The Talmud and the Constitution

This post is about similarities between the development of Jewish law and American law.

A story is recounted in the Babylonian Talmud, which I am going to paraphrase slightly for clarity:

Rabbi Yehudah said, “Rav (Abba Aricha) said, “When Moses ascended Mount Sinai, up to the heavens, to receive the Biblical law, he found God sitting and adding calligraphic flourishes (crowns) to the letters.

Moses said,”Master of the Universe! Why are you going so slowly? Why aren’t you finished?”

God said to him, “Many generations from now, Akiva the son of Yosef will expound on every calligraphic detail to teach piles and piles of laws.”

Moses said, “Master of the Universe! Show him to me,” so God told him to turn around, and a vision of Rabbi Akiva teaching his students appeared. Moses went and sat in the back row, but the teaching style was so intellectual that he did not understand what they were talking about and got upset.

Then one of the students asked Rabbi Akiva, “Our teacher, where did you learn this law?”

Akiva replied, “It is from a law that was taught to Moses at Sinai.”

So Moses calmed down. He returned and came before the Holy One, Blessed be He, and said before Him, “Master of the Universe! If you have a man like this, why are you are giving the Torah through me?”

But God only replied, “Be silent. This is what I have decided.”””

2,000 years ago, when Yeshua of the house of David still walked the Earth, rabbinic Judaism–the Judaism you’ll find if you walk into any synagogue–did not fully exist.* The Judaism of Roman Judea was a temple cult, centered on the great Temple in Jerusalem (though there were others, in Turkey, Greece, Egypt, and of course, Samaria.) Ordinary Jews went about their business–raising crops, tending goats, building tables, etc–and every so often they visited the Temple, bought or brought an offering, and had the priest sacrifice it.

*Note: See the comments for a discussion of continuity between Pharisaic Judaism and Rabbinic Judaism. I am not arguing that Rabbinic Judaism was invented whole cloth.

69 AD, also known as the Year of the Four Emperors, was particularly bad for the Roman Empire. Galba seized power after Nero‘s suicide, only to be murdered on January 15 in coup led by Otho. Emperor Otho committed suicide on April 16 after losing Battle of Bedriacum to Vitellius. Vitellius was murdered on December 20 by Vespasian‘s troops.

Meanwhile, Judea was in revolt. In 70 AD, Vespasian’s son (and successor) Titus besieged Jerusalem, crushed the rebellion, and razed the Temple.

Without the Temple–and worse, scattered to the winds–what was an ordinary Jew supposed to do? Where could he take his sacrifices? How was he supposed to live in this new land? Could he visit a bath house that had a statue of Aphrodite? Could he eat food that had been sold beside non-kosher meat?

The Bible has 613 laws for Jews to follow, but do you know how many laws you live under?

I once did a research project on the subject. I found that no one knows how many laws there are in the US. We have federal, state, county, and city laws. We have the code of federal regulations, containing thousands of rules created by unelected bureaucrats within dozens of agencies like the EPA, which is enforced exactly like laws. We have thousands of pages of case law handed down by the Supreme Court.

It’s one thing to live in an organic community, following the traditions handed down by your ancestors. Then perhaps 613 laws are enough. But with the destruction of the Temple, Judaism had to adapt. Somehow they had to get a full body of laws out of those measly 613.

Enter the Rabbi Akiva (also spelled Akiba or Aqiba) and his calligraphic flourishes. By examining and re-examining the text, comparing a verse from one section to a similar verse to another, groups of rabbis (teachers) and their students gradually built up a body of laws, first passed down orally (the Oral Torah,) and then written: the Talmud.

For example, the 5th Commandment says to Remember the Sabbath Day, but how, exactly, are you supposed to do it? The Bible says not to “work” (or so we translate it,) but isn’t a rabbi preaching his sermon on Saturday working? To clarify, they look to the next verse, “For in six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it.” (Exodus 20:11) and declare that “work” here refers to creative work: building, writing, sewing, sowing, reaping, carrying (materials for creative work), building fires, or inversely, putting out fires, knocking down buildings, etc. Merely giving a speech–even if you get paid for it–is not work. (Though you can’t accept the payment on Saturday.)

The word for “work” in the Bible, transliterated as “melachah,” is further interpreted as related to “melekh,” king, relating it back to God (the King)’s work. Melachah is not found very often in the Bible, but shows up again in Exodus 31, during a discussion of the work done to build the Ark of the Covenant [which is not actually a boat] and various related tents–a discussion which is suddenly interrupted for a reminder about the Sabbath. From this, it was reasoned that work specifically mentioned in the first part of the passage was what was prohibited in the second part, and therefore these were among the specific varieties of work forbidden on Shabbat.

If a suitably similar verse could not be found elsewhere in the text to explicate an inadequate passage, rabbis found other ways of decoding God’s “original intent,” including gematria and the aforementioned calligraphic flourishes. Hey, if God wrote it, then God can encode messages in it.

Which gets us back to the story at the beginning of the post. Note how it begins: The Talmud says that Rabbi Yehudah said, “Rav said… ‘Moses said…'” This is a written account of an oral account passed from teacher to student, about a conversation between Moses (recipient of the Torah or first five books of the Bible from God and recipient of the Oral Torah, which was just how everyone lived,) about the transformation from Mosaic Judaism, centered on the Temple and lived tradition, to Rabbinic Judaism, centered on repeated reading and interpretation of the holy text, which contains in it all of the things that used to just be part of everyone’s traditions.

The result, of course, was the Talmud–or rather multiple Talmuds, though the Babylonian is the most commonly cited. The Vilna Edition of the Babylonian Tamud runs 37 volumes, and looks like this:

The inner section is a passage from the original Talmud. The inner margin is Rashi (a famous rabbi)’s commentary, the outer margin is additional commentary from other famous rabbis, and around the edges you can see marginalia from even more rabbis.

Like an onion, it is layer upon layer upon layer.

But what authority do the rabbis have to make pronouncements about the law?

The Talmud recounts an amusing argument about whether an oven could be purified:

The Sages taught: On that day, when they discussed this matter, Rabbi Eliezer answered all possible answers in the world to support his opinion, but the Rabbis did not accept his explanations from him.

After failing to convince the Rabbis logically, Rabbi Eliezer said to them: If the halakha is in accordance with my opinion, this carob tree will prove it. The carob tree was uprooted from its place one hundred cubits, and some say four hundred cubits.

The Rabbis said to him: One does not cite halakhic proof from the carob tree.

Rabbi Eliezer then said to them: If the halakha is in accordance with my opinion, the stream will prove it. The water in the stream turned backward and began flowing in the opposite direction.

They said to him: One does not cite halakhic proof from a stream.

Rabbi Eliezer then said to them: If the halakha is in accordance with my opinion, the walls of the study hall will prove it. The walls of the study hall leaned inward and began to fall.

Rabbi Yehoshua scolded the walls and said to them: If Torah scholars are contending with each other in matters of halakha, what is the nature of your involvement in this dispute?

The Gemara relates: The walls did not fall because of the deference due Rabbi Yehoshua, but they did not straighten because of the deference due Rabbi Eliezer, and they still remain leaning.

Rabbi Eliezer then said to them: If the halakha is in accordance with my opinion, Heaven will prove it.

A Divine Voice emerged from Heaven and said: Why are you differing with Rabbi Eliezer, as the halakha is in accordance with his opinion in every place that he expresses an opinion?

Rabbi Yehoshua stood on his feet and said: It is written: “It is not in heaven” (Deuteronomy 30:12).

The Gemara asks: What is the relevance of the phrase “It is not in heaven” in this context?

Rabbi Yirmeya says: Since the Torah was already given at Mount Sinai, we do not regard a Divine Voice, as You already wrote at Mount Sinai, in the Torah: “After a majority to incline” (Exodus 23:2). Since the majority of Rabbis disagreed with Rabbi Eliezer’s opinion, the halakha is not ruled in accordance with his opinion.

The Gemara relates: Years after, Rabbi Natan encountered Elijah the prophet and said to him: What did the Holy One, Blessed be He, do at that time, when Rabbi Yehoshua issued his declaration?

Elijah said to him: The Holy One, Blessed be He, smiled and said: My children have triumphed over Me; My children have triumphed over Me.

So say the rabbis!

(you might be thinking, “Didn’t Elijah live a long time before the rabbis?” But since Elijah was taken up in whirlwind he never died, and thus may still be encountered.)

The importance of this little bit of Talmudism–in my opinion–is it lets the rabbis modify practice to avoid parts of the Bible that people don’t like anymore, like stoning adulterers. Sure, they do so by legalistically telling God to buzz off, they’re interpreting the law now, but hey, “Israel” means “wrestled with God“:

So Jacob was left alone, and a man wrestled with him till daybreak. … Then the man said, “Let me go, for it is daybreak.”

But Jacob replied, “I will not let you go unless you bless me.” …

Then the man said, “Your name will no longer be Jacob, but Israel,[a] because you have struggled with God and with humans and have overcome.” (Genesis 32: 24-28)

Arguing with God. It’s a Jew thing.

The downside to all of this is that the Talmud is SUPER LONG and gets bogged down in boring legal debates about EVERYTHING.

Every so often, a group of Jews decides that all of this Talmud stuff is really too much and tries to sweep it away, starting fresh with just the Laws of Moses. Karaite Jews, for example, reject the Talmud, claiming instead to derive all of their laws directly from the Bible. They have therefore written several hundred books of their own interpreting Biblical law.

Hasidic Judaism was founded by the Baal Shem Tov, a rabbi who (according to his followers) emphasized the importance of having a “spiritual connection” to God (which even poor Jews could do) over legalistic arguing about texts, (which a rich atheist could do but not a poor man.) Today, Hasidic Jews are prominent among the Orthodox Jews who actually care about extensive, strict interpretation and implementation of Jewish law.

It’s not that reform is worthless–it’s just that the Bible doesn’t contain enough details to use as a complete legal code to govern the lives of people who no longer live in the organic, traditional community that originally produced it. When people lived in that community, they didn’t need explicit instructions about how to build a sukkah or honor the Sabbath day, because their parents taught them how. Illiterate shepherds didn’t need a long book of legal opinions to tell them how to treat their guests or what to do with a lost wallet–they already learned those lessons from their community.

It’s only with the destruction of the Temple and the expulsion of the Jews from Judea that there comes a need for a written legal code explaining how, exactly, everything in the culture is supposed to be done.

Okay, but what does all of this have to do with the Constitution?

As legal documents go, the Constitution is pretty short. Since page size can vary, we’ll look at words: including all of the amendments and signatures, the Constitution is 7,591 words long.

The Affordable Care Act, (aka Obamacare,) clocks in at a whopping 363,086 words, of which 234,812 actually have to do with the law; the rest are headers, tables of contents, and the like. (For comparison, The Fellowship of the Ring only has 177,227 words.)

Interestingly, the US Constitution is both the oldest and shortest constitution of any major government in the world. This is not a coincidence. By contrast, the Indian Constitution, passed in 1949, is 145,000 words long–the longest in the world, but still shorter than the ACA.

People often blame the increasing complexity of US law on Talmudic scholars, but I think we’re actually looking at a case of convergent evolution–the process by which two different, not closely related species develop similar traits in response to similar environments or selective pressures. Aardvarks and echidnas, for example, are not closely related–aardvarks are placental mammals while echidnas lay eggs–but both creatures eat ants, and so have evolved similar looking noses. (Echidnas also look a lot like hedgehogs.)

US law has become more complex for the same reasons Jewish law did: because we no longer live in organic communities where tradition serves as a major guide to proper behavior, for both social and technical reasons. Groups of people whose ancestors were separated by thousands of miles of ocean or desert now interact on a daily basis; new technologies our ancestors could have never imagined are now commonplace. Even homeless people can go to the library, enjoy the air conditioning, log onto a computer, and post something on Facebook that can be read, in turn, by a smartphone-toting Afghan shepherd on the other side of the world.

The result is a confused morass. Groups of people who don’t know how to talk to each other have degenerated into toxic “call-out culture” and draconian speech codes. (Need I remind you that some poor sod just lost his job at Google for expressing views backed by mountains of scientific evidence, just because it offended a bunch of SJWs?) Campus speech codes (which infringe on First Amendment rights) are now so draconian that people are discussing ways to use a different set of laws–the Americans with Disabilities Act–to challenge them.

Even the entry of large numbers of women into colleges and the paid workforce (as opposed to unpaid labor women formerly carried out in homes and farms) has simultaneously removed them from the protective company of male relatives while bringing them into constant contact with male strangers. This has forced a massive shift both in social norms and an increase in legal protections afforded to women, whom the state now protects from harassment, “hostile work environments,” rape, assault, discrimination, etc.

Without tradition to guide us, we try to extrapolate from some common, agreed upon principles–such as those codified in the Constitution. But the Constitution is short; it doesn’t even remotely cover all of the cases we are now trying to use it to justify. What would the founding fathers say about machine guns, nuclear missiles, or international copyright law? The responsibilities of universities toward people with medical disabilities? Medications that induce abortions or unionized factory workers?

The Constitution allows Congress to grant Letters of Marque and Reprisal–that is, to officially commission pirates as privateers, a la Sir Francis Drake, private citizens allowed to attack the boats of (certain) foreign nations. But Letters of Marque and Reprisal haven’t actually been granted since 1815, and the practice has been out of favor among European governments since 1856. Like stoning, privateering just isn’t done anymore, even though it is technically still right there in the Constitution.

By contrast, the Supreme Court recently ruled that the Constitution says that the states have to issue gay marriage licenses. Whether you agree with gay marriage or not, this is some Rabbi Yehoshua, “It is not in heaven,” level reasoning. I’m pretty sure if you raised the Founding Fathers or the authors of the 14th Amendment from the dead and ask their ghosts whether the Constitution mandates gay marriage, they’d look at you like you’d just grown a second head and then call you crazy. Gay sex wasn’t just illegal in every state, it was punishable by execution in several and Thomas Jefferson himself wrote a bill for the state of Virginia which penalized it via castration.

But “living constitution” and all that. A majority of modern Americans think gay marriage should be legal and don’t want to execute or dismember homosexuals, so society finds a way.

It’d be more honest to say, “Hey, we don’t really care what people thought about gay marriage 200+ years ago; we’re going to make a new law that suits our modern interests,” but since the legitimacy of the whole legal edifice is built on authority derived from the Constitution, people feel they must find some way to discover legal novelties in the text.

Like a man trying to fix a broken fence by piling up more wood on it, so American law has become an enormous, burdensome pile of regulation after regulation. Where traditions can be flexible–changing depending on human judgment or in response to new conditions–laws, by nature, are inflexible. Changing them requires passing more laws.

The Talmud may be long, but at least I can eat a bacon cheeseburger on leavened bread on a Saturday during Passover with no fear of going to jail. Even Israelis aren’t significantly restricted by Talmudic law unless they want to be.

By contrast, I can be put in prison for violating the endlessly complex US law. I could spend the next ten pages recounting stories of people fined or imprisoned for absurd and trivial things–bakers fined out of business for declining to bake a gay wedding cake, children’s lemonade stands shut down for lack of proper permits, teenagers imprisoned and branded “sex offenders” for life for having consensual sex with each other. Then there’s the corporate side: 42% of multi-million dollar patent litigation suits that actually go to court (instead of the parties just settling) result in the court declaring that the patent involved should have never been granted in the first place! Corporate law is so complex and lawsuits so easy to bring that it now functions primarily as a way for corporations to try to drive their competitors out of business. Lawsuits are no longer a sign that a company has acted badly or unethically, but merely a “cost of doing business.”

How many businesses never get started because the costs of regulation compliance are too high? How many people never get jobs as a result? How many hours of our lives are sucked away while we fill out tax forms or muddle through insurance paperwork?

Eventually we have to stop piling up wood and start tearing out rotten posts.


PS: For more information on the development of Rabbinic Judaism, I recommend Visotzky’s Aphrodite and the Rabbis: How the Jews adapted Roman Culture to Create Judaism as we Know it.


Cannibalism, Abortion, and R/K Selection.

Reindeer herder, from "Quarter of a Million Reindeers to be Butched... after Anthrax Outbreak" : "Serbian officials have demanded a huge cull of a 250,000 reindeers by Christmas over the risk of an anthrax outbreak. Currently 730,000 animals are being kept in the Yamal Peninsula and the rest of the Yamalo-Nenets region."
Reindeer herder, from Quarter of a Million Reindeers to be Butched… after Anthrax Outbreak: “Currently 730,000 animals are being kept in the Yamal Peninsula and the rest of the Yamalo-Nenets region.”

In Hunters, Pastoralists, and Ranchers: Reindeer Economies and their Transformations [PDF,] Ingold describes the social distribution of food among hunter-gatherers. In normal times, when food is neither super-abundant nor scarce, each family basically consumes what it brings in, without feeling any particular compulsion to share with their neighbors. In times of super-abundance, food is distributed throughout the tribe, often quite freely:

Since harvested animals, unlike a plant crop, will not reproduce, the multiplicative accumulation of material wealth is not possible within the framework of hunting relations of production. Indeed, what is most characteristic of hunting societies everywhere is the emphasis not on accumulation but on its obverse: the sharing of the kill, to varying degrees, amongst all those associated with the hunter. …

The fortunate hunter, when he returns to camp with his kill, is expected to play host to the rest of the community, in bouts of extravagant consumption.

The other two ethnographies I have read of hunter-gatherers (The Harmless People, about the Bushmen of the Kalahari, and Kabloona, about the Eskimo aka Inuit) both support this: large kills are communal feasts. Hunter gatherers often have quite strict rules about how exactly a kill is to be divided, but the most important thing is that everyone gets some.

And this is eminently sensible–you try eating an entire giraffe by yourself, in the desert, before it rots.

Even in the arctic, where men can (in part of the year) freeze food for the future, your neighbor’s belly is as good as a freezer, because the neighbor you feed today will feed you tomorrow. Hunting is an activity that can be wildly successful one day and fail completely the next, so if hunters did not share with each other, soon each one would starve.

Whilst the successful hunter is required to distribute his spoils freely amongst his camp fellows, he does so with the assurance that in any future eventuality, when through bad luck he fails to find game, or through illness or old age he can no longer provide for himself and his family, he will receive in his turn. Were each hunter to produce only for his own domestic needs, everyone would eventually perish from hunger (Jochelson 1926:124). Thus, through its contribution to the survival and reproduction of potential producers, sharing ensures the perpetuation of society as a whole. …

Yet he is also concerned to set aside stocks of food to see his household through at least a part of the coming winter. The meat that remains after the obligatory festive redistribution is therefore placed in the household’s cache, on which the housewife can draw specifically for the provision of her own domestic group (Spencer 1959:149). After the herds have passed by, domestic autonomy is re-establisheddraws on its own reserves of stored food.

But what happens at the opposite extreme, not under conditions of abundance, but when everyone‘s stocks run out? Ingold claims that in times of famine, the obligation to share what little food one has with one’s neighbors is also invoked:

We find, therefore, that the incidence of generalized reciprocity tends to peak towards the two extremes of scarcity and abundance… The communal feast that follows a successful hunting drive involves the same heightening of band solidarity, and calls into play the same functions of leadership in the apportionment of food, as does the consumption of famine rations.

I am reminded here of a scene in The Harmless People in which there was not enough food to go around, but the rules of distribution were still followed, each person just cutting their piece smaller. Thomas described one of the small children, hungry, trying to grab the food bowl–not the food itself–to stop their mother from giving away their food to the next person in the chain of obligation.

Here Ingold pauses to discuss a claim by Sahlins that such social order will (or should) break down under conditions of extreme hunger:

Probably every primitive organization has its breaking-point, or at least its turning-point. Every one might see the time when co-operation is overwhelmed by the scale of disaster and chicanery becomes the order of the day. The range of assistance contracts progressively to the family level; perhaps even these bonds dissolve and, washed away, reveal an inhuman, yet most human, self-interest. Moreover, by the same measure that the circle of charity is
compressed that of ‘negative reciprocity* is potentially expanded. People who helped each other in normal times and through the first stages of disaster display now an indifference to each others’ plight, if they do not exacerbate a mutual downfall by guile, haggle and theft.

Ingold responds:

I can find no evidence, either in my reading of circumpolar ethnography, or in the material cited by Sahlins, for the existence of such a ‘turning-point’ in hunting societies. On the contrary, as the crisis deepens, generalized reciprocity proceeds to the point of dissolution of domestic group boundaries. ‘Negative reciprocity’, rather than closing in from beyond the frontiers of the household, will be expelled altogether from the wider social field, only to make its appearance within the heart of the domestic group itself.

Thus the women of the household, who are allowed to eat only after the appetites of their menfolk have been satisfied, may be left in times of want with the merest scraps of food. Among the Chipewyan, ‘when real distress approaches, many of them are permitted to starve, when the males are amply provided for’…

In situations of economic collapse, negative reciprocity afflicts not only the domestic relations between husband and wife, but those between mother and child, and between parent and grandparent. If the suckling of children is the purest expression of generalized reciprocity, in the form of a sustained one-way flow, then infanticide must surely represent the negative extreme. Likewise, old or sick members of the household will be the first to be abandoned when provisions run short. Even in normal times, individuals who are past labour have to scavenge the left-overs of food and skins (Hearne 1911:326). In the most dire circumstances of all, men will consume their starving wives and children before turning upon one another.

Drawing on Eskimo material, Hoebel derives the following precepts of cannibal conduct: Not unusually . . . parents kill their own children to be eaten. This act is no different from infanticide. A man may kill and eat his wife; it is his privilege. Killing and eating a relative will produce no legal consequences. It is to be presumed, however, that killing a non-relative for food is murder. (1941:672, cited in Eidlitz 1969:132)

In short, the ‘circle of charity’ is not compressed but inverted: as the threat of starvation becomes a reality, the legitimacy of killing increases towards the centre. The act is ‘inhuman’ since it strips the humanity of the victim to its organic, corporeal substance. If altruism is an index of sociability, then its absolute negation annuls the sodality of the recipient: persons, be they human or animal, become things.

297px-world_population_v3-svgThis is gruesome, but let us assume it is true (I have not read the accounts Ingold cites, so I must trust him, and I do not always trust him but for now we will.)

The cold, hard logic of infanticide is that a mother can produce more children if she loses one, but a child who has lost its mother will likely die as well, along with all of its siblings. One of my great-great grandmothers suffered the loss of half her children in infancy and still managed to raise 5+ to adulthood. Look around: even with abortion and birth control widely available, humanity is not suffering a lack of children. ETA: As BaruchK correctly noted, today’s children are largely coming from people who don’t use birth control or have legal access to abortion; fertility rates are below replacement throughout the West, with the one exception AFAIK of Israel.

c08pnclw8aapot6Furthermore, children starve faster and are easier to kill than parents; women are easier to kill than men; people who live with you are easier to kill than people who don’t.

Before we condemn these people, let us remember that famine is a truly awful, torturous way to die, and that people who are on the brink of starving to death are not right in their minds. As “They’re not human”: How 19th-century Inuit coped with a real-life invasion of the Walking Dead recounts:

“Finally, as the footsteps stopped just outside the igloo, it was the old man who went out to investigate.

“He emerged to see a disoriented figure seemingly unaware of his presence. The being was touching the outside of the igloo with curiosity, and raised no protest when the old man reached his hand out to touch its cheek.

“His skin was cold. …

The figures, of course, were the last survivors of the Franklin Expedition. They had buried their captain. They had seen their ship entombed by ice. They had eaten the dead to survive. …

Inuit nomads had come across streams of men that “didn’t seem to be right.” Maddened by scurvy, botulism or desperation, they were raving in a language the Inuit couldn’t understand. In one case, hunters came across two Franklin Expedition survivors who had been sleeping for days in the hollowed-out corpses of seals. …

The figures were too weak to be dangerous, so Inuit women tried to comfort the strangers by inviting them into their igloo. …

The men spit out pieces of cooked seal offered to them. They rejected offers of soup. They grabbed jealous hold of their belongings when the Inuit offered to trade.

When the Inuit men returned to the camp from their hunt, they constructed an igloo for the strangers, built them a fire and even outfitted the shelter with three whole seals. …

When a small party went back to the camp to retrieve [some items], they found an igloo filled with corpses.

The seals were untouched. Instead, the men had eaten each other. …

In 1854, Rae had just come back from a return trip to the Arctic, where he had been horrified to discover that many of his original Inuit sources had fallen to the same fates they had witnessed in the Franklin Expedition.

An outbreak of influenza had swept the area, likely sparked by the wave of Franklin searchers combing the Arctic. As social mores broke down, food ran short.

Inuit men that Rae had known personally had chosen suicide over watching the slow death of their children. Families had starved for days before eating their dog teams. Some women, who had seen their families die around them, had needed to turn to the “last resource” to survive the winter.

Infanticide, cannibalism, and human sacrifice were far more common prior to 1980 or so than we like to think; God forbid we should ever know such fates.

According to Wikipedia:

“Many Neolithic groups routinely resorted to infanticide … Joseph Birdsell believed that infanticide rates in prehistoric times were between 15% and 50% of the total number of births,[10] while Laila Williamson estimated a lower rate ranging from 15% to 20%.[6]:66 Comparative anthropologists have calculated that 50% of female newborn babies were killed by their parents during the Paleolithic era.[12] Decapitated skeletons of hominid children have been found with evidence of cannibalism.[13]

400px-Magliabchanopage_73r“Three thousand bones of young children, with evidence of sacrificial rituals, have been found in Sardinia. Pelasgians offered a sacrifice of every tenth child during difficult times. Syrians sacrificed children to Jupiter and Juno. Many remains of children have been found in Gezer excavations with signs of sacrifice. Child skeletons with the marks of sacrifice have been found also in Egypt dating 950-720 BCE. In Carthage “[child] sacrifice in the ancient world reached its infamous zenith.”[11]:324  …

“According to Shelby Brown, Carthaginians, descendants of the Phoenicians, sacrificed infants to their gods.[25] Charred bones of hundreds of infants have been found in Carthaginian archaeological sites. One such area harbored as many as 20,000 burial urns.[25]

Picture 4Plutarch (c. 46–120 AD) mentions the practice, as do Tertullian, Orosius, Diodorus Siculus and Philo. The Hebrew Bible also mentions what appears to be child sacrifice practiced at a place called the Tophet (from the Hebrew taph or toph, to burn) by the Canaanites. Writing in the 3rd century BCE, Kleitarchos, one of the historians of Alexander the Great, described that the infants rolled into the flaming pit. Diodorus Siculus wrote that babies were roasted to death inside the burning pit of the god Baal Hamon, a bronze statue.

“… the exposure of newborns was widely practiced in ancient Greece, it was even advocated by Aristotle in the case of congenital deformity — “As to the exposure of children, let there be a law that no deformed child shall live.”[30]

“The practice was prevalent in ancient Rome, as well. … A letter from a Roman citizen to his sister, or a pregnant wife from her husband,[35] dating from 1 BC, demonstrates the casual nature with which infanticide was often viewed:

“I am still in Alexandria. … I beg and plead with you to take care of our little child, and as soon as we receive wages, I will send them to you. In the meantime, if (good fortune to you!) you give birth, if it is a boy, let it live; if it is a girl, expose it.” [36][37]

CgxAZrOUYAEeANF“In some periods of Roman history it was traditional for a newborn to be brought to the pater familias, the family patriarch, who would then decide whether the child was to be kept and raised, or left to die by exposure.[39] The Twelve Tables of Roman law obliged him to put to death a child that was visibly deformed. …

“According to William L. Langer, exposure in the Middle Ages “was practiced on gigantic scale with absolute impunity, noticed by writers with most frigid indifference”.[47]:355–356 At the end of the 12th century, notes Richard Trexler, Roman women threw their newborns into the Tiber river in daylight.[48]” …

400px-Kodeks_tudela_21“Philosopher Han Fei Tzu, a member of the ruling aristocracy of the 3rd century BC, who developed a school of law, wrote: “As to children, a father and mother when they produce a boy congratulate one another, but when they produce a girl they put it to death.”[63]

“Buddhist belief in transmigration allowed poor residents of the country to kill their newborn children if they felt unable to care for them, hoping that they would be reborn in better circumstances. Furthermore, some Chinese did not consider newborn children fully “human”, and saw “life” beginning at some point after the sixth month after birth.[65]

“Contemporary writers from the Song dynasty note that, in Hubei and Fujian provinces, residents would only keep three sons and two daughters (among poor farmers, two sons and one daughter), and kill all babies beyond that number at birth.[66]”

Sex Ratio at birth in the People's Republic of China
Sex Ratio at birth in the People’s Republic of China

“It was not uncommon that parents threw a child to the sharks in the Ganges River as a sacrificial offering. The British colonists were unable to outlaw the custom until the beginnings of the 19th century.[82]:78

“According to social activists, female infanticide has remained a problem in India into the 21st century, with both NGOs and the government conducting awareness campaigns to combat it.[83] …

“In the Eastern Shoshone there was a scarcity of Indian women as a result of female infanticide.[100] For the Maidu Native Americans twins were so dangerous that they not only killed them, but the mother as well.[101] In the region known today as southern Texas, the Mariame Indians practiced infanticide of females on a large scale. Wives had to be obtained from neighboring groups.[102]

Meanwhile in the Americas:

In 2005 a mass grave of one- to two-year-old sacrificed children was found in the Maya region of Comalcalco. The sacrifices were apparently performed for consecration purposes when building temples at the Comalcalco acropolis.[2] …

Archaeologists have found the remains of 42 children sacrificed to Tlaloc (and a few to Ehecátl Quetzalcóatl) in the offerings of the Great Pyramid of Tenochtitlan. In every case, the 42 children, mostly males aged around six, were suffering from serious cavities, abscesses or bone infections that would have been painful enough to make them cry continually. Tlaloc required the tears of the young so their tears would wet the earth. As a result, if children did not cry, the priests would sometimes tear off the children’s nails before the ritual sacrifice.[7]

And don’t get me started on cannibalism.

James Cook witnessing human sacrifice in Tahiti
James Cook witnessing human sacrifice in Tahiti

It is perhaps more profitable to ask which cultures didn’t practice some form of infanticide/infant sacrifice/cannibalism than which ones did. The major cases Wikipedia notes are Ancient Egypt, Judaism, Christianity, and Islam (we may note that Judaism in many ways derived from ancient Egypt, and Christianity and Islam from Judaism.) Ancient Egypt stands out as unique among major the pre-modern, pre-monotheistic societies to show no signs of regular infanticide–and even in the most infamous case where the Egyptian pharaoh went so far as to order the shocking act, we find direct disobedience in his own household:

3 And when she [Jochebed] could not longer hide him [the baby], she took for him an ark of bulrushes, and daubed it with slime and with pitch, and put the child therein; and she laid it in the flags by the river’s brink.4 And his sister stood afar off, to wit what would be done to him.

pharaohs_daughter-15 And the daughter of Pharaoh came down to wash herself at the river; and her maidens walked along by the river’s side; and when she saw the ark among the flags, she sent her maid to fetch it.

6 And when she had opened it, she saw the child: and, behold, the babe wept. And she had compassion on him, and said, “This is one of the Hebrews’ children.”

7 Then said his sister to Pharaoh’s daughter, “Shall I go and call to thee a nurse of the Hebrew women, that she may nurse the child for thee?”

8 And Pharaoh’s daughter said to her, “Go.” And the maid went and called the child’s mother.

9 And Pharaoh’s daughter said unto her, “Take this child away, and nurse it for me, and I will give thee thy wages.” And the women took the child, and nursed it.

10 And the child grew, and she brought him unto Pharaoh’s daughter, and he became her son. And she called his name Moses: and she said, “Because I drew him out of the water.”

–Exodus 2:3-10

I don’t know the actual infanticide numbers in modern Muslim countries (le wik notes that poverty in places like Pakistan still drives infanticide) but it is officially forbidden by Islam.

According to Abortions in America: • Black women are five times more likely to abort than white women. • 69% of pregnancies among Blacks are unintended, while that number is 54% among Hispanics and 40% of pregnancies among Whites. • Planned Parenthood, ... has located 80% of its abortion clinics in minority neighborhoods
According to Abortions in America:
• Black women are five times more likely to abort than white women.
• 69% of pregnancies among Blacks are unintended, while that number is 54% among Hispanics and 40% of pregnancies among Whites.
• Planned Parenthood, … has located 80% of its abortion clinics in minority neighborhoods

Today, between the spread of Abrahamic religions, Western Values, and general prosperity, the infanticide rate has been cut and human sacrifice and cannibalism have been all but eliminated. Abortion, though, is legal–if highly controversial–throughout the West and Israel.

According to the CDC, the abortion rate for 2013 was 200 abortions per 1,000 live births, or about 15% of pregnancies. (The CDC also notes that the abortion rate has been falling since at least 2004.) Of these, “91.6% of abortions were performed at ≤13 weeks’ gestation; … In 2013, 22.2% of all abortions were early medical abortions.”

To what can we attribute this anti-infanticide sentiment of modern monotheistic societies? Is it just a cultural accident, a result of inheritance from ancient Egypt, or perhaps the lucky effects of some random early theologian? Or as the religious would suggest, due to God’s divine decree? Or is it an effect of the efforts parents must expend on their few children in societies where children must attend years of school in order to succeed?

According to Wikipedia:

In ecology, r/K selection theory relates to the selection of combinations of traits in an organism that trade off between quantity and quality of offspring. The focus upon either increased quantity of offspring at the expense of individual parental investment of r-strategists, or reduced quantity of offspring with a corresponding increased parental investment of K-strategists, varies widely, seemingly to promote success in particular environments. …

In r/K selection theory, selective pressures are hypothesised to drive evolution in one of two generalized directions: r– or K-selection.[1] These terms, r and K, are drawn from standard ecological algebra as illustrated in the simplified Verhulst model of population dynamics:[7]

d N d t = r N ( 1 − N K ) {\frac {dN}{dt}}=rN\left(1-{\frac {N}{K}}\right)

where r is the maximum growth rate of the population (N), K is the carrying capacity of its local environmental setting, and the notation dN/dt stands for the derivative of N with respect to t (time). Thus, the equation relates the rate of change of the population N to the current population size and expresses the effect of the two parameters. …

As the name implies, r-selected species are those that place an emphasis on a high growth rate, and, typically exploit less-crowded ecological niches, and produce many offspring, each of which has a relatively low probability of surviving to adulthood (i.e., high r, low K).[8] A typical r species is the dandelion Taraxacum genus.

In unstable or unpredictable environments, r-selection predominates due to the ability to reproduce quickly. There is little advantage in adaptations that permit successful competition with other organisms, because the environment is likely to change again. Among the traits that are thought to characterize r-selection are high fecundity, small body size, early maturity onset, short generation time, and the ability to disperse offspring widely. …

By contrast, K-selected species display traits associated with living at densities close to carrying capacity, and typically are strong competitors in such crowded niches that invest more heavily in fewer offspring, each of which has a relatively high probability of surviving to adulthood (i.e., low r, high K). In scientific literature, r-selected species are occasionally referred to as “opportunistic” whereas K-selected species are described as “equilibrium”.[8]

In stable or predictable environments, K-selection predominates as the ability to compete successfully for limited resources is crucial and populations of K-selected organisms typically are very constant in number and close to the maximum that the environment can bear (unlike r-selected populations, where population sizes can change much more rapidly).

Traits that are thought to be characteristic of K-selection include large body size, long life expectancy, and the production of fewer offspring, which often require extensive parental care until they mature.

Of course you are probably already aware of Rushton’s R/K theory of human cultures:

Rushton’s book Race, Evolution, and Behavior (1995) uses r/K selection theory to explain how East Asians consistently average high, blacks low, and whites in the middle on an evolutionary scale of characteristics indicative of nurturing behavior. He first published this theory in 1984. Rushton argues that East Asians and their descendants average a larger brain size, greater intelligence, more sexual restraint, slower rates of maturation, and greater law abidingness and social organization than do Europeans and their descendants, who average higher scores on these dimensions than Africans and their descendants. He theorizes that r/K selection theory explains these differences.

I’d be remiss if I didn’t also mention that the article states, “Rushton’s application of r/K selection theory to explain differences among racial groups has been widely criticised. One of his many critics is the evolutionary biologist Joseph L. Graves, who has done extensive testing of the r/K selection theory with species of Drosophila flies. …”

Genetics or culture, in dense human societies, people must devote a great deal of energy to a small number of children they can successfully raise, leading to the notion that parents are morally required to put this effort into their children. But this system is at odds with the fact that without some form of intervention, the average married couple will produce far more than two offspring.

Ultimately, I don’t have answers, only theories.

Source: CDC data, I believe
Source: CDC data, I believe

Adoption pt. 3 Cross-cultural and historic context

Now there arose up a new king over Egypt, which knew not Joseph. And he said unto his people, Behold, the people of the children of Israel are more and mightier than we: … And Pharaoh charged all his people, saying, Every son that is born ye shall cast into the river, and every daughter ye shall save alive. …

And the woman conceived, and bare a son: and when she saw him that he was a goodly child, she hid him three months. And when she could not longer hide him, she took for him an ark of bulrushes, and daubed it with slime and with pitch, and put the child therein; and she laid it in the flags by the river’s brink. And his sister stood afar off, to wit what would be done to him.

And the daughter of Pharaoh came down to wash herself at the river; and her maidens walked along by the river’s side; and when she saw the ark among the flags, she sent her maid to fetch it. And when she had opened it, she saw the child: and, behold, the babe wept. And she had compassion on him, and said, This is one of the Hebrews’ children.

Then said his sister to Pharaoh’s daughter, Shall I go and call to thee a nurse of the Hebrew women, that she may nurse the child for thee?

And Pharaoh’s daughter said to her, Go. And the maid went and called the child’s mother. And Pharaoh’s daughter said unto her, Take this child away, and nurse it for me, and I will give thee thy wages. And the women took the child, and nursed it.

And the child grew, and she brought him unto Pharaoh’s daughter, and he became her son. And she called his name Moses: and she said, Because I drew him out of the water. (Exodus 1-2)

Here I feel compelled to stop and note that what we call “adoption” in the US is a specific legal construct in which the biological parents lose all legal rights to the child (they may or may not be dead) and the adoptive parents gain 100% of legal rights. The adoptive parents are thereafter considered to be the child’s “true” parents, and even birth certificates are re-written with the adoptive parents’ names on them instead of the biological parents’.

This construct is only about 100 years old, and not common to all societies. According to Wikipedia:

… the Progressive movement swept the United States with a critical goal of ending the prevailing orphanage system. The culmination of such efforts came with the First White House Conference on the Care of Dependent Children called by President Theodore Roosevelt in 1909,[33] where it was declared that the nuclear family represented “the highest and finest product of civilization” and was best able to serve as primary caretaker for the abandoned and orphaned.[34][35] … As late as 1923, only two percent of children without parental care were in adoptive homes, with the balance in foster arrangements and orphanages. …

England and Wales established their first formal adoption law in 1926. The Netherlands passed its law in 1956. Sweden made adoptees full members of the family in 1959. West Germany enacted its first laws in 1977.[49]

Prior to 1900, and in many cultures today, even kids who were “adopted” were (as far as I can tell,) still considered the children of their biological parents.

Adoption has taken many forms throughout history (and today), shaped by local family norms and traditions. Just off the top of my head, we have:

Kin adoption

Stranger adoption

Fosterage (half adoption)

Noble fosterage/kin fosterage

Elder care adoption

Forced adoption

Kin adoption is an obvious one: that’s taking in the children of your deceased relatives. Kin adoption has probably been with us for as long as there’ve been people–maybe longer–and is probably a human universal. It is obviously a genetically sound strategy. Your nephews and nieces and even cousins share more of your DNA than distant strangers, so ensuring that they survive helps put more of your DNA into the world.

Stranger adoption is the adoption of some totally unknown infant whose parents you’ve probably never met. That’s what Genghis Khan was up to, though technically, he might have met those kids’ parents for a few seconds before killing them. Stranger adoption is still uncommon in many societies, like China, Korea (hence the large numbers of Chinese and Korean babies available for foreigners to adopt,) and the Arab states.

The Justinian Code, issued between 529 and 534, distinguishes between kin and stranger adoption, clearly regarding kin adoption as superior:

…when a filius familias is given in adoption by his natural father to a stranger, the power of the natural father is not dissolved; no right passes to the adoptive father, nor is the adopted son in his power, although we allow such son the right of succession to his adoptive father dying intestate. But if a natural father should give his son in adoption, not to a stranger, but to the son’s maternal grandfather; or, supposing the natural father has been emancipated, if he gives the son in adoption to the son’s paternal grandfather, or to the son’s maternal great-grandfather, in this case, as the rights of nature and adoption concur in the same person, the power of the adoptive father, knit by natural ties and strengthened by the legal bond of adoption, is preserved undiminished, so that the adopted son is not only in the family, but in the power of his adoptive father. [bold mine.]

Fosterage, as I’m using it here, is any kind of semi-adoption where either the child’s ties to their birth family are not entirely severed, or the adoptive parents are not considered the child’s full parents. For example according to Wikipedia, adopted children in pre-modern Japan could inherit their parents’ aristocratic rank (if they had one,) but adopted children in pre-modern Britain could not. The Japanese therefore practiced full adoption while the British practiced fosterage. (See also Wuthering Heights, aka “an essay on the dangers of adopting Gypsy orphans.”) Historically, most “adoptions” were probably closer to fosterage.

Noble fosterage/kin fosterage are systems of shuffling children around between different parts of a family or allied families. For example, children might go live with an aunt for a year while their mother works in a distant village, or the child of a noble family might be raised by a different noble family to help cement an alliance between them. In these cases, the birth parents aren’t seen as “giving up” their children at all. Noble/Kin fosterage seems to have been common in ancient Rome, Ireland, and many African societies (and probably many others.) It is probably also related to the practice of having a child “adopted” by a tradesman to teach the trade, as detailed in the Code of Hammurabi, though we would today call this “apprenticeship.” (See Hammurabi discussed below.)

Fosterage in Ireland, from the Wikipedia:

In Gaelic Ireland a kind of fosterage was common, whereby (for a certain length of time) children would be left in the care of other fine members, namely their mother’s family, preferably her brother.[30] This may have been used to strengthen family ties or political bonds.[29] Foster parents were beholden to teach their foster children or to have them taught. Foster parents who had properly done their duties were entitled to be supported by their foster children in old age (if they were in need and had no children of their own).[30] As with divorce, Gaelic law again differed from most of Europe and from Church law in giving legal standing to both “legitimate” and “illegitimate” children.[30]

Elder care adoption appears to be a system that older folks in some societies have used to ensue that there is someone younger around to care for them in their old age, if none of their biological children can be called upon (or they have none.) These systems don’t appear to involve the parents caring for the child, or necessarily any children at all–a 20 year old is a much better choice for someone to care for you as you age than a 5 yr old, after all. I don’t know much about this system, so I’ll have to add more details when I find them.

Forced adoption is just any adoption that happens to be forced by the state, eg, the removal of Native American children by the US gov’t, the removal of Polish children who looked too German by the Nazis, the removal of Aborigine children by the Australian gov’t, and many individual cases involving parents deemed incompetent to care for their children.

The Code of Hammurabi goes into some detail on various situations that might arise related to adoption:

185. If a man adopt a child and to his name as son, and rear him, this grown son can not be demanded back again.

186. If a man adopt a son, and if after he has taken him he injure his foster father and mother, then this adopted son shall return to his father’s house.

187. The son of a paramour in the palace service, or of a prostitute, can not be demanded back.

188. If an artizan has undertaken to rear a child and teaches him his craft, he can not be demanded back.

189. If he has not taught him his craft, this adopted son may return to his father’s house.

190. If a man does not maintain a child that he has adopted as a son and reared with his other children, then his adopted son may return to his father’s house.

191. If a man, who had adopted a son and reared him, founded a household, and had children, wish to put this adopted son out, then this son shall not simply go his way. His adoptive father shall give him of his wealth one-third of a child’s portion, and then he may go. He shall not give him of the field, garden, and house.

192. If a son of a paramour or a prostitute say to his adoptive father or mother: “You are not my father, or my mother,” his tongue shall be cut off.

193. If the son of a paramour or a prostitute desire his father’s house, and desert his adoptive father and adoptive mother, and goes to his father’s house, then shall his eye be put out.

Jeez! Hammurabi sure had something against adopted kids wanting to know who their biological parents were! (And people think closed adoptions are a pain.)

#191 reminds us that, in Hammurabi’s time, adoptive children were not seen as full children with the same rights as other children, but were seen as only 1/3 children–and unable to inherit certain classes of property.