As those of you who’ve participated in my Bring Laws & Gods reading circle know, I’ve had to spend quite a bit of time working out where I thought Roman law would have gone had the Romans had an industrial revolution. Now their law was pretty sophisticated, as law goes. In many ways, it was better than than what came after it — especially with respect to inheritance, divorce and the status of women. That said — as one of my Liberty Fund colleagues pointed out with some alacrity in a discussion on just this point at a conference in Switzerland earlier this year — one of the reasons Romans could treat citizen women so well was because there was a whole class of other people (they’d be slaves, natch), who could be treated like shit. So Roman law forbade rape in marriage (a right English women didn’t get until 1991), but strongly advised a husband who’d just had his wife knock him back to go ‘into the slaves quarters’ or ‘to the Greek Quarter’ (a euphemism for that part of town, well, you know what, nudge nudge, wink wink…). And every Roman jurist we have extant is at pains to explain what those two recommendations means.
The same principle applied to the rule that allowed a man to sell his dependents into slavery. A Roman could never do this to his wife at any period in Roman civilisation (a contrast with the law code of Hammurabi, which allowed a free citizen male to sell any of his dependents into debt slavery), but he could still do it to his children (the outcome was analogous to debt bondage, which we see in developing countries today, you know, those scarifying World Vision pictures of Indian children working in brickworks to pay off their deceased parents’ debts). Julius Caesar abolished debt bondage among pagan Romans (your outstanding debts then died with you after the estate had been settled, as in modern Western law); for some reason Christian Emperor Theodosius brought it back, at the same time as making exposure and abortion illegal. Those changes are probably linked. And it’s probably the first recorded example in history of the economist’s ‘law of unintended consequences’.
At roughly analogous periods in their history, Roman lawyers and Japanese lawyers deviated from the cultural norm of the civilisations before them (Classical Athens for the Romans, Tang Dynasty China for the Japanese), ruling that a woman should always keep her property on marriage, and that her husband should not be able to able to have her stand guarantor for him in a real property transaction. In modern law, this is sometimes known as ‘Wives’ equity‘, and is designed to prevent women from transferring their property away on the basis of love and affection (or duress, as Ulpian pointed out). When it came to marriage, the great Japanese jurist Fujiwara no Fuhito commented that ‘we do not wish the birth of a daughter to occasion the watering of someone else’s garden’. Indeed, it is still a proverb in Hindu India that the birth of a daughter — thanks to the property transfer to her husband on marriage — is a ‘watering of someone else’s garden’. This custom — analogous to coverture marriage — appeared in Hindu and Buddhist India only after the country’s conquest by Islam. Funny, that.
Romans and Japanese alike were anxious to prevent this loss of property and rights, so drafted laws accordingly. Unsurprisingly, the status of women in both Roman and Japanese civilisation was much higher than it was in their cognate civilisations (Classical Athens and Tang China). The Roman jurist Gaius Institutes 1. 144-5 commented [late 1st century AD]:
There seems, on the other hand, to have been no very worthwhile reason why women who have reached the age of maturity should be in guardianship; for the argument which is commonly believed, that because they are scatterbrained they are frequently subject to deception and that it was proper for them to be under guardians’ authority, seems to be specious rather than true. For women of full age deal with their own affairs for themselves, and while in certain instances that guardian interposes his authorisation for form’s sake, he is often compelled by the praetor [magistrate] to give authorisation, even against his wishes.
The Romans fixed this sociocultural problem in the first century BC. The Japanese fixed it in the Nara period. It returned to Europe in horrifying form when a new religious order — a far more sexist one — imposed itself on Roman society. The Japanese, however, were both cannier and nastier than that. All of this looks pretty barbaric but it’s also possible to discern both progress and decline: history, as Mark Twain said, may not repeat but it does rhyme.
A clue, then, as to why Aboriginal society is so degraded in modern Australia can be found in their laws, which do not recognise property law and property rights. We may not like to admit it, but every historical society that has treated women as other than chattels had had a strong system of property law — even when that property was held communally, as in some Native American cultures — and recognised that property rights are antecedent to all other rights. Now we know that applies to both sexes.
For that reason, I urge you all to read this essay by Warlpiri Aboriginal elder Bess Price, reproduced here thanks to Ken Parish at Club Troppo:
My mother and father were born in the desert. They lived their childhood out of contact with whitefellas. They were terrified when they first saw a whitefella. They taught me the Old Law that our people lived by. That Law worked when we were living in tiny family groups taking everything that we needed from the desert. It is Sacred Law. There was strong Law for sacred business. If the sacred Law was broken both men and women could be killed. There was strong Law for who we could marry. Men had the power of life and death over their wives. Young girls were forced into marriage. Men too had no choice in who they married. There was no law for property except that everything must be shared. There was no law for money because we didn’t have any. There was no law for houses, cars, grog, petrol or drugs – we didn’t have any except for bush tobacco which was shared like everything else we had. The only way to punish was physically, by beating or killing the law breaker. They couldn’t be fined, we had no money or wealth to take. They couldn’t be locked up, we had no jails.
Everybody knew what they had to do to make sure that everybody survived. We all knew how to make a living from our country. We lived from day to day. Everybody was taught to fight. We only had our family to defend us. We had no army, no police, no courts. Everybody needed to know how to use a weapon, women and men both learned to fight and knew they would have to do that sometime. We also believe that our Law Man can make magic, they can heal the sick but they can also make people sick and die by magic. That is what all my people believe. We kept the peace by fear of violence and magic.
Now we live in a world ruled by a new law that is not sacred, that doesn’t accept that magic exists. Now we are all equal citizens with human rights. Now we have property, houses, cars, grog, drugs, pornography. Now we live off welfare, other people’s money or we need to get a whitefella education and get a job. We still share everything and this keeps us poor. We can’t say ‘no’ to our family even when we know they are drinkers and gamblers and will waste our money or destroy themselves with it. Now too many of our men still think they have the power of life and death over their wives. My people think all property should be shared and we think whitefellas are just greedy and stingy. We don’t plan for the future, we don’t budget or invest – we share and consume. All this has happened too quickly.
The Bath report on the failure of child protection in the NT tells us that our kids live in a chaotic world where they are at terrible risk. My community of Yuendumu has been torn apart by feuding. These problems show us that government has failed but is also shows us that Aboriginal Law has failed too. Aboriginal organisations have failed as well. Aboriginal politics that focused on the ‘Stolen Generation’ and ‘Deaths in Custody’ also failed. Aboriginal politicians forgot about our women and kids, forgot about the violence on the remote communities, forgot about the problems we are causing for ourselves. We can’t just keep blaming the government without taking our share of the blame. That is the only way we can find our own way out of these problems.
Our old Law worked really well in the old days but it was not about human rights. It was about unconditional loyalty to kin, to family and following the sacred Law. It was about capital and physical punishment. There were wise old people who tried to make sure that there was justice. But they are all dying now. Those like my own parents who were born and grew up in the bush, are all getting very old and passing away. But even they could not stop the grog and the violence that came from the new world we were living in. There is nothing in our old Law that helps us deal with grog and drugs. All these new things that whitefellas brought in we have no law for. But we still respect our ancestors and we still want to keep our culture. The Two Laws, whitefella and blackfella, are based on opposing principles. My people are confused. If they go the blackfella way they break whitefella law, if they go whitefella way they break blackfella law. Our young men are caught in the middle, they are still initiated into the old Law but they live in a world run by the new law, that’s why they fill up the jails.
Con Vaskalis is right when he says that we don’t have effective leadership. We have wonderful old people who know the old Law but are confused and worried by the new. They are truly wise when they have real authority, when they are in small, family based communities away from towns. They are ignored by the drinkers and the young people who are rushing to take the benefits of the whitefella way without learning whitefella law. Too many don’t know either law now. We have Aboriginal people who speak out all the time but don’t live in the communities and don’t speak an Aboriginal language – who don’t have any idea what life is like for my people. We have Aboriginal people who others call leaders who we know are only looking after their own families, their own interests and not those of the whole community. We have very good people who want to do the right thing but are too worried and confused and who are continually grieving over the deaths of their loved ones. We have white radicals and NGO’s with their own agendas who want to use us like political footballs. When we women talk out about our problems they either ignore us or tell the world that we are liars and trouble makers. Some of my people who carry on about human rights and attack governments every time they try to do anything new run away from their own kin and communities when there is trouble. They never find it hard to find a gullible human rights lawyer to back them up in public but they don’t do anything in their own communities to make things better for their own people.
Too many lawyers are only interested in the rights of the perpetrators. Because they are worried about racism and they don’t like a particular government they will do what ever they can to make sure that murderers and rapists and child abusers are protected from the new law. They will only advocate acknowledging traditional law when they think it will work better for their clients, the perpetrators. But they don’t know how the old Law worked. They never worry about the victims who are also Aboriginal and victims of racism, who have had their basic human rights ignored and trampled on by members of their own communities, their own families. It seems to us that human rights lawyers only worry about the black victims when the perpetrators are white. It is not somehow more acceptable to be raped, abused and murdered when the one doing it to you has the same colour skin.
Our problem is that we want to keep our culture. We want to respect our ancestors and their Law but we also want to be equal citizens and we want human rights. We can’t do that without changing our Law. But we need to change it ourselves, others can’t do that for us. Only we can solve our own problems and we will do it in our own way. But we really need the support of governments and our fellow citizens. You need to listen to the voices that are usually drowned out by the strong, the noisy and the powerful. You need to find a way to listen to those who don’t speak English, who are the most marginalised and victimised in our own communities. You need to listen to our own women and young people, the ones who don’t have a voice under the old Law. If you really want us to have human rights then you have to find ways to protect the victims of black crime as well as white crime.
And yes, I’ve tipped over the blockquote jar again, but I think it’s worth it, in spades. Oh yes, and the other thinker who pointed out how law — property law — may evolve, and why it mattered? FA Hayek. I’d start with The Constitution of Liberty and then move onto Law, Legislation and Liberty (in three volumes), if you find the stuff in this post interesting.