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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Join the conversation! There are now 21 comments on this chapter's page 58. Natural Regulation: Norms and Justice. 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.

    • An addendum: On page 55 of my copy of Steven Pinker’s The Better Angels of Our Nature there is a chart titled “Homicide rates in the least violent nonstate societies compared to state societies.” For Canadian Intuit (i.e., Eskimos) the rate was around 100 homicides per year per 100,000 people. For South African !Kung (I.e., Bushmen) the rate was around 40, and for the famously nonviolent Malaysian Semai it was around 30. In contrast, the average for the 10 largest American cities in the high-crime 1990s was also around 30, and for Western Europe in the same time period it was around 2. Band-level societies were by no means free of interpersonal conflict!

  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…


        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: 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.

  5. I’ve given this whole issue some thought over the last day.

    How *can* anthropology influence our understanding of the writing of the US Constitution? Because I’m neither a scholar of the Constitution nor an anthropologist, I have to think on general principles based on a moderately thorough lay understanding of biological evolution, history and anthropology, and a pretty good professional understanding of software development and economics.

    Notice that I say “can” above, not “did”. I’m talking here not about the specific answers, but about scope, about limits, about what *kind* of answers I can expect.

    It is possible Nathan’s anthropology might tell us something surprising aboutthe social mechanisms at play in the writing of the Constitution, but the possibility seems remote. There are so many historical contingencies embedded in the social (and political, economic, and ideological) circumstances around the Constitution that I don’t think the application of general anthropological principles can give us much more of an answer to “What were they thinking?” than, “The same thing we think about every day, Pinky. Try to find ways of getting along better.” As a Marxist, I would add, “And keep the workers working and not coming after us with torches and pitchforks.”

    I guess my real question is this: what about the Constitution demands that we try to peer through our puny telescopes at human society ten thousand years ago or more to search for insight? Is something otherwise inexplicable? Something that we think we know but is profoundly wrong? Something that opens a previously unnoticed door into human society?

    Nathan, you still might surprise me. You’re twice as smart as me, and ten times the scholar. But however many pages you are into this introduction, you have not yet succeeded.

    • Holy cow! If ever I feel myself flagging, wondering if it’s worth it, I am going to come back and re-read this comment. Because I think it’s not only doable, I think it’s important.

      This anthro stuff is setting the stage for the governments that will be arising, and their subsequent evolutions (both punctuated and gradual). Historical developments and oddities of law, institutions, religion, warfare, economics—even geography—are going to shape new mindsets, newer mindsets, and weird offshoots as we humans come to terms with the realities we find ourselves living in… to the point where this paleolithic world must seem utterly foreign and incompatible with our world. And yet we’ll still have much the same brains and biology, drives and instincts. Sometimes the disconnects between reality and narrative and biology will cause big problems. Sometimes it’ll create new solutions. All of this will froth and bubble across the history of government. And the particular time and place(s) of the Framers will be a particularly unique bubble dancing on the foam of history. A bubble that, for better or worse, continues to powerfully affect our present-day foam of institutions and ideas.

      Will it be surprising or insightful? I hope so. Though the older I get, the larger the gaps in my understanding seem to be, and for all I know it’ll strike some as painfully obvious. In which case: Dammit!

      Will it be convincing? I’ll try. I hope my evidence and reasoning will flow smoothly. But again, I’m nervous about that.

      Will it be something otherwise inexplicable? Nope. But I think my explanation would be incomplete and to some extent inaccurate without it.

      Will it show that something we think we know is profoundly wrong? Not so much that as what I said on this page.

      Will it open a previously unnoticed door into human society? God, no! My insight (if it is such) is a very tiny one, trying to find a fit with much more significant insights by much smarter people.

      You all have inspired me. Not to prove any of you wrong, but to prove this adventure is really worth it.

  6. Well then. What can I do but stay? You’re in this for the long haul, and if you expect me to start with you 10,000 years ago, I’ll want to see everything from Hammurabi to the Magna Carta and English common law.

    I will give you some unasked for advice. Use it or disregard it as you please: I am not emotionally invested in you doing things my way, and I’ll hang in regardless.

    1) Find a way to include the footnotes. You might just want to have a list at the end showing panel and reference. I want to read all of your sources. I probably won’t actually read all your sources, but I want to.

    2) Try to give some indication as to criticism of the theories that you’re using, and perhaps mention alternative theories. I know this isn’t a doctoral dissertation (perhaps it should be) but you are attempting something bigger than just sharing your professional expertise.

    3) Don’t try to shoehorn stuff into your theory. c.f. Bogosian supra.

  7. Hamelin has good suggestions. But I would go further. You shouldn’t be trying to give us the entire history of mankind, or the entire psychology of the human species. You are just giving people more things to disagree with and more stuff to say {{citation needed}} about.

    You need to identify the core principles that are relevant here. If you came up those principles on your own, then explain the reasoning. If you adapted them from someone else’s work, then give them credit, cite your sources, and summarize their reasoning. Then illustrate each principle with one or two verifiable examples. Then explain how those principles apply to the American constitution.

    Stories are fun. But they are time consuming. Your work is fun. But I want to see the end while we are all still alive.

      • Thanks for jinxing me, you guys. I went to bed Saturday feeling a bit poorly. I got out of bed for real on Tuesday, after one hell of a flu. At some points, if I’d had the strength to do it, I’d have heartily welcomed Death and offered him a drink.

        I’m still coughing up festive Christmas colors. Holiday entertainment for the whole family, yes… but NOT fair. Because I am the ONLY person in my whole family who even got a flu shot this year. Bah!

        (I do not go so far as to add “humbug,” but no jury of my peers would blame me if I did.)

        Christmas is tomorrow. Drawing resumes whatever day comes next. Merry Christmas!

  8. jb says

    Seeing references to “10,000 years ago” in the comments reminded me of a book that might be relevant here: The 10,000 Year Explosion, by Gregory Cochran and Henry Harpending. The authors make the very interesting claim that, contrary to conventional wisdom, human beings today are not the same as they were 10,000 years ago, because advanced culture, rather than making genetic evolution unnecessary, has actually caused the human genome to evolve much faster than it did before. Although it was a novel idea when the book first came out, the recent acceleration of our genetic evolution is an established fact at this point — the best known example is lactose tolerance, but there is plenty of other evidence. The consequences of this acceleration are less clear, and some are politically controversial (i.e., people in different parts of the globe might have evolved in different directions in response to different selective pressures). Much of the book is a bit speculative. Still, it’s informed speculation about questions that matter, and despite the fact that it was published in 2010 I think the book is still very much worth reading.

  9. B.J. says

    It doesn’t sound like heaven to me – but maybe that’s my modern self speaking. Or maybe I’m a rent-seeking asshole, of course :)

    Anyway, despite such loose talk, one interesting thing about community-based punishment is that it seems to help the reconciliation process. Even in the time of Little Justice, there’s still a sense of the value of retribution and retaliation – because as you hinted at, such punishments reinforce bonds and social norms, and there’s an understanding that everyone was treated fairly and the offender is part of the community again.

    Of course (spoiler alert) this only works if the offender sees themselves as part of the ostracizing community. Which is, I think, part of where you’re going with this.

  10. Tomn says

    The whole idea of reconciliation through silliness brings to mind this excerpt from “The Mauritius Command,” a novel set during the Napoleonic Wars:

    “The French system, with their new French code, is very well on paper,” observed Farquhar, “very well for a parcel of logical automata; but it quite overlooks the illogical, I might say almost supra-logical and poetic side of human nature. Our law, in its wisdom, has preserved much of this, and it is particularly remarkable in the customary tenure of land, and in petty serjeanty. Allow me to give you an example: in the manors of East and West Enbourne, in Berkshire, a widow shall have her free-bench – her sedes libera, or in barbarous law-Latin her francus bancus—in all her late husband’s copyhold lands dum sola et casta fuerit; but if she be detected in amorous conversation with a person of the opposite sex – if she grant the last favours—she loses all, unless she appears in the next manor-court, riding backwards on a black ram, and reciting the follow words:

    Here I am
    Riding on a black ram
    Like a whore as I am;
    And for my crinkum-crankum
    Have lost my binkum-bankum;
    And for my tail’s game
    Am brought to this worldly shame.
    Therefore good Mr. Steward let me have my lands again.

    My uncle owns one of these manors and I have attended the court. I cannot adequately describe the merriment, the amiable confusion of the personable young widow, the flood of rustic wit, and – which is my real point – the universal, contended accceptance of her reinstatement, which I attribute largely to the power of poetry.”

    The novel is fictional, but the legal practice is apparently real. Whether the social effects were as described, I couldn’t say. Very interesting in that it uses the principle of silliness for reconciliation, though.

    • OMG, that’s one of my favorite scenes in the novels. AND it’s one I’m planning to reference later in this digression! Perhaps my foreshadowing is too heavy-handed? Whatever… how freaking awesome that I called this to mind! You totally made my day.

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