From our inherent sense of fairness, we can derive some bedrock norms of behavior—virtues, vices, and sins—and discover our natural ways of restoring justice.

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There are now 8 comments... what are your thoughts?
  1. jb says

    In one of my books about the Kalahari Bushmen the author is told a story about a man who “went crazy” one evening, shot two other members of the band with poison arrows, and then ran off into the night. In the morning three of the remaining men took off after him, hunted him down, and killed him. They felt bad about this, and it wasn’t done as punishment or revenge. It was just necessary, because they couldn’t leave him out there alive and risk his coming back unexpectedly and killing more people.

  2. The Illustrated Guide to Legal Anthropology?

    tl;dr: I don’t know where you’re going, I don’t know whether it’s worth the journey, and I’m spending a lot of my time following you.

    Write what you please, of course, but just FYI, I stopped following your other comic, and my finger is hovering over the unsubscribe button for this one.

    This series is trading in extremely speculative anthropology (or ethical philosophy disguised as anthropology) and I imagine on general principles that a proper treatment of either would be far more complex than what you can convey here.

    You do an excellent job of conveying the complexity of law. I trust those explanations, in no small part because you are an expert. You claim no special expertise in (cultural) anthropology, so all I can do when I’m reading this section is to say, “Nice pictures. Interesting lay speculation. But I have no idea if it’s true or even anywhere close to the truth.” And TBH, I don’t even trust PhDs in anthropology any more than I trust PhDs in economics (and I’m an economist).

    Philosophically, I’ve already read a bit of Rousseau.

    Regardless of the above, what does any of this have to do with *law*?

    Is the law as we know it today really rooted in the anthropological development of social cooperation? Does it make sense even to *contrast* law with small-group social cooperation mechanisms? (I’m guessing from the last few panels that that’s a potential theme for the future.)

    A while ago, I read /Sapiens/ by Yuval Noah Harari, who advances a speculative theory that a major cognitive innovation was the development of religion and religious story-telling, capable of uniting more than small bands of hunter-gatherers. He presents the development not as an incremental advance but something fundamentally innovative, a cognitive “state change” if you will. Perhaps it makes more sense to look there for the origins of modern law.

    How about the Marxist interpretation? Marxists hold that law is rooted not in anthropology, not even in the development of large-scale societies, but in the establishment and perpetuation of *inequality*, ruler and ruled, have and have-not, bourgeoisie and proletariat, itself fundamentally rooted in the technology to store food for many years and the division of labor.

    • I’m with Larry. This is line of thought you’ve been following is *really* interesting…but I don’t know how much salt to take it with because it seems like you’re trying to present the state of the art in our understanding of Anthropology.

      How does all this contemporary theory impact the way we should understand an agreement which 30 propertied men made in 1787? How does that impact the way we should understand the decision of 16 states sign on to that agreement by 1796? How does that impact the way we should understand the dramatic changes to that agreement written in the blood of 1865? Or the desperation of 1932?

    • I’d hate to see you go, yours are some of the most thought-provoking comments I get! Where we’re going is Philadelphia, 1787-1789. Why we’re taking this journey is to find out how government happened, how it worked in most of the world for most of history, and how certain cultural exceptions to exceptions to exceptions created a reality where certain ideas made perfect sense, which were (and often remain) incomprehensible or unworkable in most other contexts.

      Is it worth the journey? I obviously think so, or I wouldn’t have bothered investing so much time into it. Why? Primarily because I want my readers to have a common bedrock starting point before launching into what we’ve done with Constitutional Law since then. As you’ve probably noted from my far lengthier history of self-incrimination law, I’m a firm believer in setting the historical context rather than presenting often complex philosophical principles in a vacuum and saying “this is just the way it is.” The law evolves constantly. Anybody can Google what the law is at the moment. How much better to know why it is the way it is, how it got here, and be able to understand where it might go next and why? To look at a law that strikes you as unjust and know why, and have some ideas of how it could work differently? I know this is a digression on a digression, but I really do want to ensure my target audience (interested high schoolers and undergrads, though a surprising proportion are law students and adults long out of school) has the prerequisites down before getting to the hard ideas.

      I enjoyed Sapiens very much when it came out, though I cannot agree with some of Harari’s conclusions and inferences. They sound good, but… For example, we’re getting to religion VERY soon, but the actual historical evidence doesn’t quite support his approach. Similarly, various hypotheses of government arising from large irrigation and granary projects are tempting, but can be difficult to reconcile with the physical and historical record we actually have. I have my own thesis that I’ll be presenting, for better or worse. I haven’t yet seen it presented elsewhere, which makes me VERY nervous (though I have innumerable sources to thank for the insights I’m building on—if I used footnotes, this comic would be unreadable!). I’d actually be very interested to hear what a Marxist scholar would have to say about my presentation as it goes, because there are bits that mesh and bits that clash, and perhaps there’s a synthesis I’m missing.

      • I’d hate to see you go, yours are some of the most thought-provoking comments I get!

        I’d hate to go. It’s not often I read something that prompts me to comment. I think I’ll stick around a bit. However…

        https://www.youtube.com/watch?v=sXE8LdXzeHM

        ;-)

        I’m a firm believer in setting the historical context rather than presenting often complex philosophical principles in a vacuum and saying “this is just the way it is.”

        A worthy pursuit! And very Marxian.

        I cannot agree with some of Harari’s conclusions and inferences. They sound good, but… For example, we’re getting to religion VERY soon, but the actual historical evidence doesn’t quite support his approach. Similarly, various hypotheses of government arising from large irrigation and granary projects are tempting, but can be difficult to reconcile with the physical and historical record we actually have.

        The above is, of course, the crux of the biscuit. My comments earlier use a similar approach: your ideas sound good, but…

        I am neither an historian, anthropologist, nor archeologist. I don’t even know what the historical/archeological evidence is, how thorough it is, what the arguments are over it’s interpretation, who’s doing the arguing, and how the academic conversation affects their tenure.

        And you’re not (or I have not seen you claim you are) an historian, anthropologist, nor archeologist. Harari has a PhD in history. If you dispute the support of historical evidence for his theories, well, I cannot do much but be slightly more skeptical than I already was.

        So this lengthy context does not establish “a common bedrock starting point.” I don’t *disbelieve* what you’ve said, but I don’t believe it either, at least not in the sense that I believe you when you talk about legal theory, precedent, and history of law.

        I don’t really see that you have made that many substantive points since you began this arc (I must admit to skimming a bit on the last few pages); perhaps you are mistaking length and detail for establishing authority.

        This is no different from a trial: you have to tell a story, a story you know will be disputed at every point, and as a person who greatly admires your work, I’m telling you, Nathan, that you are putting this juror to sleep.

  3. the state of the art in our understanding of Anthropology.

    If there even is such a thing, at least relating to human societies of even 10,000 years ago, much less 100,000.

  4. The way you tie the discussion of human evolution to the virtues and virtue ethics is interesting. However, it seems somewhat arbitrary and superfluous. Where it looks like you are going with this is that morality is rooted in enlightened self-interest: We are descended from the humans and proto-humans who found ways to cooperate with those who are not kin for mutual benefit. So we alienate others at our own peril. But in that case, why even bother bringing in the virtues? Those were conceived in an environment marked by the prevalence of food-storage technology, large cities, and hierarchies. In other words, in an environment completely different from that of our paleolithic ancestors. So saying that that is how we evolved is speculative at best.

    More importantly, it leads to weird results. The ones about sloth and pride sound reasonable. But not the ones in between them. For example, you didn’t really do enough to distinguish gluttony, greed, and desire. They all seem like some variation of wanting more stuff for yourself, and only yourself, than you should have or need. So it seems like those could all be reduced to one vice. Also, saying that desiring sex is a vice is wrongheaded for two reasons: 1. Sex is not a finite resource. We can have more of it as long as we have free-time and can contact potential partners. 2. Wanting sex for yourself as opposed to “us” is nonsensical. Sex necessarily involves more than one person. When it only involves one person, we call it masturbation. Wanting more sex is not going to cause a sex-shortage for everyone else. I think that what you meant was wanting more mates for yourself, not for us. But that isn’t even feasible until you have the resources to obtain and support multiple mates. So it wouldn’t have come up that often before the invention of agriculture. With wrath, you really didn’t do a good enough job of distinguishing between the pro-social emotions of indignation and anger and the anti-social emotions of rage and vengeance. If you don’t explicate the differences in consequence of those emotions, then it just sounds like this: https://www.youtube.com/watch?v=F2Q_4rm8SVI Envy: That all sounds reasonable. Until you realize that this tendency to hate envy supposedly evolved among hunter-gatherers. The people who insult especially massive and good meat to stop the hunter who provides it from thinking that they are better than others. Maybe this is me not knowing enough about anthropology and hunter-gatherer society. But if paleolithic people were anything like modern hunter-gatherers, then it sounds like they would be more pro-envy than con-envy. In fact, some scientists believe that justice is rooted not in the common good, the survival of the band, but in the desire to prevent others from having more than you, in other words, in envy.

    Your attempt to work in the 7 deadly sins was a valiant effort. But I think that it did more harm than good to your case. It would have been easier to just say that we evolved to survive through cooperation. So we naturally don’t like when others act in a way that increase the costs that we face for cooperation, either by taking advantage of us, or by refusing to cooperate for fear that we will take advantage of them.

    • What Gregory said. Two panels gets the idea across.

      This reminds me a lot of the big controversy in evolutionary biology between Gould and Dawkins, i.e. punctuated equilibrium vs. steady evolution.

      And evolutionary biology in general – how much of evolution is more or less “inevitable”, dictated by what a biological organism has to look like to survive and reproduce, vs. how much of it is just random chance. Do we have two legs and two arms because that’s the best way to stand up and grab things? Or do we have two legs and two arms just because the species that climbed out of the water just happened to have four and not six limbs?

      And, of course, the big meghilla of Marxist historians: historical determinism vs. accumulation of historical accidents.

      I don’t know about any of these things, and I don’t know about the anthropology you’re talking about.

      And I honestly don’t think *anyone* really knows: not you, not me, not the greatest minds of science. I don’t think anyone *will* know, at least not in my lifetime. You couldn’t convince me even if you did include the footnotes, because I really can’t be convinced about something like this without the backing of an entire academic discipline over a couple of decades.

      I really feel like you’re setting your self up to fail: You seem to be saying, “If you don’t buy this, the rest isn’t going to make sense.” Well, I’m not buying it. Not because you’re not explaining it clearly — you are — not because it doesn’t sound plausible — it does — but just because the subject is too big for any single person, much less a layperson, to be convincing.

      You can’t start in the Precambrian with the earliest ancestor of the chordates. So start with what you *know*, and what we all believe you know, and go from there. Will it be complete? Of course not. Will you hit upon the One True Universal Theory of Law? Sorry, not gonna happen. Will we all wake up tomorrow knowing a little bit more about the world because the inestimable Nathan Burney has shared his thoughts? Yes, and I would be happy with that.

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