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.
74 Comments
I’m so glad that you linked to that Club Troppo post, SL. I thought it was fantastic. Price doesn’t idealise the traditional laws, although she does acknowledge the positive aspects to them. This is a very harsh country and I suspect that Aboriginal people had to follow strict societal laws or else they’d die. But traditional Aboriginal law does not mesh with mainstream settler law and culture in many aspects, and in some instances, there is a really fundamental clash where traditional law is illegal under our law, as I have discussed.
Property rights are fundamental to human freedom. If you cannot own yourself, and you cannot own things, how can you control your own destiny?
I’m starting to wonder if your daughter has converted you to libertarianism.
This appears to not have been the case in New Zealand. Indigenous Maori law vested property ownership in the iwi (tribe) not the individual, yet the status of women was no less than that of men.
This article, from the University of Waikato Law Review (a refereed journal), on the status of women finds some corroboration here, although I have not done a more substantial search. But anyway, the author writes:
This culture was very different from the indigenous Australian one that Bess Price describes, but it’s clear that in New Zealand as in Australia, imposition of Western legal and cultural norms was terribly destructive.
Does anyone know the equivalent situation regarding indigenous North American people?
Evidence? The advent of property rights seems to be necessary, and in some societies sufficient, to enable the practice of slavery. To talk of “owning yourself” opens the door to the possibility of somebody else getting to own you instead: foreclosing perhaps on your person when you are unable to pay a debt.
Yes it was worth tipping over the blockquotes jar SL. People should read that and:
De Soto, Hernando and Francis Cheneval. Swiss Human Rights Book Volume 1: Realizing Property Rights, 2006. ISBN 978-3-907625-25-5
Wow, that’s amazingly irrelevant illogical and untrue. Keep it up!
What possibilities, dare I ask, are opened up by talk of not owning yourself?
The Maori, Fijians, Tahitians, Hawai’ians (interesting how many of the cultures that combine group property rights with high status for women are South Pacific) are real statistical outliers. A similar point can be made about some (but not all) Native American cultures, notably the Iroquois and Apache. That said, they did have a strong sense of their boundaries, though, and who owned what — something that the colonials discovered when they tried to take it off them. There’s a reason the Maori got a treaty in 1840 (Waitangi). The Brits really struggled to defeat the combined iwi in battle.
From time to time, those of us who play New Zealand in rugby are reminded of this salient historical fact.
[Also, I accidentally hit 'publish' on an earlier draft of this piece, which Mike has quoted in good faith; I have substituted the later piece, which doesn't mention the Maori and other South Pacific peoples, but does mention the Native Americans. Any confusion created, therefore, is wholly to do with my fumble fingers. I do maintain, however, that there was a very considerable difference between Maori or Fijian society, with their complex systems of status hierarchies (the Arioi, for example), conception of borders, agriculture and Australian Aboriginal societies].
Very interesting post, SL. I especially liked the comparative elements. I would be careful, though, about property rights and the Aborigines. It’s a bit too like the old Marxist arguments put forward by people like Russell Ward. Property rights did exist in Aboriginal Australia, although they were collective and over-lapping.
I must admit I wouldn’t have pegged Russell Ward as a Marxist (mind you, the only book of his I’ve read is The Australian Legend, so maybe he was Marxist elsewhere), so I’ve learned something new today!
Jacques, naw, I’ve always loved property law ever since I first saw it (love at first sight). And I saw that this was where the power in our society comes from.
I don’t deny that the government may severely curtail our property rights or expropriate them from time to time, but it does have to be careful when doing so, and have good reasons for doing so.
I’m not big on communal property rights simply because I don’t like teams.
Mike M
One thing I have found in my studies is that Law academics in general do not make very good historians, economists, anthropologists, psychologists and so on. It is true that increasingly, Law academics also have substantial training in these other disciplines, but so long as their work is being published in Law journals, I start from the presumption of scepticism.
The reason has nothing to do with the abilities of Law school academics. We all know that the cream of the academic crop nowadays heads to Law school. But Law schools’ scholarly competitive advantage is well, the law!
The most egregious example is the scholarly treatment of European colonization that comes out of Law schools. The article you quote is typical:
No one denies that structural gender inequality was far more rife than even today in 1840. Nevertheless, even my training in History has indelibly etched “go to the orignal sources”. The Treaty of Waitangi itself provides evidence of just one of a long list of just soooo wrongs.
The Treaty’s first paragraph starts:
So much for female leaders beyond the imagination of the evil whitey.
I make no claims to great knowledge of 19th British culture, but I do recall a phrase commonly used to describe the age of decorum, modesty, and prudishness as the, er, Victorian age. A period so defined by a woman, that another future female leader bluntly explained – 140 years later – she sought to return Britain to that golden Victorian age.
This is a problem with far too many legal academics when they stray too far oft-piste; they forget that people in the past did not act in cognizance of culture, values, or even concepts of the post-modern law academic. Because they are either forget or ignore this, they inevitably retroject modern ideological and political priorities so seamlessly and so inappropriately.
A corollary is just because political machinations, and ideological skirmishes, have produced the modern-day UN one-size-fits-all “Indigenous” peoples, does not mean you can elide the crucial independent realities of all peoples scattered across the globe in centuries past.
In other words stop collapsing the Tasmanian Aborigines, Murray Islanders, Inuit, Maori, Apache, Inca as if it they formed one cohesive society and polity, whose unequal treatment by the Europeans was illegal by the Europeans’ own law, and therefore amenable to rectification by modern day lawyers.
This of course also demands more instruction of the discipline of History to realize that even the notion of “Europeans” is unhelpful wrt these issues. A 16/18/19th century Spain was not a 16/17/18/19th century Britain/France/Holland, etc.
So with all due respect to the “peer-reviewed” law graduate above, the article does not provide a particularly helpful response to either Bessie Price or SL’s points about the virtues of private property rights, and the role their absence plays in modern day challenges for Aboriginal communities.
Actually, the advent of property rights is not only necessary, but fundamental to the creation of democracy, which becomes the best sword and shield against slavery. For a glimpse of the grim reality of the absence of private property rights see Bessie above.
Peter, all this confusion has been brought about thanks to me hitting the ‘publish’ button on the wrong draft. I am truly terrible with technology (you may not believe this, but it’s true; were it not for Jacques and DEM, this kind of screw-up would happen far more often).
The point I was trying to make was that law evolves over time, that it can go backwards too, that it can have very different social effects in different cultures, but that there is a very strong link between property law (use, alienate, subdivide, purchase etc) and prosperity, and that in societies where women can own property (and make use of it, which is Gaius’ point), that prosperity extends to women.
I know it is deeply unfashionable these days to say that one culture is better than another, but I’m sorry, I rather like the rule of law. It is a bit bloody difficult to have any sort of society without it, and apart from her excellent points about property, I think Price’s piece is very good because it gives a snapshot of what the ‘rule of law’ looked like in a very, very different society, without — as LE points out above — any ‘dress ups’ for a modern audience. I don’t doubt that Aboriginal tribal law worked. It must have — after all, these people survived in an incredibly harsh and inhospitable environment. But I don’t think you can say they thrived, and — in these days of plenty — it would be nice if they could.
SL
OK. But I think my post shows that I certainly was not confused by your post. At least, I think my post is at one with yours. If not. Please explain!
THE key diamond in Price’s piece is that she is a real live breathing Aborigine telling us what her community’s life is like right at this very minute, which involves the simultaneous contextualizing of this present reality within the historical path that led here.
This is the crucial feature of these debates for me. THE NOW.
My job is to manufacture entirely unrelated screw-ups.
The status of women must have done a cultural cross over because women in New Zealand today are formidable beings. New Zealand was also the first nation to give women the vote.
I recently finished reading “The Spartacus War”. According to it there was about 5 million people in Italy in 70BC and 20% of them were slaves. The slave and master classes seem to have lived in mortal fear of each other. If the Romans had undergone an industrial revolution I wonder if this economic advance would have been enough to turn the tide against slavery. I suspect it was a major factor in leading to abolition within the British Empire but I wonder if this alone would have been sufficient. Within Roman culture (as well as Celtic, Thracian, Germanic etc) there seems to have been a real love of fighting and cruelty so I’m not too sure.
“status of women” not “stays of women”
[ADMIN: FIXED!]
p.s. Whilst our culture isn’t so into cruelty the basic interest isn’t buried too deep. Recently I attended the Ben Hur Spectacular at Homebush stadium (they called it Romebush stadium). The audience was massive and was divided in two with half given red flags to wave and the other given white flags to wave. When it came to the gladiator part of the show the gladiators were divided into red team and white team. The build up was huge. Then the ringmaster announced that today there would be no killing. The stadium erupted in booing. It was both funny but also quite notable. Within a few minutes we had all learnt to chant like Romans.
The ringmaster pointed to the Roman emperor and his senators and said he thought killing would be good also but one of the senators had ruled against it (a subtle dig at Senator Conroy).
LE@9 said …
Well, your friendly neighborhood lefty would definitely agree with this statement… although probably using a different emphasis and then use it near the start of a very different chain of reasoning.
Well, I suppose there is a compromise position where you get to keep your beautiful legal structures and collective ownership takes over, in an evolutionary way:
%s/owner/custodian/gSuch a simple search and replace would add in a some obligations with any "title" that limit some of the affordances, while creating an ability to deal with an "unfit custodian" (a bit like a destructive parent might be in family law).
So, such an evolutionary change might allow LE’s beloved structures to be applied to the commons (especially things like air or water that can cause trouble crossing national boundaries, as some rivers do), as well as creating some compatibility between the traditional collective ownership of some societies – the custodian of the collectively owned object would have to deal /responsibly/ (including perhaps, not waste collective cash on people who were just going to blow it on gambling or booze).
Any thoughts on the effects of this tweak and it’s applicability?
and btw, matrilineal rather than patrilineal inheritance of goods makes much more sense if you want the assets to follow the same stream as genes with any surety, or at least it would unless you involved lots of DNA tests.
And I’m also wondering if Caligula gave the rights to own and bequeath property to an animal, Incitatus, when he made the horse a senator, given that senators were supposed to have property qualifications – and if as Suetonius suggests the horse was to have been made consul.
With there are starting to be proposals (a draft law almost went to the spanish parliament a while back) for anthropoid apes to have quasi-human rights including the right not to be property, would they also get rights to own property, or perhaps some quasi-property-rights guaranteeing amenity (e.g. of their favorite toy)?
Oh Terje, I rather liked the typo. Although I’ve never quite known what stays are – clips for corsets???
Jacques
That’s no way to speak of ladies.
Terje@18: I think the best argument about the modern ‘decline of violence’ is that by Steven Pinker:
http://www.edge.org/3rd_culture/pinker07/pinker07_index.html
Various videos available on the same point here. The TED ones are well worth watching.
That said, (true confessions time, even if only to yourself) have you ever slowed down to rubberneck at an RTA? Have you ever watched ‘Australia’s Funniest Home Videos’ and laughed really hard? Have you ever watched motorcycle racing just for the smashes? Cheered when Mitchell Johnson felled Graeme Smith with a vicious bouncer? Listened to Vile and Tacky-O destroy someone on air and enjoyed it?
If you haven’t, you’d have been a Stoic in Roman times — they opposed the ludi, along with slavery. They were nice guys. If you have, I’m afraid you’d have probably fit right in (as would most of us, I suspect).
Your secret is safe with me. Nobody will ever hear of your lust for blood.
SL@22: Guess I’d be in with the stoics, hate aus “funniest” home vids – i’ve learnt to close my eyes as soon as I see something like a kid on a trampoline. Laughed hard at a couple of cute ones or animals doing odd things tho. Why some of the camera wielders aren’t blamed for not stopping something dangerous I cannot fathom.
I wonder how low in the animal kingdom laws like anti cock fighting would go, and how high an animal people would pay to see (well – bullfighting!)
A relative of mine who shall remain nameless is a great fan of ‘Funniest Home Vids’, and whenever I was at his place and it was on, I’d take the opportunity to disappear outside onto the verandah for a ciggy or a glass of wine. I just couldn’t bloody watch it, it gave me the creeps.
I kept thinking don’t go there, don’t go there, that’s a really dark and ugly place you’re heading into there. Then I became a lawyer and added tort alert, tort alert, tort about to happen! to my earlier concerns.
SL@25 said “tort alert” ; I’m imagining one of those more famous gladiators suing an armourer for loss of earnings from injury if the weapon or armour was shonky.
I saw a calculation that more folk died in the arena under xtian emperors – don’t know where, nor how well calculated. If accurate, what made supposedly xtian sensibilities so inadequate to stopping the ludi.
And if the ludi were popularized from funeral rites to mass entertainment in the late republic, what is to stop something similar with densensitized folk happening today (well to animals at least in civilian life), or with remote killing with drones, or mil training with vid games, all despite Pinker’s argument (and noting that gamers who play car games drive more recklessly in the real world, together with the popularity of that horrible show “gladiators”, which would be deadly if the risks on aus fun home vids were accepted, or those japanese tv shows clive james used to show lowlights of).
I don’t think so, although that said it did take a very long time to get rid of it, and probably had as much to do with the empire’s precipitous economic decline than anything else. The official cut-off is 410AD, and the ‘saintly story’ attached (take with appropriate truck-load of salt) is that a monk called Telemachus tried to intervene in a gladiatorial bout and had one of the gladiators turn on him and take his head off for his trouble, which led the Emperor to draw a line in the sand. However 410 was also the year that Rome was sacked by the Visigoths, so I suspect that probably had more to do with it.
The best book I ever read about the issue was Michael Grant’s Gladiators (1971). It is interesting but deeply unedifying, much like Steven Pinker’s descriptions of animal cruelty in the links above. I also translated Martial’s de spectaculis for a seen, and, well, it’s pretty grim. Like all the slave jokes in Roman plays. Yeah, dude, as funny as a fit. Not. I think I’ve told readers once before how I was asked to direct a Plautus play for one of my Latin classes and said that I didn’t want to do it because if I did, I was sorely tempted to have the ‘wily old slave’ in blackface, playing a banjo and whistling ‘Dixie’.
A paper on sport and violence from greek to medieval times said at a tourney in 1250 CE, 60 competitors killed, and other knights could wait on the sidelines and grab a downed competitor for ransom, while afterwards, spectators and participants might go on a bloody rampage through the town. Regulations for blunted weapons only evolved gradually. Soccer riots still make the headlines. Thank goodness for tightening laws and prudes!
If people /did/ volunteer for gladiatorial shows today, what would be the libertarian line? Still, I suppose it’s better than conscripted soldiers (the press gangs were less organized and could inconvenience employers, which may be why press gangs stopped, otherwise, what other difference is there?)
And what is the difference between slaves and convicts transported to colonies and hired out by the government if originally imprisoned for debt or something petty? 3-strikes for petty crimes then long prison in labor-extracting US prisons isn’t much different. So, how do effects lag when the laws might evolve but change the labels of things (a rose by any other name…)?
I must admit I do enjoy UFC mixed martial arts. At first I thought it was disgusting and should be banned but now it’s a guilty pleasure. The more blood that floes the better I like it.
Lots of blokes I know also reckon it’s great but none of the wives. I suspect there is a large genetic component to this. Bloodthirsty entertainment compensates for the thrill we no longer get from hunting, or being hunted by, vicious beasties and neighboring tribes.
That said, I don’t watch Funniest Home Videos as I’m concerned that some scumbag parents might be involving their kids in dangerous pranks just to get on the box.
Umm, flows not floes. Fumble fingers.
Whilst on the topic of ancient horror I’ll share what I learnt about the original notion of decimation (as in to decimate you’re enemy). The word shares it’s roots with words such as decimal and decade. Crassus reinstate the practice of decimation during his pursuit of Spartacus and the rebel slaves.
Crassus sent Mummius with two legions (ie 2 x 5000 soldiers roughly) to pursue and pressure Spartacus and his army of rebel slaves (possibly numbering 60,000). He gave Mummius strict orders not to engage in battle but Mummius seems to have ignored this order and engaged anyway. His soldiers were crushed by the rebel slaves. 500 Roman soldiers fled that battle and reported back to Crassus what had happened.
Crassus wanted to make an example of the 500 who had fled instead of fighting to the death as honour would dictate. So he divided the 500 soldiers into 50 groups of ten men. Within each group of ten men a lot was drawn and one man singled out. The other nine men were then ordered to beat the unlucky comrade to death, knowing full well that fate might have put any one of them in the victim’s shoes. A harsh lesson for the survivors, a harsh end for the victims.
History, or what is known of history, suggests that Crassus was rewarded for this brutality. Very few of his soldiers deserted in future battles.
DB@28 The Church hated tournaments but was worn down by the strength of the knightly elite’s addiction to them. Despite being about violence, the differences between tournaments and gladiatorial combat were dramatic.
I suspect press gangs were simply too inefficient and the Royal Navy got to the stage of being able to satisfy its manpower needs by a voluntary system. They were also a bit of a menace to external relations, hence being abandoned after the War of 1812. There was a big gap between the abandonment of press gangs and the introduction of conscription in the UK (an entire century).
Convicts were bonded labour, but were not slaves because they were never property. That makes a major difference — they had the right to marry, the right to own property, etc. And, unlike serfdom, you were not born into it and it was not generationally or maritally contagious. I am the descendant of convicts and it is obvious that being transported was the best thing to happen to the original couple — they ended up landowners, which would not have been at all likely for agricultural labourers in the UK in the 1790s.
As for modern gladiatorial possibilities, we are simply too publicly squeamish. And modern health welfarism rather precludes it anyway.
Comparing agrarian societies (Maori and other South Pacific cultures) with hunter-gatherer ones is always a bit problematic. I suspect you find that there was individual/family ownership of plants and fields even if the land itself was common property: a bit like the monarch being the ultimate owner of all land, but …
Now to squick y’all:
1. Gladiatorial shows were considered an appropriate venue for a Roman lad to take his date. Ovid advises prospective boyfriends to knock on their love interest’s door and ask to borrow her programme (these were block printed in garish colours) and then, while chatting, suggest a trip together. Apparently the amount of visible snogging really pissed off the morally serious Emperor Augustus, who tried to segregate the stands for everyone below the Equestrian classes (along similar lines to cricket grounds in Pakistan, but with the status exemptions mentioned). This proved so unpopular that it was soon dropped.
2. Lots of upper-class Roman women considered gladiators very fuckable. This, ahem, taste, was so widespread that not only does it turn up in their satire and fiction, but quite literally put the ‘forno’ into ‘fornicate’. ‘Forno’ is Latin for ‘arch’. The polite Latin euphemism translates into ‘going under the arches’. That said, fuckability was one thing, but running off with one (especially if the woman was respectably married) was very much not-U and met with extreme social disapproval and Mitford-like gasps of utter horror.
Crassus was rewarded for his brutality in other ways, also. He finally tried on one military campaign too many and along with his son, came to a very sticky end, indeed.
SL’s corrollary involving downfucking definitely seems evidence that builds on a historical pattern – your flash sheila sure often seems partial to a little “rough trade”, right throughout the epochs, even down to modern times, as is claimed by the impertinent.
for the enieme time reading PW’s comments, wtf?
Lorenzo, me too (at least 5 in the mix). Interestingly, we only found out about Dad’s ones through my mother’s genealogical research – my Dad’s grandfather lied about where his parents came from (said that they came from England, which was bull – they were Australian and the children of convict unions). So evidently there was some view that being a convict “tainted” one? The original stories are fascinating too:
(a) a teenage pickpocket on the second fleet who stole a handkerchief
(b) a girl who stole a whole heap of stuff from the haberdashery store where she worked – ended up becoming the de facto partner of one of the officers on the Third Fleet boat – and he ensured their children were regarded as legitimate.
(c) a prostitute who conspired with another prostitute to rob a client. The other girl lured the guy in, while my ancestor clobbered him over the head with a sock full of coins, but evidently not hard enough. Reading his excuses in the transcript as to why he was in a room with 2 prostitutes is pretty funny. She became a respectable married woman in the colonies.
(d) a farm worker who stole a leg of beef (hunger?)
eminem patrick? nah, stuff rap.
Dave;
Look into the Aboriginal Land Rights Act. The outcome has been notso hotso.
kvd;
I don’t manufacture ladies. I leave that to the Japanese.
LE@37 The original couple: he was 18 and convicted of stealing two male asses with violence (the C18th rural equivalent of grand larceny auto). Not sure what she was done for: something relatively minor. They had 14 children, most of whom lived. She lived to be 89.
And yes, there was a period when the convict ancestry was Not Talked Of in the family. Now, we are all terribly keen. But one could definitely talk of the “convict taint” being avoided in Oz society for much of the C19th and early part of the C20th.
énième (adj, Fr) = nth. Sometimes translated as ‘umpteenth’, although that’s not how it’s used in French (although my reading French is much better than my spoken French, so I could be wrong on that).
WordPress tends to strip out diacritical marks. Sorry.
SL, Russell Ward was the most patrician Marxist I ever met. But then, he came from Adelaide!
In a famous case, his appointment at UNSW was blackballed because he had been a member of the Communist Party. To considerable astonishment, he was then appointed to UNE. The astonishment came about because this was the only university council in the country with majority Country Party membership.
The views of the old left are deeply embedded in Oz Legend. The core thesis, after all, was that the Australian character was formed by the working class.
There was a deeply held view in Marxist circles that money and markets were the root of all evil. As part of this view, Russell and others thought that ‘primitive’ hunter gather societies practised a form of primitive communism. This got me into a degree of trouble.
In anthropology at the time, there was a debate between Polanyi and Cyril Belshaw about the applicability of economic theories and concepts to non-money using societies. Polanyi said not relevant, Belshaw said relevant.
I took the side of my cousin. My honours thesis looked at economic life in Aboriginal New England, using economist’s models to interpret traditional Aboriginal life. I asked questions about trade, capital formation, economic structures, property rights.
Aboriginal life was obviously different, yet the questions and models drawn from economic theory still provided a valuable framework. When you asked about Freud et al, this experience was in the back of my mind.
I hit some problems in marking and interpretation that affected my results. Even today, getting people to accept that the Australian Aborigines actually built things can be difficult. You cannot have economic structures and patterns of economic relationships without some concept of property. The issue is what concept.
Russell, to lls.
JB@43 – easily believable if you’ve lived in sw vic, and heard the stories of extensive eel farms and permanent stone huts.
http://www.abc.net.au/catalyst/stories/s993544.htm
Yeah, there’s heaps of stuff like that round Lake Tyer. And I also once saw some intricately sewn possum skin cloaks by the Lake Tyers mob – makes sense that people who live round Melbourne would have to have nice warm cloaks. They were exquisite. Apparently each one had a special meaning. Don’t tell me that someone wouldn’t have gotten annoyed if another person took his possum skin coat… Everyone has property, but as Jim says – to what degree, and what sort?
Here’s the possum skin cloaks. Awesome stuff.
JB@43 I find Yoram Barzel’s analysis of property rights very helpful: I have posted on the inevitability of property rights using his analysis.
That’s a very good example, DB@45. LE, some of the possum skin coats were indeed fine. One of the dividing lines lay in the distinction between personal and communl property. Australian protohistory was tragically short; it is very hard to know factually how things such as the Mt William axe factory or the eel farms were actually organised.
Lorenzo@48. I have bookmarked your site to come back to.
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.
Jim
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.
PP@51 “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.
Sitting through those pidgin French classes all I could think was “what about the workers”!?
DB@PP *chuckle*
db
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
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.
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.
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].
PP@55, PW@57 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.
PP@51. 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.
JB@60 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.
Lorenzo@61. 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.
JB@62 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.
PP@55, PW@57 To add my 59, a very nice summary of the efficient market hypothesis is here:
EMH is badly named: it should be something like the ‘all available information hypothesis’. Just as ‘rational expectations’ should be ‘consistent expectations’.
Lorenzo@63. 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.
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”!?
Lorenzo
Oh, I agree. Talk about flaying “neoliberalism” straw by straw!
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.
JB@64 If you have any responses my post @48, I would be most interested.
Hi Lorenzo@68. 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.
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.
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.
Henry2@71, 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.
H2@71 I want to echo JB@72.
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.
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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