The Illustrated Guide to Law

Join the conversation! There are now 22 comments on this chapter's page 55. Natural Regulation: No Hierarchy, No Religion. What are your thoughts?

1. I have to wonder if burying the dead was neither religious nor symbolic, but simply practical. First, dead bodies start to smell bad and second, are a source of disease. Getting rid of them would be a survival positive practice. The oder, aside from being offensive, would attract predators. That, along with the disease factor, would make bands that disposed of their dead more likely to survive than those that did not.

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   • I linked this in the previous comic’s comments, but a 2nd time won’t hurt: [link]

     Those modern hunter-gatherers, at least, are described as only having started to (nominally) bury their dead in the past generation or so, so maybe 20-30 years. Two relevant sections, this first from the end of the article:

     > Even when one of their own dies, there is not a lot of fuss. They dig a hole and place the body inside. A generation ago, they didn’t even do that—they simply left a body out on the ground to be eaten by hyenas. There is still no Hadza grave marker. There is no funeral. There’s no service at all, of any sort. This could be a person they had lived with their entire life. Yet they just toss a few dry twigs on top of the grave. And they walk away.

     And earlier:

     > They move camp roughly once a month, when the berries run low or the hunting becomes tough or there’s a severe sickness or death.

     Why go to the effort of burying your dead, if moving camp is easier? The death could also be caused by dangerous predators or illness, which it might be a good idea to move away from. And handling the dead risks more illness. I agree that in cases where the band has a less nomadic existence, some kind of burial would have been more likely, but the more nomadic the band, and the fewer possessions they had, the easier it would be just to move camp.

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2. Even apes have bullies – the idea that there wasn’t inter-personal violence and attempts to control others behavior is a bit at odds with what we see in both ourselves and other social animals. Sure, if it was 1 strong guy against 20 weaker, the strong dude couldn’t impose his will. But when that dude has a few buddies that’s all it really takes. And it could still benefit the wider group to not kick them out if they’re strong enough to fend off other bands trying to take some of their food.

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3. Representing a scientific consensus as if it were uncontroversial fact is already fraught. It simply misunderstands what science can do. Evidence and data are “facts” – conclusions about that data are interpretations, and good scientists always use phrasing (or insider jargon shorthand for such phrasing) that recognizes the possibility that new data may alter conclusions. Unfalsifiable claims are inherently unscientific.

   Much worse, though, is purporting to present a scientific consensus where no such consensus exists, and then steadfastly refusing to cite references. I believe him when Nathan claims to have done “lots of reading,” but frankly that is insufficient. As a legal expert, his bona-fides are verifiable, and legal references are unambiguous for most of what he has presented in previous strips. Claims as to what the law is, how it works, and even the historical basis for the law, are falsifiable, which puts them on solid ground.

   But the last few pages of uncited representation of an extremely difficult to study period of human prehistory as a single, clear narrative stating anthropological speculation as if it were established fact is beyond the pale. I’ve been careful to be respectful and polite previously, but this website claims to be “educational,” and it’s just irresponsible to step well outside your area of expertise and then make this kind of repeated error in a way that is likely to be influential towards people, especially young people, who have been convinced by earlier material that this site is a credible educational resource.

   Nathan, please stop telling this just-so story without citing your sources in a manner that purports to be facts, about an entirely undocumented period of human development. We simply do not know the things you claim that we know, for certain. At the very least, you should be heavily qualifying your statements as being based on speculation, one amateur researcher’s impression and viewpoint of how some people think things *may* have been.

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4. I have to say, I agree with Leperflesh: The story you’re presenting is nice, but I’ve read some that contradicts your account or finds the evidence insufficient to justify the story. I’m not an anthropologist, so I don’t know what’s true, false, and uncertain.

   And, while anthropology is fun, I don’t know really what it has to do with *law*. There’s a lot of distance between hunger-gatherer societies and Greco-Roman culture. You’re really going to have to pass through Rome and more than a many centuries of European culture to get to the Constitution. I don’t know that it really matters how we got from hunting mammoths to Roman law, because how we got to Roman law doesn’t seem to translate to how we got from Rome to Philadelphia.

   I’m also fairly confident that the guys who wrote the Constitution had no idea how our millennia-ago ancestors lived.

   There’s also a genetic or naturalistic fallacy working. Suppose your anthropology is absolutely correct: so what? Would our present understanding of law and the US Constitution change if we found out your anthropology is completely wrong?

   It’s fun to read, and I hope it’s fun to draw, but like your other comic on terrorism (which I haven’t read in forever) you seem to be focusing on irrelevant aspects of an interesting topic.

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   • What does this have to do with law?

     Alexander Hamilton himself said, “The science of policy is the knowledge of human nature.” If we truly wish to succeed in governing ourselves, to achieve that “More Perfect Union”, it behooves us to understand how we governed ourselves for the vast majority of our human existence that existed prior to the dawn of human civilization.

     Now, regarding the discussion on Mr. Burney’s authority and accuracy of human nature, I personally do not hold any expertise on the subject matter. But I have studied a bit on neurosciences. And I was pleasantly surprised on Mr. Burney’s accurate description of memory formation and recollection found much earlier in his comic. Given his liberal education extending beyond the discipline of law, I suppose it to say that I have faith his portrayal of early human history is not misleading.

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     • Alexander Hamilton himself said, “The science of policy is the knowledge of human nature.” If we truly wish to succeed in governing ourselves, to achieve that “More Perfect Union”, it behooves us to understand how we governed ourselves for the vast majority of our human existence that existed prior to the dawn of human civilization.

       A fair point. You (and perhaps Nathan) seem to be going down a normative rather than a descriptive road here. What kind of constitution should we have? What should a constitution do? Such questions are not entirely outside the scope of Nathan’s work. As you mention, his work on memory formation and recollection give a strong scientific basis to a normative critique of testimony in American law.

       On the other hand, the scientific understanding of human societies predating writing and history seems pretty thin, especially when compared to the neuroscience in the testimony series. We have a lot of brains now to study directly; we have to piece out pre-literate history indirectly from the thinnest of evidence. It seems much easier to inadvertently retroject a founding mythology and call it “science”.

       Also, neuroscience is largely genetic and biological, whereas law and culture are much more fluid. We have learned a few things in the last 5-10 thousand years, not necessarily about “human nature” (whatever that is) but rather how to solve problems of social organization on scales orders of magnitude greater than our pre-literate and pre-agricultural ancestors.

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       • “The scientific understanding of human societies predating writing and history seems pretty thin, especially when compared to the neuroscience in the testimony series.”

         And a fair point in turn. Perhaps I possess a sense of trust that our knowledge of early humanity is well researched and possessing minimal speculation. Decades ago, I once watched an archeologist spend nearly 40 minutes discussing the amazing importance of a single notch etched into an ancient stone that paved the road to the Acropolis. In articulate detail, he explained how the notch was proof that the stone was recycled from an earlier structure destroyed after an invasion, reinforcing a historical timeline of events in Ancient Greece. That experience, which demonstrated to me the depth of human research, reinforces my trust that the foundation of information presented here is not without its own merit.

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         • Before making any conclusions based on artifacts, I recommend that people find a copy of “Motel of the Mysteries” by David Macaulay. It is the account of the excavation, in the 41st century, of a 20th century motel and the archeologist’s interpretation of the artifacts found therein.

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5. It seems like you’re projecting Rousseau on anthropology. But why not just start with Rousseau himself? Just because his foundational myth might not be scientifically correct does not obviate his intellectual and cultural influence.

   I’m wildly speculating that you’re working up to *justifying* (or condemning) the Constitution. But the Constitution is certainly not in need of justification (since we’re presently using it and most people seem to think that beyond a few tweaks it’s working well enough), and if it needs condemnation, that it’s ideas come from a false foundational myth is insufficient grounds.

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6. That first exchange is especially contrived. What exactly makes you think that the word “chief” implies dominance as opposed to leadership? The difference between dominance and leadership seems to be that the former is anti-social whereas the latter is pro-social. But since when is the word “chief” associated with anti-social behavior? More importantly, what exactly is your definition of religion? Paleolithic peoples had ritual and belief in an after-life. Seems like religion to me. [link 1] [link 2]

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   • My take on dominance/leadership here is that “chief” implies a formal, permanent or semi-permanent position that everyone acknowledges and which would have to be enforced at times, while “leader” is much more ad-hoc and informal, and might change e.g. depending on the activity in question. That ties in with “chief” being about dominance” but “leader” being about leadership, charisma, experience, earned trust etc. Even after chiefs were a thing, the two would obviously often intersect or combine in the same person, but they’re separate concepts

     “Paleolithic” already includes societies beyond band-based hunter-gatherer ones (towards the end, but still). There are modern hunter-gatherer peoples (or at least one example, the Hadza) who don’t have religion, or beliefs about the after-life.

     The transition to agriculture, tribal social structures, etc. was a *transition*, and it’s still a matter of some debate whether agriculture (specifically permanent habitation for the production of grain crops), religion, and alcohol were invented sequentially or simultaneously, and/or in which order – one school of thought is that alcohol (initially produced seasonally from wild grains/fruit) was such an alluring substance that it caused humans to settle down so they could grow more grain and get more alcohol (as well as store grain and have alcohol available around the year), and religion came about as a meme that enabled resolution of conflicts and enforcement of new social structures that became necessary after permanent settlement.

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     • Back when I was in school they taught us that religion came before agriculture. Religion emerged back in hunter-gatherer times to help people deal with death. So it emerged as soon as people were smart enough to contemplate their eventual demise.

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       • I tried to post this link to back this claim up earlier. I think that the website doesn’t like my VPN. Maybe now it will work. Eugene Weber concurs. https://www.youtube.com/watch?v=PkZgLhtDeoU&list=PLYbocufkwRFAS80nLFShkXSblfcFTXwRH

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7. Yes, it is all speculation. But as speculation goes it’s not bad, and I’m interested to see how it’s going to get tied into Constitutional law.

   One point: while the “band society” described here fits reasonably well with what I know about hunter-gatherer cultures in Africa (humanity’s homeland), there may be counterexamples among the Aboriginal Australians.

   I’m less well informed there, but I do remember reading some really freaky things about some of those groups. For example, among the Tiwi the old men get all the young women as wives, while the young men are forced to make do with older widows. Obviously this doesn’t accord with what young people are going to naturally want, but although the Wikipedia article doesn’t go into it I remember reading somewhere about how the culture of the Tiwi gives the older men tyrannical power over the young, who can be severely punished for breaking the rules. This does not fit well with the “band society” model being advanced here, yet the Abos were among the most primitive peoples on Earth when they were first contacted, and other than their location on the periphery of the Great Human Migration rather than at its origin I’m not sure why their cultures shouldn’t be given the same weight as African HGs.

   (BTW, how do you manage to keep your comments section spam-free without a CAPTCHA challenge or something like that? You don’t even have one of those “I am not a robot” checkboxes. Is it just security by obscurity?)

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   • The Tiwi model actually makes a lot of sense. Rather than both members of a young couple being totally unexperienced in relationships, one member has had the advantage of experience and the teaching of an older partner when they were young. This would, I believe, make for much more stable relationships, an advantage in small groups especially.

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8. I just keep reminding myself that this is a comic (although enlightening about US law), and it is Nathan’s comic, so he may write anything he wants. I have always respected the following train of thought:
   “It is the mark of an educated mind to be able to entertain a thought without accepting it.”
   — Aristole

   That is, take what you want and leave the rest…

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9. Whenever you go among experts outside your own subject, you go among them as a lamb among wolves. You may not know whether you are reading a sound theory or a piece of fashionable speculation that is much more shaky than it looks. The history of human knowledge is littered with the ruins of ideas that were once widely accepted by experts! So tread carefully.

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   • “The history of human knowledge is littered with the ruins of ideas that were once widely accepted by experts! So tread carefully.”

     Well said!

     And since no one has yet speculated on Nathan’s cliffhanger, I’ll throw out an educated guess. Since he’s alliterating the letter ‘r’ with “Without rulers, without religion…”, and deducting an r-word somehow is relating to the governing of humans, my guess is “Restitution.”

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     • Given that Sis started to say it several times before being cut off, I’d go with “peer pressure”. Not alliterative, I know.

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10. So early people had leaders (people who society agreed had power over others) but not dominance(having power over others). They also had symbols denoting anthropomorphized concepts, but not gods(anthropomorphized concepts).

    Am I getting this right?

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11. Paleolithic peoples would never have said that they have religion, because religion was not a concept until the 19th century. https://www.youtube.com/watch?v=c5KHDR8jdbA&list=PLHsXddZFR9APxofjH_4ug_SuVqhkCjLFa&index=3 But we have had religion in the Durkheimian sense of a shared understanding of the separation between the sacred and the profane since the upper-paleolithic. In that sense, paleolithic peoples were not as religious as modern people. But they were not irreligious either. https://link.springer.com/article/10.1007/s12110-016-9260-0#Sec11

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