Law Evolves

By skepticlawyer

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.

It really is ‘life, liberty and property’, at least for 50% of the world’s population.

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.

25 Comments

  1. Patrick
    Posted October 30, 2010 at 5:31 am | Permalink

    Thanks SL! I just realised that I should have said ‘nth’ – I did wonder about enieme but I thought it looked ok 🙁

    It wasn’t wordpress that stripped out the ‘diacritique’ marks it was me who forgot them because I thought enieme was an English word.

    In effect it does mean umpteenth, often, too.

  2. Peter Patton
    Posted October 30, 2010 at 9:57 am | Permalink

    Jim

    The views of the old left are deeply embedded in Oz Legend.

    Do you think this expalins why Australian university humanities academics – particularly historians – have been particularly susceptible to postmodernism/structuralism since the collapse of Communism. As an undergrad assigned all this postist stuff, all I could see was souped-up Marxism translated into pidgin French.

    If you go through Australa’s major universities History websites, you notice an incredible number of the tenured Professors were full-on card carrying Communists, who now bang on, not about the proles, but ‘the Other’ in pidgin French.

  3. Posted October 30, 2010 at 10:46 am | Permalink

    [email protected] “all I could see was souped-up Marxism translated into pidgin French.”

    Ha ha. And the soup had all the vitaminy goodness boiled out of it at high pressure.

    The leftmost teacher at my school taught economics, at uni it was biochem. I was a little younger than good ol’ Albert Langer, but his daughter’s conversations were half left, half quantum mechanics. Maybe the hard-left schools are in the hard-numerate schools.

    Lefty thought is being cut by a thousand little deaths at the hands of these post-onanists.

  4. Peter Patton
    Posted October 30, 2010 at 10:52 am | Permalink

    Sitting through those pidgin French classes all I could think was “what about the workers”!?

  5. Posted October 30, 2010 at 11:05 am | Permalink

    [email protected] *chuckle*

  6. Peter Patton
    Posted October 30, 2010 at 1:23 pm | Permalink

    db

    Maybe the hard-left schools are in the hard-numerate schools.

    I think you might be right there. I encountered all this while I was simultaneously studying for a Science degree. I was constantly objecting to just pages and pages of empirical ‘arguments’ which were always mere assertions. Now we know that a logical argument can be made even if the premises are false, which in the case of postist discourse is ubiquitous because the premises are always empirical assertions, which are never validated empirically.

    Invariably, once you demand the debate stop until we assess the empirical validity of the premises, the entire argument collapses. But humanities types very rarely have any quantitative or experimental science training, and are thus both easily baffled with ‘sciency-sounding’ bullshit and less aware of syllogistic shenanigans.

    I don’t know if you have encountered this Australian leftist psychiatrist dude on the blogs, but he is the most refreshing rational leftist voice I have heard in Australia for a long time. Of course he is a marxist, which one ultimately must be some breed of in order to be a leftist of any substance. Liberating ‘the Other’ just doesn’t cut it as a political program.

    Here he reviews a less perspicacious leftist voice.

    http://www.abc.net.au/unleashed/40558.html

  7. Patrick
    Posted October 30, 2010 at 5:35 pm | Permalink

    Leftists are not necessarily stupid or lobotomised, even if the correlation does seem amazingly high at times. Norm Geras amazes me sometimes with the rationality of his thought!

    Unfortunately, PP, that review of Quiggy (less perspicacious! indeed) suffers from the fact that to my knowledge Quiggin has only ever demolished a strawman, and I can only believe that the demolitions Tad cites with such approval are similarly irrelevant.

    Actually Quiggin shits me to tears.

  8. PAUL WALTER
    Posted October 30, 2010 at 6:12 pm | Permalink

    Patrick, perhaps he’d have the same reaction to you, were he ever gifted the opportunity of meeting you?
    I know who, of the pair of you, I’d rather spend time in with, on the evidence so far.

  9. Posted October 30, 2010 at 6:20 pm | Permalink

    The reviewer also appears to ‘believe’ (and I use that word advisedly) in the labour theory of value.

    I believe the appropriate response is ‘you fail economics forever’:

    http://tvtropes.org/pmwiki/pmwiki.php/Main/YouFailEconomicsForever

    [Caution, tv tropes link].

  10. Posted October 30, 2010 at 11:42 pm | Permalink

    [email protected], [email protected] Quiggin has his moments, but not very often. For example, he argued that privatisation was bad because the public sector had a lower cost of capital due to a lower risk vulnerability.

    That is one of those where does one start? pieces of nonsense. (On that argument, North Korea should work just peachy, for example.)

    As for the Efficient Market Hypothesis, has he “refuted” the strong version or the weak version? Or any actual version?

    Regarding the reviewer, there is something that has failed much more spectacularly than neoliberalism, which is command economics of all varieties.

    And, refresh our memory, which developed economy sailed through the GFC and Great Recession most effectively? That would be the Australian economy. And what has it had over 25 years of? “Neoliberal” reforms. Of the type Quiggin repeatedly criticised.

    Even the US managed the two longest continuous expansions in its economic history prior to the recent downturn. If the Great Depression did not finish off capitalism, the present pallid re-run of it is not going to. However many similar policy stupidities officials may be engaging in.

  11. Posted October 31, 2010 at 6:18 am | Permalink

    [email protected] In Australian historiography, we used to distinguish between the old and new left. In my own personal environment, both Russell Ward and Professor Ron Nehl (Economic History) could be classified as old left.

    Both were concerned with questions of class. Russell was less theoretical; his views affected his attitudes and questions rather than his theoretical approach. Ron was consciously a marxist. I found some of his work accessible, interesting and informative. His analysis of what he called the middling classes fitted with conclusions I was drawing on the rise of country populism and the country movements,

    The new left were especially strong among younger historians and in disciplines such sociology and politics. They were the ones who most influenced by European, especially French, writers. I tried to understand their arguments because I was interested in theory, but found them indigestible. Those young ones are indeed now getting old in the tooth.

    One of the personal difficulties I have in understanding things such as post-modernism or structuralism, beyond my own difficulty in understanding the terms themselves, lies in understanding the difference between cause and effect or symptom.

    If we compare history and economics as academic disciplines, both have suffered the same fragmentation and collapse in relevance, yet left ideas have hardly dominated economics in the way the new left came to dominate Australian historiography.

    In Australian history, the old idea of history as a unified field was actually shared by the old left, by the then largely dominant central school and by the right. The year long History I course at UNE provided an overview of world history starting in prehistoric times (this early start was then unusual); the aim was to provide a general framework, as well as an introduction to technique.

    The rise of the isms, the fragmentation of courses, the assertion that all forms of history were of equal value, was aided by new left views, but was also a reflection of broader social change.

    The process had its advantages because it meant that certain topics that had been excluded or dealt with in a limited way were brought to centre stage . It also meant that much history was now taught in slices, lacking context.

    The process compounds. There is a long fashion chain in the writing of history. The changing approaches to the discipline and especially topics considered to be important fed back into the schools, then affected later stage studies and research. The changing composition of theses and articles then affected books. In turn, this affected the availability of course material, thus further changing what was taught. You can’t teach something if the course material isn’t there.

    Sorry for the ramble. I am conscious of these things because of the way that my own interests in history, economics and management have shifted from main-stream to outer field as both society and disciplines have shifted around them. I am also fascinated by the whole process because of what it tells us about the way Australians (and others) think, how and why.

  12. Posted October 31, 2010 at 8:46 am | Permalink

    [email protected] In Economics, macro-economics is in a bad way. But it has always been a pretty unsatisfactory intellectual arena. (My favourite comment remains Milton Friedman’s observation that monetary economics in two centuries has merely moved one derivation beyond David Hume — now we also pay attention to rates of changes.) Not helped by the decline of economic history in academe. Ironic, since the Nobel Prize in Economics has ticked economic history (Fogel, North) and so many of the other prizes are for intertemporal analysis of various forms.

    Not sure micro-economics has suffered anywhere near the same problems, however.

  13. Posted October 31, 2010 at 1:07 pm | Permalink

    [email protected] I have to be careful in responding because while I practiced as an economist for a number of years, those now in the discipline could argue with justice that I am now out of touch.

    My views of economics as a discipline were formed when I first studied it all those years ago. My views about the decline of economics were formed by my experiences with it since, including time recuting economists for Treasury.

    When I started, economics claimed to be a science in the sense that it used scientific method. It was part of the humanities because it addressed part of human society; values, history and economic history were all importan for that reason. A clear distinction was made between economics as a set of professional techniques and the purpose for which those techniques were applied. Economics was a rigorous way of thinking. Part of its value lay in the way that that thought could be applied in different environments and to different problems.

    The idea of the allocation of scarce resources to alternative ends was central to economics, Models existed, but their purpose was to help explain certain types of behaviour. Because that behaviour was human behaviour, because human behaviour was complex, there was a strong qualitative element; that was part of the reason history was important. At the same time, and this fits with economics as a science, all models had to be refutable.

    I have stong opinions about the decline of economics, By the late seventies I had given up reading the academic journals because I found the minutae on specific
    models difficult to understand and not especially useful in a policy sense. By then, the decline in the number of economics honours students (part of a broader pattern) was having profound effects on Treasury recruitement.

    There have been major, even profound, advances of economic theory, micro and macro, since the seventies. What has, I think, been lost is the coherence of the discipline, its influence as a way of thinking and questioning.

    Speaking personally, I would question whether micro has done better than macro in other than a purely technical sense. By this, I mean simply the generation of very specific technical approaches on specific questions.

    Heilbroner argued that all economics and economics reflected social conditions at the time. By 1999, he was, I think, deeply pessimistic about the possible survival of economics as anything approaching a unified discipline, about its relevance. I think that he is wrong.

    If we think of economics as models and theories, then because economics is embedded in human society, it logically follows that it must change as that society changes. If we think of economics as a way of thought, then it can apply independent of society change.

    All the macro economists, Keynes and Friedman included, responded to conditions at the time. Each saw key elements of their thinking invalidated, but each left something behind. So we have the thinking as it applies in the moving present, then the elements that will apply in the future present.

    Hope that this makes some sense.

  14. Posted October 31, 2010 at 2:11 pm | Permalink

    [email protected] That is a thoughtful and useful response, ta.

    There is much in what you say, though the obsession with modeling is more a macro phenomena. I find micro economics very helpful in thinking analytically about social matters. Including medieval history. Macro, not so much.

    [email protected], [email protected] To add my 59, a very nice summary of the efficient market hypothesis is here:

    the claim is not that the market is always right but that we don’t have a better way of determining value or allocating capital.

    EMH is badly named: it should be something like the ‘all available information hypothesis’. Just as ‘rational expectations’ should be ‘consistent expectations’.

  15. Posted October 31, 2010 at 3:23 pm | Permalink

    [email protected] Thanks. Agree re, your point on social matters. Not sure about modelling in micro, but that gets us into a whole new argument on public policy! Enough.

  16. Peter Patton
    Posted October 31, 2010 at 3:50 pm | Permalink

    Just wanna say I was not endorsing that reviewer, merely commenting on the clarity of his leftyness, even if – as SL correctly notes – the labor theory of value is bunk. My point is that any political program which claims to be of the left which completely ignores Marx’ theories of social structures is destined to incoherence, as we see in the current university.

    The theses of the Kwiggenistas reveal a Stalinist enthusiasm for rule by technocrat. This idea that the history of the world since 1930 or so can be reduced to rule by one of two economists is truly scary, because it reveals a policy mindset attracted by oligarchy of technocrats – and only mathematical economists at that! To these chaps – and they always chaps – I say ‘get ye to a History tutor’!

    To the extent these people claim to be of the left once more I ask “what about the workers”!? 😉

  17. Peter Patton
    Posted October 31, 2010 at 3:51 pm | Permalink

    Lorenzo

    Oh, I agree. Talk about flaying “neoliberalism” straw by straw! 😉

  18. Peter Patton
    Posted October 31, 2010 at 4:12 pm | Permalink

    And of the state’s risk-free rate – zero equity premium – they need to address [at least] three realities:

    1. The difference between the cost of capital of the US, Australian, Zimbabwean, Nigerian, and Burmese governments.

    2. The difference between the cost of capital of Microsoft, JP Morgan, GE, BT, Panama, Pakistan, and so on.

    3. If the US [or UK, Canadian, German] government were responsible for all the investment, production, and distribution decisions from 1970 to 2010, which produced Google, Microsoft, and so on, what would the deficit figures look like with eleventy four companies flogging the Leyland P-76 or Betamax. ;).

    Me thinks that if these low cost of capital sovereigns took over the Business Development departments of the nation’s corporations, we’d see that “risk free” cost of capital leap into the high double and triple figures in no time. 😉

  19. Posted November 1, 2010 at 9:20 am | Permalink

    [email protected] If you have any responses my post @48, I would be most interested.

  20. Posted November 1, 2010 at 2:49 pm | Permalink

    Hi [email protected] I agree with a fair bit of what you say, but not always the conclusions you draw. However, I need to think further – I have been busy. Will respond direct with a comment on your post.

  21. Posted November 1, 2010 at 4:24 pm | Permalink

    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.

    This is an excellent point. But how does law figure in with the actual law as enforced by the state? I suppose it’s analogous to Biblical law or ethics?

    It was worth the long quote.

  22. Henry2
    Posted November 2, 2010 at 4:30 pm | Permalink

    Gday All,

    SL or LE you can either take this as a comment on this post or direct it as a new post all together. I have a situation that I need to get off my chest.

    My mother-in-law is a 95 year old Aboriginal woman. She is as reasonably sound of body and mind as anybody I know of that age, though her eyesight is dimming.

    She still lives in her own home and until 4 or 5 years ago she had a lodger, her nephew, who she cared for as well.

    My wife worked in Aboriginal aged care until 3 years ago and had a duty of care of her mother as part of her employment. She also visited her frequently simply as a daughter. In every role she allowed her mother to have control of her life, assisting her or guiding her when need be, but never assuming control.

    When my wife left health to concentrate more on her other career she moved away to where the work was. She didnt have the day to day contact with her mother that she had had previously, but Mum had many visitors on a regular basis and was never ignored or neglected.

    A year or so ago my youngest sister-in-law left her work to come and live with Mum ostensibly to care for her.

    Since then all casual visitors have been deterred. In our own case I left my daughters with their grandmother for an hour while I went home to collect some clothes. In that time one of my daughters was assaulted by this woman.

    My wife chose to take the case to court and she was given a suspended sentence. My wife has been ostracised by members of her family for taking this action. Theirs is an attitude of lets keep this in the family.

    Its fairly obvious that the ‘carer’ is the one being cared for. A month or so ago another sister-in-law witnessed the ‘carer’ bawling out their mother at 5 am because she couldnt find her jumper. The jumper was subsequently found folded at the end of the bed. For reasons I wont go into this witness has a duty to report such conduct but chose not to do so, because she knew that there was still a month to go on the suspended sentence.

    The family that live away usually try to control what Mum does rather than assist her to control her own life and that is definately the attitude of the carer including recently making sure Mum made a new will.

    To relate all this to the post, traditional law does specify what should happen in a case such as this. The woman in question would have a very minor position in the family group being middle-aged, unmarried and childless. Her conduct would be mentioned before the group in ceremony and she would be flogged with a waddy by each of the family members. Of course, if this were to happen she would be the first to run to the legal system to get protection from the ‘abuse’.

    We are now faced with a situation where an valued elder is being isolated and probably abused by her own child and yet there is no way to protect her without fracturing the family that she holds dear.

    This is but one more story in the continuing saga of Aboriginal law.

  23. Posted November 3, 2010 at 10:29 am | Permalink

    [email protected], what a sad story.

    Speaking very tentatively, one of the problems is that a rule or law that works in one context may cease to work in another. A second problem is the way that overlapping laws or systems can conflict.

    Last year I worked with an organisation with a lot of Aboriginal staff. I used to gather with other smokers outside, nearly all Aboriginal. I heard of a fair number of cases of the type you are talking about. The younger Aboriginal people I talked to were quite frustrated; they know their communities, but are caught in a variety of pressures.

    At one point, my Aboriginal mentee put part of the problem this way. We know our culture has to change, but we want to drive the change.

    I know that this comment won’t help much. I really just wanted to say that you were in my thoughts.

  24. Posted November 3, 2010 at 1:03 pm | Permalink

    [email protected] I want to echo [email protected]

    Rules (legal, moral, etc) exist to limit or stop bad behaviour. As LE points out, there are limits to law. Where the ethos of a community is changing from one set of rules to another there is, sadly, a lot of capacity for abuse that falls between the lack of acceptance of what rules apply and how.

  25. W McKay
    Posted November 3, 2010 at 5:26 pm | Permalink

    I would be wary of thinking that aboriginal law of one family or tribe reflected the law for other families or tribes.

    Speaking to the older generation aboriginals over the years they often state that the traditional law varies widely by tribe and often family in the tribe.

    This interesting discussion led me to recall a conversation I had with an aboriginal drover who I first met when he offered me a cuppa when I was riding to school. He an older member of the wiradjuri stated some tools were lent not given and penalty was expected for those who did not honor the law.

    Another man from the carpentaria stated that the requirement to share only held for those who respected the family elders. He was working with aboriginal youth and was dismayed that they did not understand the importance of study and learning.

    He stated that the elders of his family were not respected for their age but their accurate recall of stories, law and country. Thus young people could be elders in his family.

    Many inconsistencies exist between the reports of early anthropologists of aboriginal law and tribal areas. Some aboriginals have stated these differences most likely reflected family and tribal differences not incorrect reporting.

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