if it is a system with parts that can be felicitously copied, borrowed, or implemented; if a system works badly, (as many do) then it is wise to examine what makes it dysfunctional and try to avoid those components in our own system.
Of course, the functioning of many legal systems probably does come down, as Confucian scholars might say, to the ethics/wisdom inherent in the people in them.
From the perspective of modern American law, the final two stages of the process look like our system turned upside down. In ours,t he court of first impression applies the law to the facts and produces a verdict. If the case is appealed, the appeals court takes the facts as already decided and gives a second and authoritative opinion on the law In their system, the opinion on the law came first, provided by the mufti, followed by the qadi’s application of the law to the facts as he saw them. Under most circumstances there was no way to appeal the qadi’s verdict.
The authors note that they have described the “traditional account” of how Islamic law developed; some modern scholars claim this is all kind of retconned from existing Arabic law and modified over time as new provinces were conquered. I’m sure this is also to some extent true, as whatever laws people were already using on matters like marriage and murder probably persisted post-conversion.
Anyway, so there are multiple “schools” of Islamic legal thought:
While the schools differed in detail they regarded each other as mutually orthodox. In this respect as in others, the history of Islamic law both resembles and differs from that of Jewish Law. The schools of Hillel and Shammai tolerated each other for several generations, but eventually the majority school suppressed the minority. In the parallel Islamic case, the four schools of Sunni law have continued their mutual toleration up to the present day. …
The four schools of law are all Sunni; the Shia have their own schools and legal rules… While different schools were dominant in different areas, a medieval Muslim city could have had separate courts for the four Sunni schols, the Shia, and the other tolerated religions. It was a polylegal system; disputes within each community would go to that community’s courts. Non-Muslims had to use Muslim courts for criminal cases but had choice of law for civil matters. … What happened in a dispute between parties adhering to different legal systems is not entirely clear…
I wonder how this worked in practice.
While law was in theory independent of the of the state, in practice, in most historical Islamic societies, state-created rules played a significant role. … One reason for the development of parallel state curts may have been the desire of the ruler to maintain control A second was that fiqh had serious limits as a legal system. …
The authors then look at the “breakdown” of the Islamic legal system.
The breakdown of the traditional legal system may, as Hallaq argues, be due to the rise of the nation state, but the connection between that and western imperialism is accident not essence. The causes that led to the rise of the nation state in the west, the replacement of feudalism by absolute monarchy, operated in the Islamic world as well… The annexation of thewaqfsby the Ottoman authorities parallels the earlier confiscation of the lands of the monasteries by Henry VIII. The result in both cases was to eliminate institutions that competed with the sate for power and resources.
This is the kind of theory I like.
Then there is a section with more details on the actual content of the legal code, eg:
The part of fiqh that applies to homicide or bodily injury is called jinyat and appears to be based on the pre-Islamic rules of Arab blood feud.
Blood feuds are interesting and I think there is a chapter later on that looks at feud systems in more detail. But I wonder how these systems translate over geography–that is, across the Islamic world, from Morocco to Indonesia. Did the spread of Islam result in these areas adopting laws that were originally Arabian, or did each region effectively retain its own existing legal system? And how is it all working out today?
The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system. Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system. State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question). Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws. Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence. The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements.Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.
Jewish law may be the best-recorded legal system in the history of the world; there are hundreds of thousands, perhaps millions, of pages of surviving primary sources covering about twenty-five hundred years.
I think I’ve mentioned before that I had this idea once back in college to do a project on parallel legal systems like Gypsy law, and thankfully someone talked me into switching to Jewish law, mostly out of concern for my physical safety.
But Jewish law is also massively better documented.
One thing I find amusing about Jewish law is that Jews seem to actually like the subject. I can’t tell if that’s something people feel like they’re supposed to say in the same way that people feel like they should claim to like school even if they actually hated it, but they certainly give the impression of being rather enthusiastic on the subject. Where the traditional practice of Chinese law can be summarized as “Please go away and leave us alone,” or “good people don’t need law,” the Jewish approach seems like “More laws, please.”
Problems of Divine Law
Jewish law was, in theory, based on a single unchangeable source–the Torah [first five books of the Bible.]… Basing the law in this way rather than on custom, precedent or legislation raised two problems shared with other legal systems similarly based, including Fiqh (Islamic Jurisprudence) and American Constitutional Law.
Note: I wrote a post about this: The Talmud and the Constitution. The trouble comes in when two scholars/judges/etc disagree about what exactly the law should be:
In a system that views law as the creation of a legislature, king, or court of last resort, the same authority that made the law can settle disagreements about it. That does not work for a legal system viewed not as created but as discovered, deduced from divinely inspired sources.
Obviously you need some way to resolve disputes about what exactly the laws should be; you also need some way to change laws should new circumstances arise that necessitate doing so.
The initial solution to the problem of legal uniformity was a simple one. Truth is not determined by majority vote but law can be. … the legal scholars took the position that the interpretation to be followed by judges was determined by the views of the majority of legal scholars.
There follows an amusing story about some rabbis who were arguing about whether an oven could be cleaned. The majority of rabbis held one opinion; the dissenting rabbi’s opinion was closer to the original religious text. God steps in on the dissenting rabbi’s side, at which point the other rabbis basically tell Him to back off, this is a rabbi matter.
His position was summed up by another Rabbi as “The Torah has already been given at Mount Sinai. We pay not attention to a heavenly voice because You have already written in the Torah at Mount Sinai, ‘Follow the Majority.'”
According to the story, God smiled and said to himself, “My children have bested me.”
Most people I have discussed this story with object to it. They just can’t fathom the idea of telling God to buzz off and let the humans interpret divine law. Yet, as a parent, there have certainly been times when my children, as God put it, bested me. And in those moments I didn’t feel irritated or angry, but proud of them for their growth and maturity.
Anyway, as for the Jews, the authors make a good point that you’re much more likely in normal life to encounter cranks and grifters claiming divine revelations than you are to encounter actual divine revelations, so it’s a good idea to just reject divine revelations.
There is an interesting parallel between the conflict between the two schools of Jewish law, ending in the victory of one of them, and the development of Muslim law almost a thousand years later. In the early centuries of Islam, Sunni legal scholars divided themselves into four schools of law named after, and to some degree based on the teaching of, four of the early legal scholars. The schools differed in details of legal interpretation but regarded each other as mutually orthodox–and still do. …
One solution to the problem of [Jewish] legal diversity was the development of geographical schools Judges in France mostly went by the legal opinion of whoever was currently the most prominent legal scholar among French Jews…
This makes sense, given the difficulties of disseminating legal opinions to a diasporic population spread thinly across thousands of miles before the invention of cheap printing and fast transportation.
One of the other difficulties with Jewish law is that after 2,500 or so years, so much has been written that the whole mass has gotten terribly unwieldy:
Once the Talmud was complete, legal scholarship was built on top of three layers. The first was the Torah. That was followed by rabbinic legislation and commentary and interpretation based on the Torah, culminating in the Mishnah. That was followed by commentary on the Mishnah, culminating in the Talmud. Scholarship thereafter consisted largely of commentary on the Talmud, which had the previous two layers embedded in it, along with additional legislation. Further layers were added as one or another work based on those sources–the Mishneh Torah of Maimonides is one example–itself became the subject of further commentary.
This has generally been resolved via books summarizing previous decisions accompanied by more detailed legal books if one needs them, and the development of the previously mentioned local or communal law. Of course, sometimes this led to conflicts between different levels of interpretation or commentary.
There follows an interesting discussion of how marriage customs and especially the laws around marriage could have been modified to increase parental control over whom their children marry, but it is too long to quote here–you will have to read the chapter yourself.
A theory on kosher rules:
Careful observance of such rules is evidence that the observer believes in the religion, since he is willing to bear substantial costs in order to conform to its requirements. The fact that he believe sin the religion means that he will be reluctant to sear, falsely, for fear of supernatural punishment.
Well, maybe. It’d be nice to have some data on the matter.
Maimonides [a famous Jewish legal scholar] goes on to describe in some detail the rules associated with the avenger of blood,t he heir of a killer’s victim, and the cities of refuge–of which, like kings of Israel, there had been none for more than a thousand years. A killer was supposed to go to one of the cities of refuge, be brought from there to the court of the city where the killing occurred, tried and, if guilty of deliberate murder, put to death by the avenger of blood. If found guilty of unintentional killing he was to be sent back to the city of refuge to remain there until the high priest, also nonexistent in Maimonides’ day, died. En route to or from the city of refuge he could be killed by the avenger of blood without penalty.
That looks rather like the remnant of a pre-existing feud system, untidily integrated into its replacement.
…the Amish have done surprisingly well in their relations with the US government. In 1955 Social Security became mandatory for self-employed persons. The Amish objected to participating, in part on the basis that they believed they were religiously obligated to take care of each other and should not be transferring that obligation to the state, in part on the grounds that insurance programs, which Social Security at purported to be… are “gambling ventures that seek to plan and protect one’s fortune rather than yielding it to God’s will.” Many refused to pay Social Security taxes, with the result that the IRS eventually began filing liens on farm animals and other assets. The conflict was only ended in 1965, when federal legislation exempted self-employed Amish from having to pay Social Security taxes, an exemption later extended to Amish employees in Amish owned businesses.
Welcome back to our discussion of Legal Systems Very Different from Ours., by Friedman, Leeson, and Skarbek. I apologize if today’s post is a bit rushed; I have been extremely busy lately with the homeschooling and normal parenting and it has left me asleep during my normal writing hours.
Today we are discussing the Amish. (Have I written anything significant on the Amish? A quick browse through the archives suggests only in passing.) The Amish, as I’m sure you already know, are one of America’s fastest growing religious groups in an era when most other Christian denominations are shrinking:
This growth has continued despite the fact that almost no one converts to Amish-ism, the Amish lifestyle involves a ton of manual labor that most people assume is unpleasant, and a decent percent of Amish children leave the faith each generation.
To be Amish, one must simultaneously abide by two legal systems: The US system and the Amish system. This sounds rather annoying to most non-Amish, who find the US system alone laws enough. The Amish have no prisons, though, so the authors discuss how the Amish effectively enforce Amish law:
While subject, with a few narrow exceptions, to U.S. and Canadian law, the Amish have succeeded in maintaining their own systems f rules (Ordnung) and enforcing them on heir members, ultimately by the threat of excommunication and sunning (Meidung).
Slightly aside: We talk a lot in these legal discussions about coercion, which obviously gets people to put up with annoying laws, and last week we discussed the desire of people like the Gypsies to be around their own families, which also encourages them to follow the rules of their parallel legal system, but it occurs to me that a group like the Amish have a third factor, which is that being Amish effectively shields them from a lot of the inconvenience, legal or otherwise, that the rest of us have to deal with.
For example, you, office slave, may be “on call” even in the evening and weekends. Your boss may email you with a sudden, “must be done now” project on Friday evening or expect you to come in on Saturdays. I remember many Saturday mornings spent coloring under my mother’s desk while she worked.
The Amish have to muck out a lot of stalls, but they don’t have to spend much time dealing with the IRS or filling out tax forms; it’s a trade-off between labor-saving technology and paperwork.
Which means that the Amish, in order to keep doing their Amish thing, have to make sure that the borders of Amish-dom, which protect them from the evils of paperwork and enmeshment in annoyingly non-amish systems, have to be defended. And the borders of Amishdom are, of course, which technology you use.
If that sounds a little recursive, let me try again:
Being Amish confers certain benefits on the Amish that they enjoy, like not doing a lot of paperwork and getting to be around other Amish people
Some of these benefits are informal (friendships), some are practical/functional, and some are legal (ie, leaving school early).
The Amish only get to enjoy these benefits if they stay Amish. If the fringes of what it means to be Amish start to fray, then “Amish” loses some of its meaning and the benefits slip away.
As a result, the Amish are very careful about which new technologies they allow, checking carefully how the technology will change their lives.
The basic unit of an Amish community is the congregation, typically of twenty-five to forty households; there is no higher level with authority over the individual congregation. Since the Amish are unwilling to build churches or meeting houses, the number of households in a congregation is limited to the number that will fit in a large farmhouse or barn.
Wait, they don’t have churches? What do they do at church? How does this work?
Each congregation has its own version of the Ordnung, some stricter and some less strict… Congregations whose Ordnungen are about equally strict may be in fellowship with each other, making them part of a single affiliation…
The typical congregation has a bishop, two ministers, and a deacon all of whom normally serve for life and none of whom have an formal training. They are unpaid. Ministers and deacons are selected by lot out of a group of ten men nominated by the congregation…
How does this organizational structure work? Is there any formal structure? Any organization that formally owns property, or is it all hosted in privately owned barns?
The Ordnung specifies the rules that members of the congregation are required to live by. Typically they include prohibitions on activities such as filing a suit, serving on a jury or joining a political organization, along with the use of those modern technologies viewed as likely to disrupt the Amish social system…
Basically, nothing that would enmesh you or other Amish with the outside world.
The ordnung is specific to the congregation, which has no legislature. What changes the ordnung is the practice of the members and the response to it by the leadership.
There is very little overt coercion in this system (though possibly plenty of soft coercion). Should someone break the rules (say, by riding in a car or wearing modern clothes,) they’ll first be visited by the church authorities and encouraged to confess their sins. If that doesn’t work, they’ll be encouraged to confess some more, and if that doesn’t work, everyone will avoid them for six weeks.
If that still doesn’t work, they’ll be kicked completely out of the community and shunned.
On the one hand, getting shunned isn’t nearly as bad as going to prison, but on the other hand, losing all of your friends and not being able to talk to your family just because you want to drive a car is pretty harsh.
The authors ask whether the Amish can be described as a democracy or a competitive dictatorship:
If it is a dictatorship, it is a competitive dictatorship. A member who is sufficiently unhappy with the ordnung of his congregation … is free to shift to a nearby congregation better suited to his tastes. Some congregations are, in effect, territorial sovereigns, so that changing congregations requires a geographical move. In other communities, especially where there are congregations with substantially different Ordnungen near each other, it may be possible to shift allegiance with no shift of residence.
The Amish get on reasonably well with the outside world:
Romani in most places have been subject to hostility from outsiders and themselves regarded outsiders as ignorant and unclean. The Amish, in contrast, appear to get along with their neighbors… Non-Amish may view hem as quaint, but for the most part without hostility and even with some admiration.
That’s because the Amish don’t steal chickens and their communities aren’t trash-filled ghettos.
You know, the authors state in the introduction or thereabouts that each of the legal systems discussed in the book are valid systems that have worked for the people in them (otherwise they wouldn’t exist) but frankly, I don’t think the Gypsy system works all that well for the people in it.
Anyway, the authors propose that people’s generally positive perceptions of the Amish account for their decent relationships with the state, including legal exemptions such as not being required to pay Social Security taxes, exemption from the draft, and leaving school after eighth grade. I think it’s more that the Amish are competent, orderly, and well-behaved, which both makes people generally favorable toward them and equips them to push back against government intrusion into their lives.
To be fair, Gypsies probably also manage to avoid paying Social Security taxes, evade the draft, and drop out of school early, just via less legal means.
Since people generally like the Amish, according to the authors, they have good relations with their neighbors:
Some non-Amish operate “Amish taxi services,” providing automobile or van transportation for Amish when they need to go farther than horse and buggy can conveniently carry them…
In an earlier chapter, I suggested that in North America toleration might eventually destroy the status of the Romani as self-governing communities by making it too easy for unhappy or ostracized members to defect into the surrounding community. Along similar lines, it is arguable that the emancipation of European Jews, starting in the late eighteenth century, was responsible for the decline of the Jewish communities as effectively self-ruling polities. Yet the Amish have maintained their identity, culture, and ordnung, enforcing the latter by threat of ostracism, despite the lack of any clear barrier to prevent unhappy or excommunicated members from deserting.
Despite… or because? As the Amish who don’t want to be Amish depart, those left behind are the ones who most want to be Amish. It’s a kind of sifting, natural selection in action: over time, the less Amish leave and the Amish themselves become more intensely “Amish.”
The same process is at work in Orthodox Jews, who have enough children that the defection of 50% or so of them each generation to less rule-oriented strains of Judaism (and from there, to atheism and assimilation) still leaves behind a growing core of people who effectively decided to stay Orthodox.
A similar process could happen for the Gypsies; I know nothing about their population numbers.
The same process has certainly happened for various regions of the US and on a smaller scale, black communities. Rural communities have lost people to cities, leaving behind the people most inclined toward rural lifestyles or least capable of moving to a city; racial integration has seen the smartest black kids move from formerly segregated black communities to college and then careers. We could expand this pattern to the global level, with people from various countries immigrating to new homes in other countries.
This proposes an interesting pattern for modern life: the flow of people who are less-ideal members of their own group into a kind of vast, undifferentiated city-fied middle, while the groups on the edges, the ones that lose members, become culturally (and biologically, for that matter,) more and more distinct. (Is this… happening with trans people, too?)
In the Amish case, this seems to work because they produce enough children to keep the numbers in their favor and as far as I know, aren’t just losing their smart people. (High rates of defection by your smartest will turn your group into into idiots over time.)
A critic of he Amish might argue that their upbringing, with schooling ending in eighth grade, leaves potential defectors unqualified for life in the modern world. The obvious response is that there are a lot of jobs in the modern world for which the willingness to work and the training produced by an apprenticeship starting at age fourteen are better qualifications than a highschool diploma.
Plenty of Hispanics leave their families behind, and move to America with less than an 8th grade education + apprenticeship, and still find jobs–and they have to learn a whole new language and deal with the complexities of being international immigrants. Unhappy Amish can just move to Mennonite communities.
As some evidence of the adequacy of Amish education, Amish seem to do quite well at starting and running their own small-scale businesses.
Amish education isn’t that different from what everyone’s education looked like back when the guys who built nukes and sent rockets to the moon were in school. People massively over-rate the importance of highschool and college degrees for pretty much everyone whose career doesn’t require advanced maths or medicine. People observe that smart people tend to have degrees, and so assume that it’s he degrees that make them smart, just as you might observe that rich people have yachts, and therefore yachts make people rich.
The Amish know they don’t need these advanced degrees to do the same kinds of farm work that people were doing without them back in the eighteen hundreds, so they simply avoid them. Not having to save up 40k-200k per child for college (or pay for houses in “good neighborhoods” “for the schools”) allows the Amish to invest more resources into actually producing children, which is why folks leading a “subsistence lifestyle” doing backbreaking labor all day who never even saw a highschool can “afford” more children than you, a person living in a modern industrial city.
Modernity selects for those who resist it.
Of course, the Amish lifestyle isn’t perfect and it is probably coercive in various ways. I don’t know; I haven’t heard any exposes of Amish–dom in the same way that I’ve heard people from various more “normal” evangelical Christian type cults complain about their upbringings. This is probably because the Amish are an older and more stable group that has settled into patterns that are basically beneficial toward their members, whereas new religious groupings tend to turn exploitative and flame out within a couple of decades.
That’s all for today. What did you think? Has anyone ever met any Amish? Are you ex-Amish yourself? Take care, and we’ll discuss the next chapter next week.
Welcome back to Leeson, Skarbek, and Friedman’s Legal Systems Very Different from Ours. Today we will be discussing Gypsy law, in a chapter that I wouldn’t have believed if I hadn’t already read Isabella Fonseca’s Bury Me Standing: The Gypsies and their Journey.
Usage note: I use “Gypsy” instead of “Romani” for the same reason that I refer to “Germans” and not “Deutsch”: because “Gypsy” is the proper English ethnonym. Romani is not an English word, and it doesn’t even translate to Gypsy–it means “people,” and you and I are people, too. In American parlance, “Gypsy” is neither an insult nor a slur, so I will not dance around like it is one.
Furthermore, I am opposed to ethnonymic creep; it is a very annoying part of my job here at this blog to try to figure out what group I am reading about if the name it goes by has changed over the course of years and I cannot track down reliable references. This recent trend of accelerated ethnonymic shift exists mainly to give intellectuals with lots of time on their hands to learn the latest terms something to feel superior about while confusing ordinary people, who are left wondering “Huh? Romani?”
Don’t worry; we here at EvX have enough ways of feeling superior without resorting to confusion–like semicolons.
Background: The Gypsies are a peripatetic ethnic group that left India about a thousand years ago and have since spread across the rest of the Indo-European world. They have traditionally filled the economic niche of traveling blacksmiths, tinsmiths, tinkerers, salesmen, and occasional chicken thieves. Interestingly, in places where the Gypsies never reached, like Ireland, an equivalent group of people emerged to fill the same economic niche–the Travellers–suggesting that this is a real economic niche that people needed filled, albeit minus the part about the chickens.
Globally, there are about 2-20 million Gypsies, with concentrations in the United States, Brazil, Romania, and Turkey. About 1 million Gypsies live in America, a population bigger than the Amish. It’s hard to find really good statistics on Gypsies because Gypsies don’t believe in keeping statistics, much less cooperating with government officials who seem intent on prying into their business and pinning them down. Note that because Gypsy communities are widely scattered across the globe and have not had, until recently, any good way of communicating with each other across great distances, what is true of one band or group may not be even remotely true of another group. Gypsies in one country may be settled, school-going city dwellers, while Gypsies in another country move about in caravans. Few sell horses these days (but many sell cars). Some speak the dominant local language; some speak a Gypsy variety. Some Gypsy languages are mutually intelligible; others are not. To say anything of Gypsies as a whole is probably wrong, so please forgive the limits of language.
Back in the Middle Ages, people didn’t mind the traditional Gypsy lifestyle too much, so long as chicken thefts were kept to a minimum. People needed tinkerers, and if the Gypsies didn’t send their children to school, well, neither did the locals. The traditional lifestyle clashes tremendously with the modern state, which wants people to stay put, carry ID, fill out their forms, pay taxes, and send their children to school. Stalin grounded the Gypsies of the Soviet Union (and stole their gold–not that they were rich to begin with, but you know, people can’t have anything nice in the Soviet Union) so the state could better control them. Gypsies in less coercive modern states have been less coercively encouraged to settle, to varying degrees of success.
My impression is that America has been less coercive toward its Gypsies, encouraging mandatory school attendance, but otherwise putting up with folks who feel like moving from town to town.
Traditional Gypsy law, as the authors note, exists separate from the regular laws of the state. The extent to which state law applies to them has varied over time, depending on how much the local officials wish to interfere. Where they are left to mostly manage their own affairs, we have a polylegal system:
Polylegal systems, systems in which different people in the same country were under different legal authorities, existed in medieval and Renaissance Europe. The status of Jewish communities in the diaspora, discussed in Chapter 4, is one example, the millet system of the Ottoman Empire another. It is possible that the fifteenth century Romani persuaded Sigismund that they were entitled to similar treatment.
Whether or not fifteenth century Romani obtained a grant of de jure judicial autonomy from a fifteenth century emperor, Romani communities through the centuries have been strikingly successful in maintaining de facto autonomy, staying below the radar of the official legal system while imposing their own rules on their own members.
I have long wondered why anyone would bother obeying two legal systems at once–why obey both American and Jewish law, for example? Obeying complicated restrictions is annoying, even difficult, so why don’t people just slowly default to following only one to make their lives simpler?
This chapter offers no solution, but Chapter 9 does. The Amish, of course, are a community whose lifestyle can only be maintained by adherence to Amish law, but Gypsy law does not guarantee a Gypsy lifestyle. But adhering to Gypsy law does mean that one is part of a Gypsy community (since the strongest punishment available in Gypsy law is getting kicked out of the community,) and Gypsies love their communities:
Part of the painfulness of being denied contact with one’s own people, whether to be in a jail, a hospital, or a job, is that of being alone. To be among a group of Rom [masculine singular declinsion of Romani] is the natural everyday context within which a person lives, learns, and expresses his personality; to be among a group of gaje [outsiders] is to be alone. Wherever he travels or lives, a Rom is rarely alone. More often he is surrounded by large numbers of relatives and friends.
Of course, whether one follows the law also depends on whether there are any better options elsewhere, and for much of history, Gypsies have not had much hope of joining a nearby community if they decided their band’s purity laws were overly burdensome.
The authors’ analysis of Gypsy law is based off accounts of two groups of Gypsies–the Kaale of Finaland and the Vlach Rom of California, circa 1970 (and thus out of date). Be careful of over-extending any of this to other Gypsy groups, and frankly, given the described delight the Gypsies took in deceiving their ethnographer back in the 70s, I wouldn’t assume it was completely accurate back then, either.
(Ethnographers are often deceived by people who think it’s funny or that the ethnographers are being way too nosy.)
The basic unit [of the Vlach Rom] is the familia, a couple their adult sons, daughters-in-law, unmarried daughters and grandchildren. Above the familia is the vitsa, a larger kinship group descended from an ancestor some generations back. … Above the vitsa is the Natsiya, nation. The Vlach Rom are divided into four Natsiya…
So family, extended family, and clan.
Marriage is by purchase, a payment from the family of the groom to the family of the bride. Payments are substantial, typically several thousand dollars as of 1970. While consent of bride and groom is required, it is up to a man’s parents to find him a wife and negotiate with her parents. The wife lives in her husband’s familia; in the early years of the marriage she is expected to do much of the work of the household.
Note that the family structure of the Kaale Gypsies of Finland is completely different.
The geographical unit above the Familia is the kumpania. The original meaning seems to have been an encampment, a group of households camping together. In the modern American context, it describes a unit such as the Romani settlement in Richmond. A Kumpania usually has Rom Baro, a “Big Man,” who plays an important role in interactions with authorities such as the police and welfare department and among the Rom.
Here we see the difficulties of using an ethnonym from a foreign language–“Rom” means man (eg, Rom Baro = Big Man). You cannot play an important role in interactions among the man. You play a role among the men, plural. The plural of Rom is Roma. (The adjective is Romani. Romni is a woman.)
Anyway, in a move that clearly violates American anti-discrimination laws that the rest of us are required to follow, different kumpanias decide who gets to live there:
It may be a closed Kumpania, meaning that Romani families require permission to move in, likely to be based on vitsa membership and kinship to those already there, or it may be open. Restrictions on entry are typically enforced by the Rom Baro’s influence with local authorities. An unwelcome family can be reported to the police for crimes they id or didn’t commit, to the welfare department for violations that would otherwise go unreported. Restrictions on entry serve in part to protect current residents against competition in income-earning activities such as fortune telling.
Remember that this only works if you’re a Gypsy; if a white person tries to prevent people from entering their town or country in order to protect their job, they’re a dirty racist and deserve universal condemnation. Gypsies using the police to kick their neighbors out of their homes on false charges is totally fine, but you doing that is illegal and a sign that you are a terrible shit person.
Anyway, on to the laws:
Romania, the system of rules can be grouped into two categories. One consists of ordinary legal rules covering the obligations of Romani to each other, including extensive obligations of mutual help, especially but not exclusively between relatives. …
Obligations apply to fellow Rom not to outsiders, Gaje. … swindling or stealing from an outsider comes under Romania only to the extent that it creates problems for other Rom.
“Gaje” means outsiders; it can also be spelled “gadje.” The authors quote the source they are relying on for this amusing tidbit:
There is no word for all men and women. Human beings are either Roma or gadje.
When you use the term “Romani,” you are implicitly agreeing with this notion that Gypsies are people are you are not.
It is only a mild exaggeration to say that Romani view the non-Romani population not as part of their society but as part of their environment.
Do you ever get the impression that different people are held to different standards?
I was surprised the authors were this frank on the matter; usually people try to dance around and hide such attitudes, since they definitely reflect badly on the Gypsies.
The second category covered by Romania is an elaborate system of purity and pollution Orthodox Judaism on steroids.
I would not believe this had I not also read it elsewhere. Many Gypsies do in fact have complicated, annoying purity laws regarding washtubs, pregnant women, clothes, and body parts, but for some reason these laws don’t extend to the trash around their communities.
Because pollution is contagious and Gaje neither know nor follow the rules to prevent it, association with them is sharply limited. Vlach Rom in America [in the 70s, at least] if they have to eat in a non-Romani setting such as a restaurant, prefer paper plates; they may eat with their fingers instead of utensils for fear that the latter may be polluted.
Note: I guarantee you that there are Gypsies who love restaurants and use the silverware.
As for lying, the authors quote:
The Rom often lie to each other about everyday matters, but they almost always lie to the gaje. There is no particular shame attached to lying to each other… but to lie to the gaje is certainly correct and acceptable behavior…
When ‘caught out’ in this way [that is, caught in a lie] I never saw anyone show embarrassment. They enjoyed it when a good story was put over on them as much as they enjoyed putting one over on someone else.
There is a Gypsy court system called a kris, at which major decisions are made. The court may decide to ostracize someone or declare that certain behavior is good or bad; it may declare a punishment on one group of Gypsies that caused trouble for another group, etc. The functioning of the court is not terribly consistent over time and space, since Gypsy law is unwritten and based primarily on whatever the local elders think it is.
The pollution and ostracism rules provide the most effective means (besides calling the police) that Gypsies have of regulating each others’ behavior:
Ostracism is a way in which an embedded legal system, one that exists under the rule of a state with much greater resource of coercion than the community possesses, can function. Refusing to associate with someone is not illegal, so the marime [unclean] penalty can be enforced without coming into conflict with state law.
(Oh really? It’s not illegal to refuse to associate with someone? I’ll be sure to remember that next time I’m selling a house.)
Outside the family structure, the Romani are strikingly unwilling to engage in hierarchical relationships. Men who work together in groups do it as partners, not employer/employee. When Romani find it necessary to work for the gaje, picking crops for example, they do it as day labor not long-term employees.
Exit means you don’t have to put up with annoying people lording it over you.
A Romanichal who believes his rights to have been violated responds by demanding, with threats of violence, compensation. … As with any well-functioning feud system, while the incentive to obey the laws or norms is provided by the threat of private violence, actual violence is the exception rather than the rule.
Feud systems are not actually known for their lack of violence, but people are easily misled by an ethnographer who says something like, “Well, I never personally saw anyone get murdered, so the murder rate in this community must be much lower than the nation as a whole.”
Now, I’ve been a bit harsh, but I do think this case shines an interesting light on how legal systems developed in the first place, top up and bottom down. Every pre-state community had some kind of norms and rules in place to manage relationships, ease business transactions (even hunter-gatherers trade with each other), and manage food production/distribution. Farmers must determine who gets which plot and how to cooperate during planting and harvesting; hunters must split their catches effectively in an environment where meat cannot be stored because refrigeration has not yet been invented. There are religious rules, intended to keep the gods happy, and purity rules to avoid contamination and germs. There are the obligations of children and parents to each other, and matters of marriage and kinship to iron out.
People did all of these things for themselves long before states got in on the game, and state law has historically not interfered too much with local administration. Take marriage, which we now see as indelibly tied up in the legal system: in the 1700s, most marriages had nothing to do with the state. People were married because they said they were married, told their friends and neighbors they were married, and then moved in together and started having children. Today we call this a “common law marriage.” People will of course have big wedding parties if they can afford them, but most people throughout history were poor, and even still, these parties did not need to involve the state.
It is only recently, for tax (and insurance) purposes, that the state has started getting particularly nosy about who is married to whom, and suddenly people have developed this ridiculous notion that only Uncle Sam can determine who is and isn’t married, even though marriage has been going on for hundreds of thousands of years longer than the US has even existed.
It is natural that these local, tribal laws people developed thousands of years ago would only dictate behavior within the local tribe and not dictate obligations to people outside one’s tribe; after all, they’re different people in different tribes who are following their own laws. We only see the emergence of “universal” laws like “murder is bad whether you murder a kinsman or a stranger” within empires that rule over multiple ethnic groups (though Hammurabi’s code still declares some murders less bad according to the victim’s hierarchical status). Empires don’t care about people so much as they care about taxes, and empires can collect more taxes when people get along, conduct trade, and don’t have feuds with each other.
Which leads naturally to the question of whether national or polynational systems are better. Empires by their nature, are polynational–that is, they contain more than one ethnic group. One of the beliefs enshrined in early 20th century liberalism was the Self-Determination of all Nations–see Woodrow Wilson’s 13 points at the end of WWI. Self-determination was the idea that the interests of the Irish people would be best served by a government composed of Irish people, who would be disinclined to let their kinsmen die of famine. The interests of Poles would be best served by an independent Poland; the interests of Germans would be best served by all of the German people living in one country run by Germans.
Current liberal thinking, however, is that polynational (or multiethnic) systems are best, presumably due to the difficulties inherent in creating single-nation states when a population is not located in a single place or two populations are already mixed together. In a polynational state, if no single ethnic group can get the upper hand and thus become dominant, then the interests of different groups may balance and the state can effectively mediate between them.
In practice, both systems have their downsides.
A true nation-state enjoys the simplicity of being able to declare local laws state laws, and the difference between how I treat my co-ethnics and foreigners is simplified by a national border between us and them.
A polyethnic state has to find a way to mange different legal systems in different regions. Sometimes states give local communities significant leeway to conduct their own affairs, staying out of the way for most everything except tax collection; sometimes, as in the USSR, states decide to completely stamp out local systems and bring everyone under a unified system. In general, modern states are far more nimble (since the invention of communication and transportation technologies like telephones, video cameras, cars, and planes that make gathering information and extending power over long distances much easier,) than their predecessors, and so take a much deeper interest in their citizens’ everyday lives.
America is in the process of transitioning from a nation of nations–it was about 90% white in 1900, with the remnants of federalism still somewhat functioning–to a polynational state in which an increasingly invasive government does its best to make sure that whites adhere to the empire’s desire for universal laws and norms.
But enough about that; on to the Kaale, Finnish Gypsies who seem to have convinced an ethnographer that they don’t understand this concept of “marriage.”
The Kaale, the Finnish Romani, a small population isolated for centuries, carry the Vlach Rom attitude towards the lower half of the body even further than other Romani, refusing to openly admit the facts of human reproduction. They have no institution of marriage. Couples that wish to reproduce are expected to first leave their family households, flee far enough away so that the woman’s kin cannot find them and retrieve her, and return only when their child is weaned and so no longer requires a visible association with its mother. On returning, the father is expected to show the humility appropriate to one who has violated the norms of his society while the women of the mother’s generation smuggle mother and child into the household, where the child will be expected to treat all of the women of his mother’s generation as equally mothers.
No way this story started as a way to avoid explaining kinship structures to some nosy outsider who kept asking too many question.
Several obvious problems suggest themselves. First, the system is stupid. Second, it makes no sense. Third, the couple have to like each other enough to want to elope for a couple of years, find a new home, and go through pregnancy, birth, and weaning before returning, but afterward are apparently supposed to pretend like they don’t have a relationship?
Let us assume that the Kaale have a fertility rate above 1 child per woman: must a woman who already has a child disappear again for two or three years every time she or a man she is interested in wants to have sex? Do they simply not have sex anymore after the birth of their first child?
One result of the Kaale rejection of sexuality is to eliminate many of the taboos associated with it among other Romani groups. There can be no restrictions associated with menstruation since enforcing them would require recognition of the fact of menstruation, and similarly with pregnancy.
Oh…kay. I can tell this book was written by men. Guys, there is no way for women to not recognize the “fact of menstruation.” Not recognizing the fact that you menstruate means dripping blood down your legs and onto the floor/chairs. Absolutely not going to happen. Just because some women didn’t want to talk to an anthropologist or other nosy outsider about their menses doesn’t mean they aren’t aware that it happens and have some sort of way of dealing with it.
In most societies, the restrictions/taboos surrounding menstruation have little to do with pregnancy (which is pretty removed in most people’s minds) and has everything to do with keeping the bloody mess contained, (which was much trickier before the invention of modern menstrual hygiene products like pads and tampons,) and I guarantee you the Kaale don’t want blood all over their chairs anymore than you do.
A Kalle woman living in the household of her or her partner’s kin conceals the fact of pregnancy until shortly before delivery …
Guys, have you ever seen a pregnant woman? Pregnancy is not something you can conceal.
Then there are some bits about feuding, which sound more likely to be true: dead bodies are easy to count.
For Kaale feud, the relevant unit is the household, not, as among the Romanichal, the individual. All households are considered peers and here exists no mechanism above the household for peacefully settling disputes. …
Conflict between individuals of different households, if sufficiently serious, leads to duels. … If death or serious injury does occur,t he result is a blood feud. … There is no equivalent of the court procedures or arbitrated settlements that terminated Icelandic feuds.
The authors speculate for a while on why the Vlach Rom and Kaale Gypsies are so different from each other. If you ask me, it’s probably because they’re different groups of people living in completely different environments about 10,000 miles apart. Yes, they were probably part of the same group hundreds of years ago, but they split (perhaps because they didn’t like each other’s rules in the first place,) and have been developing on their own ever since. There is nothing about Kaale life that differs from Vlach Rom life in a way that leads us to conclude, “Ah, therefore it makes sense for them to pretend reproduction doesn’t exist and settle their disputes via feuds instead of courts.”
I am about a third of the way through Friedman, Leeson, and Skarbek’s Legal Systems Very Different from Ours, so I thought it was about time I got this discussion rolling. If you haven’t started the book yet, don’t worry–you still have plenty of time to pick it up before next week.
What distinguished the violence produced by states from the violence delivered by anyone else? In the long; run, enough to make the division between “legitimate” and “illegitimate” force credible. Eventually, the personnel of states purveyed violence on a larger scale, more effectively, more efficiently, with wider assent from their subject populations, and with readier collaboration from neighboring authorities than did the personnel of other organizations. But it took a long time for that series of distinctions to become established. Early in the state-making process, many parties shared the right to use violence, the practice of using it routinely to accomplish their ends, or both at once. The continuum ran from bandits and pirates to kings via tax collectors, regional power holders, and professional soldiers.
The uncertain, elastic line between “legitimate” and “illegitimate” violence appeared in the upper reaches of power. Early in the state-making process, many parties shared the right to use violence, its actual employment, or both at once. The long love-hate affair between aspiring state makers and pirates or bandits illustrates the division. “Behind piracy or the seas acted cities and city-states,” writes Fernand Braudel of the sixteenth century. “Behind banditry, that terrestrial piracy, appeared the continual aid of lords.” In times of war, indeed, the managers of full-fledged states often commissioned privateers, hired sometime bandits to raid them enemies, and encouraged their regular troops to take booty. In royal service, soldiers and sailors were often expected to provide for themselves by preying on the civilian population: commandeering, raping, looting, taking prizes. When demobilized, they commonly continued the same practices, but without the same royal protection; demobilized ships became pirate vessels, demobilized troops bandits.
But back to Legal Systems Very Different from Ours.
This book takes a quick look at many different legal systems–13 or 14, depending on how we count the chapter on feuds. This makes for a lot of interesting material, but it means each system is treated very quickly. Some I have enough knowledge of to say a few things independently about them; others I must just trust the authors entirely. I would be interested in an expanded version of this book that goes into some of the legal systems in a big more depth.
The first chapter is on the Imperial Chinese legal system, which is a bit less useful than a chapter on the modern Chinese legal system, but I am sure there are many books out there on the modern system if I wish to learn about it.
My overall impression of the Imperial Chinese legal system is “Please go away and leave us alone.”
The logic appears to be that people who are good and virtuous have no need of a legal system, so the goal is to encourage people to be good and virtuous so they will not bring lawsuits. If that doesn’t work, using the legal system should be unpleasant enough to discourage people from using it. This probably cuts down on the number of frivolous suits, but has certain drawbacks.
In practice, the system tended to delegate authority for keeping people in line (not committing crime, not breaking contracts) to extra-legal authorities like family heads and merchant partnerships.
Here are some of the passages I highlighted:
The Chinese legal system originated over 2000 years ago in the conflict between two views of law, Legalist and Confucian. The Legalists, who believed in using the rational self-interest of those subject to law to make them behave in the way desired by those making the law, were accused by later writers of advocating harsh penalties to drive the crime rate to near zero. …
Confucianists argued for modifying behavior not by reward and punishment but by teaching virtue. They supported unequal treatment based both on the unequal status of those to whom the law applied and on their differing relationships.
China, being an ancient civilization, managed to keep much of its legal code across the centuries:
Laws originated as statues proclaimed by Emperors and passed down from dynasty to dynasty; one source estimates that forty percent of the Qing code came from the Tang code, created about a thousand years earlier.
I wonder if any of this is still around.
The legal code was not so much an account of what was forbidden as an attempt to specify, for every possible offense, the proper punishment. … Where the offense could not be fitted into any category in the code, the court could find the defendant guilty of doing what ought not to be done or of violating an Imperial decree–not an actual degree, but one that the Emperor would have made had the matter been brought to his attention.
I find this very amusing. It definitely has some potential drawbacks, but I can also understand the exasperation of an official going “Of course you shouldn’t have done that! Everyone knows you shouldn’t do that, you imbecile!”
On the difficulty of preventing local magistrates from acquiring too much power for themselves and threatening the chain of command, the authors note a parallel with the Ottoman situation:
The Ottoman Empire had a somewhat similar approach to the problem of maintaining central control. After conquering territory, the usual pattern was to appoint the surviving members of the defeated dynasty as local rulers in some distant part of the empire. The knowledge that defeat would not deprive the losers of life, wealth, or elites status reduced the incentive to resist conquest, and a governor with no local ties was dependent on the Sultan for his authority, hence likely to be loyal.
On to the famous Chinese Examination System:
Officials, including magistrates, were largely but not entirely selected from those who had successfully passed through a series of ferociously competitive exams.
Level one accords the rank of licentiate. Passing level two meant a good chance of official employment, and level three meant nearly guaranteed office.
Our system has all of the exams and none of the guarantees.
Competition was stiff:
In the early part of the final dynasty, there were about half a million licentiates out of a population of several hundred million, only about 18,000 people who had reached the next level. The provincial exam that separated the two groups had a pass rate of about one percent. … The [third level] exam produced 200 to 300 degrees from as many as 8000 candidates each time it was given.
People have speculated on the Chinese exam system/the official appointments made based on the system having a role in boosting the average Chinese IQ (which is quite high) by allowing the brightest Chinese more wealth and security for bringing more children into the world, but at such a small percent relative to the population as a whole, we’d need to do some real demographic number crunching before concluding that the system had any overall effect.
The exams did not test administrative ability, knowledge of the law, expertise in solving crimes or other skills with any obvious connection to the job of district magistrate or most of the other jobs for which the exams provided a qualification.
The authors quote:
The content of the provincial examination presented an exacting challenge, especially to the novitiate. Its syllabus called for compositions on themes from the four core texts of the Ne-Confucian canon and a further five or more classics, extended dissertations on the classics, history, and contemporary subjects, verse composition, and at various times the ability to write formal administrative statements and dispatches. To be at all hopeful of success,t he candidate should have read widely in the extensive historical literature, thoroughly digested the classics, developed a fluent calligraphy, and mastered several poetic styles. …
As the authors ask, Why?
Perhaps the Chinese just wanted well-rounded, intelligent administrators rather than grinders who just “studied for the test,” and figured that testing on such wide variety of qualitative topics would do the job.
Of course in practice this probably just meant that people shifted what they were studying from one subject (say, proper punishments for various crimes) to other subjects (eg, poetry), but it’s hard to make a perfect system and we might as well ask why some systems require men to be ritually circumcised before they can assume leadership positions.
(Still better than being a Chinese eunuch.)
The authors have their own theories:
A more interesting explanation focuses on the content of what they were studying–Confucian literature and philosophy. There are two characteristics one would like officials to have. One is the ability to do a good job. The other is the desire to do a good job. … One might interpret the examination system as a massive exercise in indoctrination, training people in a set of beliefs that implied the job of government officials was to take good care of the people they were set over while being suitably obedient to the people set over them. …
The ideal Confucian Emperor would never punish anyone for anything, merely set an example of virtuous behavior so perfect that it would inspire all below him.
?? This sounds like an improbable ideal, unless espoused by the most truly ivory tower of academics.
I suppose even Imperial China had its bad ideas.
Seen from that standpoint, it made some sense to set up a system designed to produce good men, put them in power and then leave them alone.
I think Socrates would like this idea, but of course:
In the system as it actually existed, crime was prevented not by moral example but by an elaborate penal system.
The authors propose a further idea, that the purpose of the system wasn’t so much to chose officials–after all, so few officials actually got chosen that this is almost just a rare side effect of the system–but to get as many people as possible to study for the exam. If we think of studying for the exam as like going to college, and actually getting a job as like the very rare case of someone becoming an astronaut, we would certainly say that the purpose of college is not to become an astronaut, but “to produce well-educated people who are good at their jobs.”
(If we are not being cynical and going down the “college is mostly signaling” route:
The problem with this theory is that there should be much less expensive ways of generating the same evidence. So far as intelligence is concerned, a few days of testing should do it…
Well, there really ought to be a way to figure out who should be considered a tribal authority without ritual circumcision, but there you are.)
This is an interesting and really quite clever idea.
The authors’ final theory is indoctrination in the justification for the legitimacy of the Chinese state, which ties neatly into the previous idea.
On to the legal system itself:
The State and the Family: Subcontracting Enforcement
In Qing law, as in the law of earlier dynasties, legal consequences depended in part on the status of the parties, both absolute status–the rules for government officials and Manchus were different than the rules for ordinary commoners and those in turn different than the rules for groups of especially low status–and relative position within the extended family. All relatives were classified as senior or junior to each other. … Relative status in turn affected penalties…
It is common to include among the offenses of oppressive polities forcing children to inform on their parents. Imperial China had precisely the opposite approach. It was a criminal offense for a child to accuse his parent of a crime even if the parent was guilty…
My understanding is that this system can also be oppressive, especially if you are the person your parent has committed a crime against.
The system relied heavily on parents and grandparents to enforce the law against the younger members of their families (even allowing them, under certain circumstances, to carry out capital punishment).
This reliance on elder enforcement appears to be due to the relative paucity of official bureaucrats available to enforce the law, due to the dearth of people who had actually managed to pass the third exam–or perhaps the Empire did not bother increasing the number of officials because families were already doing an adequate job of policing their own.
The existence of essentially two different sets of authorities–one’s family and the state–sometimes lead to conflicts. It was illegal to disobey one’s parents, even if those parents ordered an illegal act. At the same time, the act itself remained illegal.
Another way system dealt with the paucity of legal officials was by simply discouraging people from using it by making court cases as unpleasant as possible:
One way of doing so was to treat most private practice of law as criminal. Practitioners, “litigation sticks,” were viewed as troublemakers out to stir up unnecessary conflict. … It was legal to torture witnesses in the process of extracting information from them.
The authors quote:
Shouted at and reviled by the magistrate, growled at and beaten by the constables, the position of the accused was a most unfavorable one indeed. Small wonder that having to appear in court was considered by the people at large as a terrible misfortune… In general people tried to settle their differences as much as possible out of court…
Law was a headache for any magistrate sitting as a judge. Among the public it was generally ruinous for all concerned. The fees paid to [criminal catchers] might bankrupt plaintiff as well as defendant. …
Imperial edicts even urged the populace to avoid the courts rather than crowd into them.
This is why I characterize this system as “Please go away and leave us alone.”
But what about contract law?
The authors discuss the Japanese acquire of Taiwan in 1895, prompting them to try to determine what its legal system was–creating useful records for us today:
One feature of that system was the combination of elaborate contractual practice with an almost total absence of contract law, at least at the Imperial level.
Taiwanese merchants didn’t limit their trade to far-flung family ties, as developed in some uncertain legal system. Nor did they develop private courts run by merchants, like those of medieval Europe.
The authors don’t have much of an explanation for how these merchants managed to do business, other than developing a system of contracts that minimized the chance of either party defaulting on the other. It is a pity that it has been so long since this system has been (I presume) active; it would be nice to hear how it worked from someone who knew and understood it well.
Nevertheless, it stands in sharp contrast with our own system, in which businesses are engaged in such constant legal battles with each other that lawsuits are considered simply “part of the price of doing business.” We are a deeply litigious people; where a problem arises, we are loathe to even consider working out a non-law-based solution.
It is typically assumed that businesses cannot operate without some degree of this help (even I propose a mere 90% reduction in regulatory burden; even libertarians propose that the government should concern itself with enforcing contracts,) but what if we’re all wrong? Would the Imperial Chinese system have worked better with a more user-friendly, more involved legal system? Did its very unpleasantness inspire everyone involved to behave? Or was the formal legal system largely irrelevant, and Chinese business practices shaped by other factors, like local governments, traditions, or just the cleverness and foresight of everyone involved?
ETA: apparently everyone thinks this guy’s work is wrong.
I thought his paper was nice and on a good track, but take with appropriate salt.
I am tempted to jest that the Voynich manuscript turned out to have been so difficult to decode because it was written by women, but this isn’t quite true.
It was just written in an extinct language of which we have almost no other written examples,
With an alphabet full of unknown characters,
And full of abbreviations and calligraphic shorthands.
If you’re not familiar with the Voynich manuscript, it’s a 240 page book that appears to have been written in Italy in the late 1400s. It’s filled with pictures of things like plants, bathing women, and a rather nice fold-out diagram of a volcano. It came to the world’s attention after Wilfrid Voynich purchased it from an old books dealer in 1912.
Because the Voynich manuscript is so weird, (especially the alphabet,) people have struggled for years to decipher it. Is it in code? Is it some non-European language like Chinese? Is it an elaborate hoax?
Given its resistance to all previous attempts at translation, I had written it off as probably a hoax–not a modern one perpetuated by Voynich, but a very old one played on some Medieval personage to sell them a worthless book full of supposed secret, magical knowledge for a handsome sum of money.
But it appears that Voynich has, at long last, been decoded by Gerard Cheshire.
It turns out that this “unknown language” isn’t Finnish, Basque, Navajo or something similarly difficult, but a kind of medieval Italian (or perhaps more accurately, late Latin,) known as proto-Romance. We have plenty of written examples of ancient Italian (otherwise known as Latin) and plenty of modern Italian, but few from the in-between period. It’s a bit like finding something written in Chaucerian English when you’re only familiar with modern English and Beowulf.
With this insight, the authors were able to decipher the strange alphabet, which employs no capitals but several extra symbols for dip- and tripthongs. (Kind of like Sequoia’s syllabary.)
The result is orthographically lovely, but very complicated. You should read the full article for an explanation for what all of the letters mean.
The really interesting thing is that this alphabet is nearly unique. Did the local nuns invent it for the purpose of the book? Were they literate in the regular alphabet used on the mainland, but felt it would be better to develop their own? Or was this commonly used in the area, but the vagaries of time destroyed all other remnants of it?
They found one of the keys to deciphering the manuscript lies in the map of the volcanic islands:
Within the manuscript there is a foldout pictorial map that provides the necessary information to date and locate the origin of the manuscript. It tells the adventurous, and rather inspiring, story of a rescue mission, by ship, to save the victims of a volcanic eruption in the Tyrrhenian Sea that began on the evening of the 4 February 1444 … The manuscript originates from Castello Aragonese, an island castle and citadel off Ischia, and was compiled for Maria of Castile, Queen of Aragon, (1401–58) who led the rescue mission as regent during the absence of her husband, King Alfonso V of Aragon (1396–1458) who was otherwise occupied, having only recently conquered and then taken control of Naples in February 1443. …
The island of Ischia is historically famous for its hot volcanic spas, which exist to this day. The manuscript has many images of naked women bathing in them, both recreationally and therapeutically. There are also images of Queen Maria and her court conducting trade negotiations whilst bathing. Clearly the spa lifestyle was highly regarded as a form of physical cleansing and spiritual communion, as well as a general means of relaxation and leisure. In many respects it would have been preferable to living in nearby Naples, which was the most important and cosmopolitan of cities in the Mediterranean at the time, but was still potentially dangerous for the spouse of an invading king. For example, in 1448 the barons of Naples launched a failed rebellion against Alfonso to reclaim their city.
In other words, while the menfolk were away, the Queen Maria of Ischia, a lovely little volcanic island off the coast of Naples, (the Wikipedia page is nice and has a couple of pictures of the castle where Queen Maria lived) had to lead the court, negotiate trade deals, and even led a rescue mission to an exploding volcano. She then decided to commission a local nun to write her a book on various matters of importance to the nearly all-female court. The various isolations inherent in island life probably account for several of the manuscripts peculiarities, from language to text.
Proto-Romance is thought to be ancestral not only to modern Italian, but to the various other romance languages, as well. It was a kind of lingua franca in the Mediterranean before modern political borders forced Italian, Spanish, Portuguese, etc., to fully differentiate. From the paper:
So, we have proto-Romance words surviving in the Mediterranean from Portugal, in the west, to Turkey, in the east. Clearly, it was a cosmopolitan lingua franca until the late Medieval period, when the political map began to inhibit meme flow, so that cultural isolation caused the modern languages to begin evolving. As a result, proto-Romance survived by vestigial fragmentation of its lexicon into the languages we see today. As such, manuscript MS408 is immensely important, because it is the only documentation of a language that was once ubiquitous over the Mediterranean and subsequently became the foundation for southern European linguistics in the present day.
There is another manuscript to introduce here, because it has similarity in calligraphic style and similarly combined letterforms. It is a memoire written by Loise De Rosa (1385–1475), who lived and worked in the court of Naples. It is titled De Regno di Napoli (The Kingdom of Naples) …
We can see that the calligraphic forms are quite legible and familiar to the modern eye and also noticeably different from those shared by manuscript MS408 and De Rosa. …
De Rosa’s work thus provides documentation of a writing system and a language akin to those of manuscript MS408, demonstrating that both evolved from the same naïve linguistic rootstock: i.e. both had emerged from Vulgar Latin, but in different ways due to their geographical and cultural separation. …
In fact we know, from De Rosa’s manuscript, that he fled to the safety of Castello Aragonese in 1441–42, when Alfonso was busy conquering Naples: He writes: ‘The patron said to me: “Son of mine, go to Ischia, for the great of age the place is safe”. I went to the marina and took a boat that travelled to the Castello di Ischia’. As incredible as it may seem, the chances are that De Rosa actually met the author of manuscript MS408 during his stay at the citadel.
So de Rosa met Maria and probably the nun who wrote the Voynich herself. It’s a really incredible story, both in the manuscript’s creation and the efforts it took to decaode it, and I encourage you to read the full article.
This book looks at thirteen different legal systems, ranging from Imperial China to modern Amish: how they worked, what problems they faced, how they dealt with them. Some chapters deal with a single legal system, others with topics relevant to several, such as problems with law based on divine revelation or how systems work in which law enforcement is private and decentralized. The book’s underlying assumption is that all human societies face the same problems, deal with them in an interesting variety of different ways, are all the work of grown-ups, hence should all be taken seriously. It ends with a chapter on features of past legal systems that a modern system might want to borrow.
Read up, enjoy, and let’s discuss it in about a month.
Welcome back to our discussion of Chinua Achebe’s Things Fall Apart. Today I wanted to take a closer look at some of the aspects of traditional Igbo society mentioned in the book.
If you are a regular reader of this blog, you know by now that just as early modern humans (Homo sapiens) mated with Neanderthals and Denisovans somewhere over in Eurasia, some sapiens mated with archaic humans in Africa.
Unfortunately, the state of knowledge about African genomes and especially archaic African genomes is very primitive. Not only does ancient DNA not preserve terribly well in many parts of Africa, but the continent is also rather poor and so people there don’t send their spit to 23 and Me very often to get DNA tested. Thus, sadly, I do not have archaic DNA percents for the Igbo.
Keep in mind that so far, Eurasians measure about 1-4% Neanderthal and Melanesians about 6% Denisovan, so 10% Ghost in west Africans is a pretty big deal (if you’re into archaic DNA.) The authors of the study estimate that the admixture occurred about 50,000 years ago, which is coincidentally about the same time as the admixture in non-Africans–suggesting that whatever triggered the Out of Africa migration may have also simultaneously triggered an Into Africa migration.
If you’re not familiar with some of these groups (I only know a little about the Yoruba,) the Esan, Mende, Gambians, and Yoruba are all speakers of languages from the Niger-Congo family (of which the Bantu languages are a sub-set.) The Niger-Congo family is one of the world’s largest, with 1,540 languages and 700 million speakers. It spread within the past 3,000 years from a homeland somewhere in west Africa (possibly Nigeria) to dominate sub-Saharan Africa. As far as I can tell, the Igbo are quite similar genetically to the Yoruba, and the admixture event happened tens of thousands of years before these groups spread and split, so there’s a good chance that the Igbo have similarly high levels of ghost-pop admixture.
Interestingly, a population related to the Bushmen and Pygmies used to dominate central and southern Africa, before the Bantu expansion. While the Bantu expansion and the admixture event are separated by a good 40 or 50 thousand years, this still suggests the possibility of human hybrid vigor.
Here, we examine 15 African populations covering all major continental linguistic groups, ecosystems, and lifestyles within Africa through analysis of whole-genome sequence data of 21 individuals sequenced at deep coverage. We observe a remarkable correlation among genetic diversity and geographic distance, with the hunter-gatherer groups being more genetically differentiated and having larger effective population sizes throughout most modern-human history. Admixture signals are found between neighbor populations from both hunter-gatherer and agriculturalists groups, whereas North African individuals are closely related to Eurasian populations. Regarding archaic gene flow, we test six complex demographic models that consider recent admixture as well as archaic introgression. We identify the fingerprint of an archaic introgression event in the sub-Saharan populations included in the models (~ 4.0% in Khoisan, ~ 4.3% in Mbuti Pygmies, and ~ 5.8% in Mandenka) from an early divergent and currently extinct ghost modern human lineage.
So the ghost population that shows up in the Pygmies the same ghost population as shows up in the Mende? Looks like it.
There’s a lot of interesting stuff in this paper, but I’d just like to highlight this one graph:
I don’t really understand how they compute these things, much less if this is accurate (though their present estimate for the size of the Han looks pretty good,) but assuming it is, we can say a few things: One, before 100,000 years ago, all of the groups–except the Laal of Chad–tracked closely together in size because they were one group. Most of the groups then got smaller simply because they split up. But there seems to have been some kind of really big population bottleneck a bit over a million years ago.
The other really interesting thing is the absolute Pygmy dominance of the mid-10,000-100,000 year range. The authors note:
It is noteworthy that we observed by PSMC a sudden Ne increase in Baka Pygmy around 30 kya. A similar increase was observed in another study that analyzed several Baka and Biaka samples . In addition, this individual presents the highest average genome-wide heterozygosity compared to the rest of samples (Fig. 1b). Nevertheless, such abrupt Ne increase can be attributed to either a population expansion or episodes of separation and admixture . Further analyses at population level are needed to distinguish between these two scenarios.
The egwugwu ceremony takes place in order to dispute the guilty side of a crime taken place, similar to our court trials… Nine egwugwu represented a village of the clan, their leader known as Evil Forest; exit the huts with their masks on.
Short page; fast read.
The egwugwu ceremony I found particularly interesting. Of course everyone knows the guys in masks are just guys in masks (well, I assume everyone knows that. It seems obvious,) yet in taking on the masks, they adopt a kind of veil of anonymity. In real life, they are people, with all of the biases of ordinary people; under the mask, they take on the identity of a spirit, free from the biases of ordinary people. It is similar to the official garb worn by judges in other countries, which often look quite silly (wigs on English barristers, for example,) but effectively demarcate a line between normal life and official pronouncements. By putting on the costume of the office, the judge becomes more than an individual.
I have long been fascinated by masks, masquerades, and the power of anonymity. Many famous writers, from Benjamin Franklin to Samuel Clemens, published under pseudonyms. The mask implies falseness–on Halloween, we dress up as things that we are not–but it also allows honesty by freeing us from the threat of retribution.
It is interesting that a small, tightly-knit society where everyone knows everyone and social relations are of paramount importance, like the Igbo, developed a norm of anonymizing judges in order to remove judicial decisions from normal social relations and obligations (as much as possible, anyway). Since most Igbo villages did not have kings or other aristocrats to dictate laws, rule was conducted by notable community members who had effectively purchased or earned noble titles. These nobles got to wear the masks and costumes of the egwgwu.
Ok, so it’s getting late and I need to wrap this up. This moment comes in every post.
I know I haven’t said much about the book itself. The plot, narrative, pacing, structure, writing style, etc. To be honest, that’s because I didn’t enjoy it very much. It was interesting for its content, along with a sense of “I’ve been trying to tell people this and I could have saved myself a lot of time by just pointing them to the book. And if this is a book taught in schools (we didn’t read it in my highschool, but I have heard that many people did,) then why aren’t people more aware of the contents?
What was tribal life like before the Europeans got there? Well, women got beaten a lot. Children were murdered to avenge tribal conflicts. Infant mortality was high. In other words, many things were pretty unpleasant.
“Much of the conduct described by anthropologists as conflict management, social control, or even law in tribal and other traditional societies is regarded as crime in modern [nation state] societies.” This is especially clear in the case of violent modes of redress such as assassination, feuding, fighting, maiming, and beating, but it also applies to the confiscation and destruction of property and to other forms of deprivation and humiliation. Such actions typically express a grievance by one person or group against another.
See, for example, when the village burned down Okonkwo’s house for accidentally killing a villager, when they burned down the church for “killing” a deity, or when they took a little girl and killed a little boy in revenge for someone in another village killing one of their women. To the villagers, these were all legal punishments, and the logic of burning down a person’s house if they have killed someone is rather similar to the logic of charging someone a fine for committing manslaughter. Even though Okonkwo didn’t mean to kill anyone, he should have been more careful with his gun, which he knew was dangerous and could kill someone.
Unlike penalties imposed by the state, however, private executions of this kind often result in revenge or even a feud—Moreover, the person killed in retaliation may not be himself or herself a killer, for in these societies violent conflicts between nonkin are virtually always handled in a framework of collective responsibility–or more precisely, collective liability–whereby all members of a social category (such as a family or lineage) are held accountable for the conduct of their fellows.
And, of course, penalties so meted out can be incredibly violent, arbitrary, and selfish, but ignoring that, there’s clearly a conflict when traditional, tribal ways of dealing with problems clash with state-based ways of dealing with problems. Even if everyone eventually agrees that the state-based system is more effective (and I don’t expect everyone to agree) the transition is liable to be difficult for some people, especially if, as in the book, they are punished by the state for enforcing punishments prescribed by their own traditional laws. The state is effectively punishing them for punishing law-breakers, creating what must seem to them a state of anarcho-tyranny.
Co-wife conflict is ubiquitous in polygynous households… Because the Turkana often choose wives from different families in order to broaden their safety net, they typically do not practice sororal [sister-wives] polygyny… When co-wives are relatives, they can more easily share a household and cooperate… But while sororal polygyny is especially common in cultures in the Americas, general polygyny tends to be the usual pattern in Africa. An examination of ethnographic data from 69 nonsororal polygynous cultures fails to turn up a single society where co-wife relations could be described as harmonious. Detailed ethnographic studies highlight the stresses and fears present in polygynous families, including, for example, wives’ concern that other wives might try to poison their children so that their own children might inherit land or property.
There is a well-entrenched schism on the frequency (how often), intensity (deaths per 100,000/year), and evolutionary significance of warfare among hunter-gatherers compared with large-scale societies. To simplify, Rousseauians argue that warfare among prehistoric and contemporary hunter-gatherers was nearly absent and, if present, was a late cultural invention. In contrast, so-called Hobbesians argue that violence was relatively common but variable among hunter-gatherers. … Furthermore, Hobbesians with empirical data have already established that the frequency and intensity of hunter-gatherer warfare is greater compared with large-scale societies even though horticultural societies engage in warfare more intensively than hunter-gatherers. In the end I argue that although war is a primitive trait we may share with chimpanzees and/or our last common ancestor, the ability of hunter-gatherer bands to live peaceably with their neighbors, even though war may occur, is a derived trait that fundamentally distinguishes us socially and politically from chimpanzee societies. It is a point often lost in these debates.