It’s not Stealing if they’re Gadje: Legal Systems very Different from Ours pt 2

51ta-us7crlWelcome 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.)

Social Structure:

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.

avopix-550135045
Gypsy neighborhood in Belgrade, Serbia: So much purity!

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.)

Status:

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.

On feuds:

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.

(We discussed this back Chinua Achebe’s Things Fall Apart.)

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.”

Different groups are just… different.

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Please go away and Leave us Alone: Legal Systems Very Different from Ours pt 1

51ta-us7crlI 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.

How have you liked the book?

While we are at it, here is a similarly interesting piece: War Making and State Making as Organized Crime, by Charles Tilly:

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.

Curiously:

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?

 

 

A Libertarian Writes about Human Sacrifice

 

800px-Castes_and_tribes_of_southern_India._Assisted_by_K._Rangachari_28190929_281478342954529
Meriah Sacrifice post, Khond people, India

I’ve written before about Peter Leeson’s work–he tends to write papers with exciting names like An-Aarrgh-chy: The Law and Economics of Pirate Organization.

Today I encountered Lesson’s less amusingly named but no less interesting paper on Human Sacrifice [PDF], whose abstract is one of the most libertarian things I have ever read:

This paper develops a theory of rational human sacrifice: the purchase and ritual slaughter of innocent persons to appease divinities. I argue that human sacrifice is a technology for protecting property rights. It improves property protection by destroying part of sacrificing communities’ wealth, which depresses the expected payoff of plundering them. … Human sacrifice is spectacular, publicly communicating a sacrificer’s destruction far and wide. Further, immolating a live person is nearly impossible to fake… To incentivize community members to contribute wealth for destruction, human sacrifice is presented as a religious obligation. To test my theory I investigate human sacrifice as practiced by the most significant and well-known society of ritual immolators in the modern era: the Konds of Orissa, India.

Of course, it is not exactly a rigorous test, but it is still an interesting case.

Leeson’s argument is not as crazy as it sounds at first glance. Suppose you have two very similar villages living near each other; neither has any particular advantage over the other. Each produces food each year, but food production varies due to natural vicissitudes. Some years village A produces more food; some years village B produces more food. Let’s suppose A has more food. Village B might decide to go steal some of A’s food. But war is expensive: B will only want to go to war if they can reasonably hope to steal more than the cost of war.

This sets up a situation where A has two potential war-avoiding strategies. A can pay off B, giving them enough of their surplus food to make them not want to go to war, or A can burn their surplus food, making war pointless.

The first option is a good idea if you have some hope of someday trading for surpluses with Village B in the future; the second option is a good idea if Village B is full of treacherous backstabbers and you’d rather burn your crops than let them have a crumb.

Burning crops is all well and good, but what if your enemies don’t believe that you’ve really burned them? What if the sacrifice is essentially fake, like Prometheus deceiving Zeus by wrapping bull bones in glistening fat? Your enemies might attack you anyway, despite your sacrifice.

Then you need a harder to fake signal, like spending your wealth on expensive trade goods which are then publicly destroyed–and the price and death of slaves, Leeson argues, is particularly difficult to fake.

There follows some math and a description of human sacrifice among the Konds (also spelled Khonds and Kondhs) of India, which I shall quote a bit:

Kond communities sacrificed humans. Their victims were called meriahs. Konds
purchased these persons from meriah sellers called Doms (or Pans) … In principle meriahs could be persons of any age, sex, race, or caste. In practice they were nearly always non-Konds. …

Every community held at least one of these festivals every year. Typically a
single meriah was sacrificed at each festival. But this was a lower bound. Kond country visitors occasionally reported sacrifices of upwards of 20 meriahs at a time
(Selections from the Government of India, 1854, p. 22). The general impression of
British officers who visited Kond country was that “the number of Meriahs annually
immolated” was large — very large — indeed, “far larger than could readily be
credited” (Selections from the Government of India, 1854, p. 28; see also, C.R.,
1846a, p. 61). …
Immolation festivals were large, raucous, three-day parties at which attendees
engaged “in the indulgence of every form of wild riot, and generally of gross excess” (Macpherson, 1865, p. 118). The villages that composed each community took turns
sponsoring the festival—purchasing the meriah and hosting the party. …
These festivals’ main event was the immolation itself, which took place on
the party’s third day. On this day the sponsoring Kond village’s head brought the
meriah, intoxicated with alcohol or opium, to a spot previously appointed for the
sacrifice. …
In some cases the victim’s arms and legs were broken to prevent his motion. After
this and some final prayers, the priest gave the word, and “the crowd throws itself
upon the sacrifice and strips the flesh from the bones, leaving untouched the head
and intestines” (Macpherson, 1865, p. 128). While cutting the victim to pieces in
this fashion was common, Konds sometimes used other modes of immolation — all
of them spectacular and spectacularly brutal — ranging from drowning the victim
in a pit of pig’s blood to beating him to death with brass bangles, always followed
by cutting him into small pieces…
The meriah thus slaughtered, the festival reached its crescendo. The chief gave
a pig or buffalo to the priest and the meriah’s seller, concluding the event. Each
of the participating villages’ representatives took a strip of the corpse’s flesh and
departed for their settlements where they shared it with their village members who
buried the flesh in their fields.

The British, of course, put a stop to the ritual–a classic act of white people destroying POC culture.

You can read the paper yourself and decide if you think the Kond case supports Leeson’s thesis.

The Wikipedia page on the Khonds is not particularly insightful, because the Wikipedians have decided not to allow any British Raj-era sources be used for information. This is, of course, base censorship. The page overall is not up to Wikipedia’s usual standards:

The Kondh are adept land dwellers exhibiting greater adaptability to the forest and hill environment. However, due to development interventions in education, medical facilities, irrigation, plantation and so on, they are forced into the modern way of life in many ways. Their traditional life style, customary traits of economy, political organization, norms, values and world view have been drastically changed in recent times. …

The Kondh family is often nuclear, although extended joint families are also found. Female family members are on equal social footing with the male members in Kondh society, and they can inherit, own, hold and dispose off property without reference to their parents, husband or sons. … Children are never considered illegitimate in Kondh society and inherit the clan name of their biological or adoptive fathers with all the rights accruing to natural born children. The Kondhs have a dormitory for adolescent girls and boys which forms a part of their enculturation and education process. The girls and boys sleep at night in their respective dormitory and learn social taboos, myths, legends, stories, riddles, proverbs amidst singing and dancing the whole night, thus learning the way of the tribe.

Apparently Khonds don’t need to sleep, unlike us mere mortals. It’s just the myth of the noble savage, the peaceful egalitarian who sings and dances all night in harmony with nature.

No explanation is given for the photo of the “meriah sacrifice post.”

Traditionally the Kondh religious beliefs were syncretic combining totemism, animism, Ancestor worship, shamanism and nature worship. … In the Kondh society, a breach of accepted religious conduct by any member of their society invited the wrath of spirits in the form of lack of rain fall, soaking of streams, destruction of forest produce, and other natural calamities. Hence, the customary laws, norms, taboos, and values were greatly adhered to and enforced with high to heavy punishments, depending upon the seriousness of the crimes committed.

This is what pretty much every religion believes.

The practise of traditional religion has almost become extinct today. Many Kondhs converted to Protestant Christianity in the late nineteenth and early twentieth century due to the efforts of the missionaries of the Serampore Mission. … Significantly, as with any culture, the ethical practices of the Kondh reinforce the social and economic practices that define the people. Thus, the sacredness of the earth perpetuates tribal socio-economics, wherein harmony with nature and respect for ancestors is deeply embedded whereas non tribal cultures that neglect the sacredness of the land find no problem in committing deforestation, strip-mining etc., and this has led to a situation of conflict in many instances.[5]

Yes, everyone knows that people who practice slash-and-burn agriculture just love nature.

Say what you will for Leeson’s theory, at least he doesn’t LIE to us.

Piracy and Emergent Order: Peter Leeson’s An-arrgh-chy and the Invisible Hook

Buccaneer of the Caribbean, from Howard Pyle’s Book of Pirates

After our long trek through Siberia, I wanted to change things up and do something rather different for Anthropology Friday, so today we’re reading Peter Leeson’s work on pirates. Strictly speaking, it isn’t quite “anthropology” because Leeson didn’t go live with pirates, but I’m willing to overlook that.

The Golden Age of piracy only lasted from 1690 through 1730, but in those days they were a serious menace to ships and men alike on the high seas. In A General History of the Robberies and Murders of the most notorious Pyrates, (1724,) Captain Charles Johnson complained:

“This was at a Time that the Pyrates had obtained such an Acquisition of Strength, that they were in no Concern about preserving themselves from the Justice of Laws”

Pirates stalked the ocean’s major trade routes, particularly between the Bahamas, Caribbean islands, Madagascar, and the North American coast. Over a century after Captain Johnson, Melville recounted the pirates of Malaysia and Indonesia:

The long and narrow peninsula of Malacca, extending south-eastward from the territories of Birmah, forms the most southerly point of all Asia. In a continuous line from that peninsula stretch the long islands of Sumatra, Java, Bally, and Timor … By the straits of Sunda, chiefly, vessels bound to China from the west, emerge into the China seas.

Those narrow straits of Sunda divide Sumatra from Java; and standing midway in that vast rampart of islands, buttressed by that bold green promontory, known to seamen as Java Head; they not a little correspond to the central gateway opening into some vast walled empire: and considering the inexhaustible wealth of spices, and silks, and jewels, and gold, and ivory, with which the thousand islands of that oriental sea are enriched, it seems a significant provision of nature, that such treasures, by the very formation of the land, should at least bear the appearance, however ineffectual, of being guarded from the all-grasping western world. ..

Time out of mind the piratical proas of the Malays, lurking among the low shaded coves and islets of Sumatra, have sallied out upon the vessels sailing through the straits, fiercely demanding tribute at the point of their spears. Though by the repeated bloody chastisements they have received at the hands of European cruisers, the audacity of these corsairs has of late been somewhat repressed; yet, even at the present day, we occasionally hear of English and American vessels, which, in those waters, have been remorselessly boarded and pillaged. …

And who could tell whether, in that congregated caravan, Moby Dick himself might not temporarily be swimming, like the worshipped white-elephant in the coronation procession of the Siamese! So with stun-sail piled on stun-sail, we sailed along, driving these leviathans before us; when, of a sudden, the voice of Tashtego was heard, loudly directing attention to something in our wake. …

It seemed formed of detached white vapours, rising and falling something like the spouts of the whales; only they did not so completely come and go; for they constantly hovered, without finally disappearing. Levelling his glass at this sight, Ahab quickly revolved in his pivot-hole, crying, “Aloft there, and rig whips and buckets to wet the sails;—Malays, sir, and after us!”

Leeson distinguishes between different sorts of pirates; for the rest of this article we will not be dealing with Malay, Somali, or Barbary pirates, but only the Atlantic-dwelling species. These pirates enlisted for the long haul and lived for months at sea, forming veritable floating societies. Modern Somali pirates, by contrast, live ashore, hop in their boats when they spot a victim, rob and murder, then head back to shore–they form no comparable sea-borne society.

One of the most fascinating aspects of pirate life–leaving aside faulty romantic notions of plunder and murder–is that even these anarchists of the sea instituted social organization among themselves.

Marooned, by Howard Pyle

Pirates had contracts, complete with clauses detailing the division of loot, compensation for different injuries sustained on the job, division of power between the Captain and the Quarter-Master, and election of the captain.

Yes, pirates elected their captains, and if they did not like their captain’s performance, they could un-elect him. According to Leeson:

The historical record contains numerous examples of pirate crews deposing unwanted captains by majority vote or otherwise removing them from power through popular consensus. Captain Charles Vane’s pirate crew, for example, popularly deposed him for cowardice: “the Captain’s Behavior was obliged to stand the Test of a Vote, and a Resolution passed against his Honour and Dignity . . . deposing him from the Command”

In The Invisible Hook: The Law and Economics of Pirate Tolerance, Leeson provides us with a typical contract, used by pirate captain Edward Low’s crew around 1723:

1. The Captain is to have two full Shares; the Master is to have one Share and one half; The Doctor, Mate, Gunner[,] and Boatswain, one Share and one Quarter [and everyone
else to have one share]. …
3. He that shall be found Guilty of Cowardice in the time of Ingagement, shall suffer what Punishment the Captain and Majority of the Company shall think fit.
4. If any Gold, Jewels, Silver, &c. be found on Board of any Prize or Prizes to the value of a Piece of Eight, & the finder do not deliver it to the Quarter Master in the space of 24
hours shall suffer what punishment the Captain and Majority of the Company shall think fit. …
6. He that shall have the Misfortune to lose a Limb in time of Engagement, shall have the Sum of Six hundred pieces of Eight, and remain aboard as long as he shall think fit. …
8. He that sees a sail first, shall have the best Pistol or Small Arm aboard of her.
9. He that shall be guilty of Drunkenness in time of Engagement shall suffer what Punishment the Captain and Majority of the Company shall think fit. …

Why did pirates go to the bother of writing contracts–or should we say, constitutions–for the running of their ships? In An-arrgh-chy: The Law and Economics of Pirate Organization, Leeson compares conditions aboard pirate ships to those aboard regular merchant vessels of the same day.

Merchant vessels were typically owned by corporations, such as the Dutch East India Company. Wealthy land-lubbers bought shares in these companies, which entitled them to a share of the boat’s profits when it returned to port. But these land-lubbers had no intention of actually getting on the boats–not only did they lack the requisite nautical knowledge, but ocean voyages were extremely dangerous. For example, 252 out of 270 sailors in Ferdinand Magellan’s crew died during their circumnavigation of the globe (1519 through 1522.) Imagine signing up for a job with a 93% death rate!

The owners, therefore, hired a captain, whose job–like a modern CEO–was to ensure that the ship returned with as high profits for its owners as possible.

The captain of a merchant ship was an autocrat with absolute control, including the power to dole out corporal punishment to his crew.

Ships through the ages: Pirate dhow; Spanish or Venetian galley; Spanish galleon
The dhow “is a typical 16th century dhow, a grab-built, lateen-rigged vessel of Arabia, the Mediterranean, and the Indian Ocean. It has the usual long overhang forward, high poop deck and open waist. The dhow was notorious in the slave trade on the east coast of Africa, and even after a thousand years is still one of the swiftest of sailing crafts.”

For all their pains, sailors were paid pitifully little: “Between 1689 and 1740 [pay]
varied from 25 to 55 shillings per month, a meager £15 to £33 per year.” By contrast, “Even the small pirate crew captained by John Evans in 1722 took enough booty to split
“nine thousand Pounds among thirty Persons”—or £300 a pirate—in less than six months “on the account”.”

The captain’s absolute power over his crew was not due to offering good wages, pleasant working conditions, or even a decent chance of not dying, but because he had the power of the state behind him to enforce his authority and punish anyone who mutinied against him.

Pirate captains, by contrast, were neither responsible to stockholders nor had the power of the state to enforce their authority. They had only–literally–the consent of their governed: the other pirates on board.

Why have a captain at all?

A small group–a maximum of 10 or 15 people, perhaps–can easily discuss and negotiate everything they want to do. For a larger group to achieve its aims requires some form of coherent, established organization. It would be inefficient–and probably deadly–for multiple pirates to start shouting conflicting orders in the middle of battle. It would be inefficient–and probably deadly–for a pirate crew to argue over the proper division of loot after it was captured.

The average pirate crew–calculated by Leeson–had 80 people, well within Dunbar’s Number, the theoretical “cognitive limit to the number of people with whom one can maintain stable social relationships—relationships in which an individual knows who each person is and how each person relates to every other person.[1][2]” The Dunbar Number is generally believed to be around 10o-150.

But how does emergent order emerge? What incentivizes each pirate to put aside their own personal desire to be captain and vote for someone else?

In Is Deference the Price of Being Seen as Reasonable? How Status Hierarchies Incentivize Acceptance of Low Status, Ridgeway and Nakagawa write (h/t Evolving_Moloch):

How, then, do collective, roughly consensual status hierarchies so regularly emerge among goal-interdependent people? While individuals have an enlightened self-interest in deferring to others on the basis of their apparent ability and willingness to contribute to the task effort, these same individuals also have a much more egoistic self-interest in gaining as much status and influence as they can, regardless. … The key is recognizing that whatever individuals want for themselves, they want others in the group to defer to those expected to best contribute to the collective effort since this will maximize task success and the shared benefits that flow from that. … As a result, group members are likely to form implicit coalitions to pressure others in the group to defer on the basis of performance expectations. … they are likely to be faced by an implicit coalition of other group members who pressure them to defer on that basis. … an interdependence of exchange interests gives rise to group norms that members enforce. … These are the core implicit rules for status that are likely taken-for-granted cultural knowledge…

The baseline respect earned by deference is less than the esteem offered to high-status member. It is respect for knowing one’s place because it views the deferrer as at least understanding what is validly better for achieving the groups goals even if he or she is not personally better. Yet it is still a type of worthiness. It is an acceptance of the low-status member not as an object of scorn but as a worthy member who understands and affirms the groups standards of value…

As such, [the reaction of respect and approval] acts as a positive incentive system for expected deference…

our implicit cultural rules for enacting status hierarchies not only incentivize contributions to the collective goal. they create a general, if modest, incentive to defer to those for whom the group has higher performance expectations–an incentive we characterize as the dignity of being deemed reasonable.

While any group above 10 or 15 people will have some communication complications, so long as it is still below the Dunbar Number, it should be able to work out its own, beneficial organization: order is a spontaneous, natural feature of human communities. Without this ability, pirate ships would not be able to function–they would devolve into back-stabbing anarchy. As Leeson notes:

The evidence also suggests that piratical articles were successful in preventing internal conflict and creating order aboard pirate ships. Pirates, it appears, strictly adhered to their articles. According to one historian, pirates were more orderly, peaceful, and well organized among themselves than many of the colonies, merchant ships, or vessels of the Royal Navy (Pringle 1953; Rogozinski 2000). As an astonished pirate observer put it, “At sea, they per form their duties with a great deal of order, better even than on the Ships of the Dutch East India Company; the pirates take a great deal of pride in doing things right”…

“great robbers as they are to all besides, [pirates] are precisely just among themselves; without which they could no more Subsist than a Structure without a Foundation” …

Beyond the Dunbar Number, however, people must deal with strangers–people who are not part of their personal status-conferring coalition. Large societies require some form of top-down management in order to function.

Based on the legend of Henri Caesar–see also the story of Florida’s Black Caesar

Let’s let Leeson have the final quote:

Pirates were a diverse lot. A sample of 700 pirates active in the Caribbean between 1715 and 1725, for example, reveals that 35 percent were English, 25 percent were American, 20 percent were West Indian,
10 percent were Scottish, 8 percent were Welsh, and 2 percent were Swedish, Dutch, French, and Spanish …
Pirate crews were also racially diverse. Based on data available from 23 pirate crews active between 1682 and 1726, the racial composition of ships varied between 13 and 98 percent black. If this sample is representative, 25–30 percent of the average pirate crew was of African descent.

There were, of course, very sensible reasons why a large percent of pirates were black: better a pirate than a slave.

(Personally, while I think pirates are interesting in much the same vein as Genghis Khan, I would still like to note that they were extremely violent criminals who murdered innocent people.)