Many commentators locate the emergence of complex social interaction in the hunter-gatherer group, comprised of men (in most cases) who separated out from the undifferentiated, mixed kin-group, and needed to develop sophisticated techniques for co-operation and communication. As has been described earlier in the book, this may explain why it was through 'The Fathers', or the male elders of the tribe, that law emerged as the basis of all conduct, moral or otherwise. The feminine emancipation of the last 150 years has shifted the law into the hands of women as equal partners alongside men, but the masculine origins of the law are hard to dispute. Individual male heads of tribes (families, kin-groups) in Ancient Rome, and their joint male councils, exercised omnipotent legal powers as of right (De Jouvenel, On Power; Maine Ancient Law).
There is still controversy over the pattern of cause and effect as between increased human brain size, erect posture, the gradual enlargement of the group, and the cognitive advances that accompanied them, including the development of language, the enlargement of consciousness, and the emergence of myth as a central feature of human group life. It's not in doubt, though, that these various changes and innovations began to take place with the arrival of Homo habilis, approximately 2m years ago, and were completed by the time of the appearance of Homo sapiens, approximately no later than 250,000 years ago. Since it is hard to imagine that any very sophisticated interaction could have taken place in the group until the emergence of language, it is perhaps also reasonable to date the availability of a set of 'groupish' moral templates to the same period. Little change can have taken place to the genetic inheritance of modern man since then, so we can assert that the genetically-embedded moral structure of humans is at least 100,000 years old and more probably 250,000 years old.
From a cognitive aspect, self-awareness had a key role to play in the process through which the group imposed its ethical rules on its members. As has been shown in previous chapters, however, there is no need to suppose that anything similar to our modern idea of individuality did or needed to exist during the evolution of groupish ethical structures in the human psyche. It would have had no adaptive purpose.
It is not the intention in this chapter to attempt anything so grand as an overall exposition of the evolution of society, but to treat of some of those threads of societal development with which consciousness and the human propensity for forming groups are particularly intertwined. These can loosely be defined as the law, the family, the economy, religion (or more generally, morality) and governance.
Although these five broad headings will not be set out one by one, but in a sequence of episodes which will hopefully end by illuminating all of them, the chapter is going to begin from a perhaps surprising place – with trade.
It's probable that many people think of trade as being one of the 'highest' achievements of humans, some kind of coping stone on the edifice of civilization. That it is a force for good is beyond doubt: it adds to the material wealth of the parties who trade, it spreads knowledge about cultural artefacts and even the cultures which produce them, and it diminishes the chance of aggression between trading partners. But far from being a result of the civilizing process, it is becoming more and more likely that trade is a main cause of that process. An extreme view would be that it was a necessary precursor of settled human life in the tribal group. At the minimum it is hard to imagine the successful development of inter-group relationships in the early stages of human civilisation without the benign and informing influence of trade.
Trade itself depends on the division of labour. Although the division of labour between individuals is an evolutionary innovation that predates humankind (ants – bees – etc), it was humans who first developed the practice of division of labour between groups. Groups of ants or other animal species may fight each other, but only human groups co-operate, and the possibility for this rests squarely upon the groupish propensity to exchange allied to reciprocal altruism.
Without the benefit of 18th century hindsight (not to denigrate Ricardo, a very great economist), the division of labour between groups that led to or was driven by trade 300,000 or more years ago was perfectly in accord with the law of comparative advantage, which says at its simplest that each group should do only what it is best at, and rely on trade for everything else it needs. The relative competence of a group may be assisted or constrained by its environment (raw materials etc), but even on a completely level playing field two groups will collectively achieve the best result if each one becomes a specialist in a particular technique, rather than trying to compete against each other.
This is the basic argument for free trade, and has been distorted in modern times by the nation state, which is driven by the desire to increase its own power, or by the cupidity of a narrow merchantilist class which appeals to that power for protection against the market (itself representing groupish human nature).
Perhaps it is
too obvious to mention that without groups there could have been no Law
of Comparative Advantage, and no Ricardo. Individuals can specialize with
advantage, of course, within the group, and do so; but there are fairly
few activities which are more commercially viable when conducted by one
individual than when conducted by a group.
It is reasonable to see exchange in primate groups and later in human groups as the precursor of trade. Exchange is driven by reciprocity, which developed in the primate and early human group, as has been outlined in previous chapters (see, eg Trivers, 1971). The instinctive, genetic basis of reciprocity in primates and humans has been amply demonstrated experimentally (eg Fehr and Gachter, 2000). Among primates, food sharing is prevalent. Males exchange food for social benefits, including sex with receptive females, and appear to have deliberately constructed the exchanges.
Clearly each individual is able to remember the history of her previous transactions with each other member of the group, use that knowledge in deciding how to respond in ongoing situations, and even to plan social transactions in advance. This corresponds to a moderate degree of self-awareness.
In the nature of things, chimpanzee groups, like most animal groups, are normally kin-groups, and it seems inevitable that most or all early human groups would have been kin-based. The elementary relationships which are required to ensure survival (the sexual relationship, the mother/child relationship, and to a lesser extent the father/child or uncle/child relationship) and which are known as 'dyads' (Adams, 1960) do not however seem to have led to a clear sense of membership of an extended family, rather, the strong reciprocity which developed among human groups applies to the members of group, widely defined. This makes sense in evolutionary terms – why limit the membership of a group to just related individuals? – and fits with the fact that humans (unlike many other types of animal) have no sensory equipment to tell them who is, or is not, a family member. Fathers routinely bring up children sired by other men without their knowledge, siblings often meet without the least idea that they are related, and so on. Although the 'nuclear family' so beloved of social commentators certainly does form a part of many human social structures, it is far from universal, and a wide range of other models seem to be perfectly successful in forming workable societies.
Prior to the establishment of written records, and even those can lie, family membership could only be judged from immediate circumstances – you are sitting around a fire with a man and a woman who feed and protect you – or from the memories of those around you, once language existed. But there are multiple ways in which a person can know about the other members of their group, mostly cognitive and objective in nature, and many of them can apply even if you have never met an given individual previously. Unlike family ties, and this is not to downplay their immense importance in terms of emotional life, group membership taps into a well of subconscious knowledge about the other members of the group. It can also apply to multiple groups, something that is beyond most kin groups.
There is every reason, therefore, to understand why evolution would have picked on group membership rather than family membership as the operating principle of larger units of society – and the larger the unit, the more group membership outplays family membership in terms of effectiveness, other than in purely domestic matters. As to consciousness, group membership, both his own and that of conspecifics, would surely have had a high profile in the mind of the early self-aware or even merely socially aware human, defining behaviour and allowing the planning of behaviour in a vast range of possible social situations.
Hunter-gatherer groups are often thought to be the forum in which human 'strong' reciprocity and groupishness reached the degree of polish they display today; the same behaviours as are met with in chimpanzee groups are in evidence, but on an expanded canvas. Individual choose to kill large animals which are far beyond the capacity of themselves or their immediate family to consume, with the purpose of exchanging the surplus meat for a variety of social goods, including prestige, sex, expectation of future food, repayment of past favours, payment in advance for future favours, and so on. Although these behaviours can have relevance within a family, most of them have far wider application, and specifically in the context of this narrative they take on the appearance of trade. See for instance Barkow, Cosmides and Tooby (The Adapted Mind) and Mithen (The Prehistory of the Mind).
Says Ridley (The Origins of Virtue): 'I do not believe it is too far-fetched to see in the actions of hunter-gatherers distant echoes of the origins of modern markets in financial derivatives'. According to Hill and Kaplan (1989), (the hunter) is entering into a contract to swap the variable rate return on his hunting effort for a more nearly fixed return rate achieved by his whole group.'
Thus co-operation rather than competition was the norm inside the group; but there was a very different picture between groups, which were highly competitive, fighting over territory, food resources and women. Indeed, competition between groups was one of the techniques that evolved to increase the fitness of individual group members and to sharpen the effectiveness of the set of groupish skills that was described in Chapter Five. This is a widely described phenomenon: see for instance Ridley (ibid).
If though there had been nothing but unbridled competition between groups, the results would evidently have been negative for the survival of the race. Something was needed to temper the automatic xenophobia of the in-grouper towards the out-grouper; and that something was trade, or more generally, the propensity to exchange, which developed first among in-groupers as an aspect of reciprocity but then, once it existed as a standard feature of the human psyche, could also operate between groups.
It's difficult to know whether reciprocity was or was not adaptive at first as between the members of a group and the external individuals with whom they came into contact. Given that in the early stages of human development, most non-group visitors are enemies, it might be thought that it would be non-adaptive in such encounters. But then there would be no trade, evidently, and a group which trades is eventually fitter than a group that does not trade.
Seabright (The Company of Strangers) says:
It's no surprise then that reciprocity (which evolved within the group in order to cement personal relationships) would have been involved in permitting external trade; a visitor with good intentions may have used mimicry to appear friendly, obtaining a reciprocal result, after which trade is possible. It's also possible that reciprocity evolved within the group as much as to foster exchange (of which trade is merely a special case) as to encourage individual relationships. Seabright again:
The trust that is displayed in reciprocal exchanges, especially when the second half of an exchange is deferred, owes much to its origins within the kin-group, to the extent that putative trading partners often attempt to find a basis of trust by exploring possible relationships, even if distant ones. Although this behaviour is most marked in tribes which have not departed far from the kin-group model, it is an everyday occurrence among modern humans, who eagerly seize upon any basis for relationship with people they meet, such as common friends or common origins (membership of the same group, in other words) and feel much reassured when such a relationship is found. While this doesn't damage the concept of reciprocity, it does emphasize the extent to which group membership is helpful in creating the trust needed for successful trading.
This is neatly demonstrated by trading patterns among the Kundagai Maring in Papua New Guinea (Healey, 1984). Among un-related traders, immediate exchange took place 483 times as against 35 cases of delayed exchange; among related traders, there were 697 cases of delayed exchange as against 71 cases of immediate exchange. Healey notes: 'The search for kinship ties between erstwhile strangers introduces moral principles that should obtain between the parties'.
The gradual development of trading networks covering large geographical areas of the world is thought likely to have taken place during the period that Homo erectus was spreading from Africa to colonize most parts of the world, that's to say, between 1.4m and 300,000 years ago. Homo erectus was an expert tool-maker, and these tools are sometimes found far away from the place of their origin and presumed manufacture. Home erectus had a hunter-gatherer and sometimes nomadic life-style.
This then is the period during which the moral structures we may call 'trading law' would have evolved alongside the trading itself. 'Trading law' would have to include property rights, concepts of 'fair' valuation and methods of resolving conflicts, at a minimum. Large tracts of modern law and of the judicial system are devoted to these subjects, of course.
Says Ridley (ibid):
It is tempting to suppose that the gradual expansion of Homo erectus from its African home to coverage of most of Europe and Asia would have created many demands for trade. If a sub-group splits off from a group whose current territory includes a stone quarry (for axe-heads) and migrates to an area where game is plentiful but there are no quarries, it is easy to see that a trading network may come into existence to maintain the supply of axe-heads to the sub-group, or possibly the unworked stone blanks, which can be returned (traded back) as worked implements.
Seabright (ibid) describes the evolution of a network of people and groups who trust each other as accompanying or enabling the development of trade, and he insists on the need for property rights if such networks are to develop and be stable.
Thus also Durkheim (ibid)
Speculation apart, the first clear archeological evidence of trading as distinct from physical movement of tools or tool materials comes only approximately 50,000 years ago (Gamble, 1996), although there are plentiful examples among contemporary primitive tribes of how early human groups may have traded with each other. Among surviving Stone-Age tribal cultures, division of labour seems to take place to a marked degree even within an area in which groups are in constant touch with one another, and even in the absence of environmental features to drive it.
The most perfect example of trading among primitive groups, though, must surely be the Kula, described by Malinowski (Argonauts of the Western Pacific) in 1922.
The Kula is an institutionalized and non-commercial system of trading practised by a series of primitive tribes in part of the Western Pacific. The objects traded (craft-works of various types, but always exactly the same types) travel around a vast circle of tribes from island to island. Some types of object travel clockwise; other types travel counter-clockwise. The process of trading (conducted by canoe parties of tribesmen) is highly stylized and imbued with mythic rituals. Participation in the trading ring gives status, and high status individuals tend to be involved more than low status ones, although very high status individuals (chiefs) do not travel, acting only as recipients (and then donors) of the objects traded (exchanged would really be a better word, since money is not involved).
The Kula, which amazingly still apparently survives (Young, 1990), is a ritualized system of exchange which can be seen as the backbone of inter-group relationships in the extended tribal community. Malinowski himself maddeningly refused as a plain 'anthropologist' to speculate on the origins and evolutionary or social purposes of the Kula; but his language hints at many social benefits to be gained from the institution. He does note that the effect of the Kula is to create a safe and comfortable framework within which it's possible to conduct non-Kula relationships, including economic trade. But he doesn't say that's the aim of the Kula.
First of all, the frequent social and ritual events of the Kula provide many opportunities for non-Kula (commercial) trading to take place. The frequent inter-tribal contacts mandated by the Kula ensure that relationships are conducted on a non-aggressive and co-operative basis. The Kula also provides opportunities for inter-tribal cultural exchange, and serves to maintain linguistic compatability between tribes.
It's easy to say, but hard to prove, that the Kula is an evolved mechanism which maintains overall inter-group harmony, cultural compatibility and economic exchange (via parallel trading). It's easy to believe, indeed, that without the Kula there would be a far greater amount of aggression and far less economic trading between the various tribes involved.
Clearly, the Kula is based on a genetic propensity for exchange; it also involves reciprocal altruism and a heavy reliance on mythic governance. It is founded on a kin-group hierarchy, within each separate tribe, and even to some extent between related tribes. All these factors are clearly genetic. It's hard to say how far non-genetic, cultural factors were involved in the development and the maintenance of the Kula. Of course, there isn't a 'Kula' gene. But only a thin coating of cultural continuity may have been needed to maintain the Kula tradition from generation to generation, given all of the powerful genetically-driven psychic needs that it satisfies and expresses.
At the time (nearly 100 years ago) that Malinowski conducted his research, it was still possible for him to observe the relatively 'uncontaminated' level of consciousness of the Kula traders. Nowadays they probably carry Blackberries in the canoes. Among the more interesting of his observations about the mentality of the individuals he came across are the following:
There is no sign here of meta-cognition. The individuals have a most acute sense of social realities; they are self-aware; and they are capable of planning complex strategies and inter-personal relationships as well or better than you or I. But they do not introspect or mind-read; they are not 'conscious of their consciousnesses'. Significantly, they have neither writing nor a sense of historical time.
It is of course most tempting to imagine that the level of consciousness of the Kula Melanesian tribes was equivalent to the 'self-awareness' of pre-Homeric Greeks, but falling short of the meta-cognition that became part of the educated human psyche in the second millennium BC. At any rate, in respect of human consciousness, Malinowski's research is strongly supportive of Jaynes's view that meta-cognition (he doesn't call it that) emerged only in the first millennium BC. It is very easy to reject Jaynes's views intuitively; but the Kula brings you up short.
In the end it doesn't matter much whether reciprocity is directly or indirectly responsible for the development of extra-group trade; the connection is indisputable, and it was trade which paved the way for constructive relations between tribes which would otherwise have been enemies, or at least, worse enemies than without trade.
Durkheim (ibid) traces the course of 'corporations', meaning professional associations, which under the Romans imposed considerable moral structures on their members, until the State sapped their life under the later Republic; they rose again in mediaeval times as the Guilds, and these again provided moral frameworks for their members for more than 500 years until in the 18th century they gave way in the face of the Industrial Revolution.
It's a very noticeable fact that almost all successful international bodies of law have to do with trade. The World Trade Organization, the International Chamber of Commerce, international maritime treaties, Free Trade Agreements (EFTA and then the EU), OPEC, NAFTA, and many other organizations and treaties are essentially commercial in their origins and effects, and by and large they are welcomed by all nations, who more or less willingly submit to their jurisdiction. Not so with attempts at political, ecological and social international co-operation, which are usually bitterly disputacious, and often ineffective.
From a groupish perspective, this situation can be summed up quite neatly: groups are xenophobic except when it comes to exchange, when they become cooperative.
That sounds topsy-turvy to modern minds; it is commonly thought, even by free-traders, that trade can only flourish where the rule of law has been established, as in 'Trade follows the flag'. The reality is almost exactly the reverse, as the colonial histories of European nation states demonstrate: the East India Company is just one of dozens of examples of private enterprise based on trade which were later subsumed by nation states as the basis of colonies.
It has been so throughout recorded history. The example of the Yanomamo quoted above demonstrates how trade leads to political alliances rather than following from them; and the same can be observed in the development of merchant guilds in mediaeval Europe. The city-states of Europe indeed provided a settled environment in which trade could flourish, but they were certainly not the expression of feudal power; on the contrary, they were created on the basis of the guilds, associations of traders of various types, and commercial law was developed by the guilds in the form of codes of conduct. This was even more true internationally (so far as that term has a meaning before nation states existed). The Hanseatic League (The Hansa) is the supreme expression in Europe of the pre-eminence of 'groupish' private commercial law; it is nowadays hardly remembered, but from the 13th to the 17th centuries the Hanseatic League, uniting the traders of modern Germany and the Baltic States, was the strongest and longest-lived institution in Northern Europe. For hundreds of years it provided a legal and social framework within which commercial activity could take place. See Dollinger (The German Hansa) and Nash (The Hansa).
A map of Hanseatic
League trading routes
The merchants who formed the Hansa had already formulated an over-arching legal system, the 'lex mercatoria', to enable their increasingly international trading activities. Benson (2001) says:
Ridley (ibid), points out that the groupish virtue of reputation lay at the heart of successful international trade in the 12th century in Europe:
The Hansa and the European city-states were straightforward expressions of groupish behaviour among traders and craftsmen, confronting the State (still quite weak) rather than within it. In the Aztec Empire (AD 1200 – 1500), the state had perhaps more power than was the case in Europe, but international or long-distance trade was still organized around a structure of merchant guilds which seems to have been remarkably similar to the European model, operating with a quasi-independent legal structure, and making much use of privately sponsored marketplaces.
Berdan (Trade and Markets in Precapitalist States) describes Aztec artisanal and trading structures:
Merchants who travelled long distances were safeguarded in foreign markets by the organisers of those markets.
Although in the modern mind, trading is essentially an activity carried out by individuals, and the joint stock company is thought of as a recent innovation, trading by an early human kin-group was almost certainly thought of as a group activity. Much later, the mediaeval guild is an expression of the groupishness of trading as an activity. The city-states themselves seem to have evolved from the 'market-place', which had a special protected status quite similar to that of consecrated ground (and maybe even stemming from the same mythic roots).
The case for the groupish origins of trading and markets is convincingly set out by Kropotkin (Mutual Aid), with special relevance to German and Eastern European models: 'The guild merchant was a body entrusted with commerce in the interest of the whole city, and only gradually became a guild of merchants trading for themselves'. But this 'gradually' was a slow poison that spelled the beginning of the end for the maintenance of groupish ideas of morality and governance.
The merchants of the Hansa, like their Roman, Greek and even Phoenician predecessors, had the advantage of written language, without which the recording of an external, static body of law and commercial customs would have been impossible; and it comes as no surprise therefore to find that writing itself had a commercial origin.
Schmandt-Besserat supposes that accounting may be related to the rise of an elite, which needed and wanted to tax the production and movements of goods, when communities had grown beyond the possibility of egalitarian governance.
Schmandt-Besserat also points to the occurrence of tokens among burial goods from 6,000 BC onwards.
The fact that the first stage of the token system (plain tokens) coincided with agriculture and the second (complex tokens) with urban formation, seems of great significance. It clearly indicates that the evolution of accounting coincided with major socioeconomic developments. The emergence of alphabetic writing (the transition from pictorial to conceptual symbols) may also have taken place in connection with trade.
Donald (Origins of the Modern Mind) says:
In a previous chapter, we saw how the decay of the 'collective consciousness', as Durkheim called it, or the 'collective unconscious', as Jung called it, led to the beginnings of individual moral responsibility. Consciously or unconsciously, humans had previously had reference to their internalized bodies of groupish identity; now, they were on their own. Jaynes would have told us (sadly, he died in 1997) that this change took place towards the beginning of the first millennium BC; other writers would date it earlier. But whenever it happened, it was not long before governments, rulers and priests (mostly in the reverse order) leapt in to offer their own versions of morality. It is a rare human being that can work out how to behave in society from first principles, and even those few need help from the accumulated body of written human knowledge; for most people they absolutely must have reference to external codes of behaviour, whether they understand them or not. Humans like certainty; they do not want to be bothered with the mental torture of having to construct a bomb-proof attitude in every new situation.
This process, of the substitution of externally guided individual responsibility for internally guided group certainty has dominated Western thought (someone else will have to answer for Oriental thought) for the last 2,500 years, and we are far from having reached a conclusion. The change did not take place overnight, but if there is any one moment at which the prevailing ethos changed over, it would have to be the invention of printing (Anderson, Imagined Communities), when for the first time written and even occasionally objective information became independently available to the mass of people. But for the most part, it has simply been that an ever-increasing proportion of humanity has had to learn to act as independent and accountable agents in society.
As the broadest possible generalization, it can be said that priest/rulers supplied the external codes of conduct for the first 1,000 years (say until 500 AD), that organized religions carried the moral candle for the next 1,000 years; and that the State has imposed its own views since then.
The emergence of the nation state, something which took place in Europe during the 15th to the 17th centuries, therefore spelled the end for the private Hanseatic regime, and its spiritual successors the colonial trading companies were likewise mopped up by the State, which had become much more powerful, and easily took over their activities.
The message is that trade takes place within and between groups, and that the rules governing trade are best developed within and among those groups. The State, which is the negation of groupedness – a kind of devil in the face of the God of groups – is very bad at managing trade.
The happy fact that trade leads to the creation of stable multi-group alliances may have been the way in which early human groups did not destroy each other, and during recorded history there are many examples of it.
Our direct, evidence-based knowledge of legal structures in human social groups dates only from very recent times, say at most the last 10,000 years, so that most theories about how social groups may have organised themselves during most of the last 250,000 years are heavily dependent on the study of modern tribal societies which are presumed to be similar in most respects to earlier pre-literate societies. Hardly any of these societies remain uncontaminated by modern man, so that new studies become less and less valid – field anthropology had its heyday in the 20th century. Prior to that, much work was unscientific or badly documented. On this tiny base of evidence, mighty cathedrals of social theory have been erected.
With this proviso, much can be said about the governance of primitive societies, and some of it has a limited degree of indirect archeological or paleontological backing. The overall conclusion is that the laws governing the life of families and societies are as much creatures of the collective as is trading law.
'Law' to a modern human is so much a 'top-down' feature of the highly regulated States we almost all live in, that it takes an effort of mind to realize that large parts of law are in fact 'bottom-up' in the sense that they represent moral structures that are intrinsic to all human groups, even if most of these laws have nowadays been taken over by the State.
Indeed, there is no easy way of distinguishing between the components of the law that stem from the genetic endowment of humans, and its cultural elements. (The word 'cultural' is here used to refer to social constructs which are not biologically evolved but which have developed as human society has become more complex and which are transmitted from generation to generation by education or via external stores of information such as books.)
To illustrate the distinction: injury caused by a man to his wife has been the subject of sanctions in a tribe or kin-group for a very long time, and there are few if any human societies in which it is not regarded as requiring a response, although that response varies very widely; whereas sanctions for failure to fill in an annual return form are a feature of some bureaucratic modern societies that would have had no adaptive benefit 250,000 years ago.
Curiously, it is quite difficult to think of a branch of modern law that doesn't owe its origins in part at least to the genetic moral template, although by now all types of law are festooned with the regulatory outpourings of the nanny State, and of course must take account of numberless circumstances which were different or just absent at the time that we evolved as social animals.
Almost all modern (20th century) writers agree that the governance of the early human social group arose out of its nature, that is to say, was genetically inspired. The two strongest pieces of evidence for this are first, that all primitive groups that have been studied share the same basic moral templates; and second, the persistence of 'customary' law among modern societies despite the growing tendency of lords, kings and eventually the State to impose their own rules. The long continuity of village- or community-based law in Europe and Russia, throughout history and up to the 15th century is very noticeable. Such law is very centered on individual relationships within the group, on solving problems in the group, on assessing 'right' and 'wrong' as between people and dealing with compensation. However, at all times the individual is treated as being part of the group, and the actions of an individual are treated as actions of the group. Thus Kropotkin (ibid):
Kropotkin remarks upon the persistence of this community-based customary law even after villages had come under the sway of warlords:
Kropotkin also notes that the death penalty, indeed all penalties, were scarcely available under customary law. If a person was unable to pay compensation, even for killing, he would normally join the family or group of the injured party.
Westermarck (The Origin and Development of the Moral Ideas, Vol. I) says that the Rejangs of Sumatra:
Malinowski (ibid) supports de Jouvenel in asserting that work, or the performance of social duty, is a natural expression of social reality in native, tribal societies, not something imposed:
For de Jouvenel, 'law', or at least the process of 'legislation', comes at a late stage of human societal development. The body of customs and moral precepts is seen rather as being fixed from time immemorial. Indeed the word 'law' carries with it at least nowadays a sense that rules are being imposed which can be enforced, that there is some external agency, whether that be the Gods or the king or the police or the State, which is available to administer the law.
This is how law was understood by Durkheim (ibid), a key figure in anthropological analysis in the late 19th century. Durkheim says that law in the earlier societies (say up to the time of the Greeks) was primarily 'repressive' or 'penal', and was almost synonymous with 'religious' law. Nonetheless, Durkheim accepts that all this law was an expression of the moral structures and customs of the group, and represented a codification of the precepts of the 'collective consciousness' (a phrase which in Durkheim is more or less equivalent to the modern usage of 'unconscious').
Durkheim, describing Roman law, distinguishes between private offences ('delicta privata') which were dealt with among groups of individuals or in families and offences which were taken on by the city.
By a gradual process, beginning already at the time of the Greeks, says Durkheim, repressive law gradually weakened, until by now only small segments of it remain. However, alongside grew 'restitutory law' in which he includes commercial law, matrimonial law, property law, administrative law etc etc, to regulate the interaction of the individual with society and the State.
Durkheim considered law to have been essentially religious in origin among more primitive peoples:
However, Durkheim did not have the advantage of access to modern ethnological and anthropological research, and underestimated the extent to which law (or at any rate moral structures) in primitive societies antedated religion. Even so, he accepts that 'religious' law exists for the purposes of society:
His position is really inconsistent, but perhaps he can't be blamed for not realising that groups and society antedated religion, which merely took over existing bodies of customary law. Durkheim was writing in the tradition of French cartesianism, so that allowance must also be made for a degree of dirigisme in his outlook.
Ridley (ibid) points out that the body of law in primitive (tribal?) societies applies within the group to its members, but not to the outgroup:
It is not right however to suppose that members of primitive tribal societies obeyed their folk-laws purely out of a sense of moral obligation to the group. There were sanctions which could be applied if they did not, ranging from expulsion (a serious and possibly fatal punishment) to violent retribution from relatives of injured individuals. Evans-Pritchard (The Nuer) makes this clear:
Alexander (The Biology of Moral Systems) says:
But that is surely too limiting: a group has a competitive advantage if it has a set of agreed-upon rules, but that doesn't prevent the rules from achieving other goals – division of labour between men and women, efficient hunting and the rest.
De Jouvenel (ibid), tracing the growth of the power of the monarch and then the State, points out that in mediaeval times such power was severely tramelled by the 'Lex Terrae', the customs of the country, 'which was thought of as a thing immutable':
De Jouvenel says that 'sovereignty', in the sense of the over-arching power of the sovereign, was a 17th century construction, and that all previous societies regarded themselves as being assemblages of individuals subject to a common law, which applied to the sovereign (if there was one) as much as to any other citizen. For instance, in Rome, 'what they saw in their mind's eye was not a person, Rome, but rather the physical reality of a collection of individuals beloning to a group'. He insistently describes Rome, Greece, Sparta and other early civilisations as being ruled by councils of elders, being the heads of the aristocratic families (nothing democratic about it in a modern sense!), at least when they were not under the sway of an absolutist monarch, such as Alexander, or the early Roman kings. But even when there was a king, the council of elders (nobles, fathers, barons or whatever) held a balance, and maintained the traditional law. There is no sense in which the king was a law-giver during that period:
'How was a regime of this kind able to function at all?' asks de Jouvenel. 'Only by great moral cohesion and the inter-availability of private citizens for public office.' He stresses the importance of education in maintaining a cohesive body of citizens, but then says: 'The government of societies like this was, as has truly been said, the work of the folkways'.
For rules of conduct to be more than pious aspirations on the part of the more reflective or powerful members of a group, there also needs to be a propensity to accept such rules among all group members, and it is clear that this propensity did develop alongside the rules themselves.
Inside the human group there is very strong pressure for conformity – what is loosely referred to, often pejoratively, as the 'herd' instinct. It's obvious that the group would seek to impose conformity on its members in many respects (although dissent is adaptive when it comes to competition between groups, because it allows for greater flexibility of group behaviour). It's also obvious that one of the best ways of ensuring conformity (after mimetics) is by reference to an objective body of rules (or morals or laws or whatever) which all members of the group accept. It's not difficult to see how 'the law' would have evolved as a mechanism for ensuring group solidarity, initially through 'The Fathers' and later on as a separate body of rules independent of any particular sub-group, although there would always be a sub-group (or groups) with devolved responsibility for maintenance and enforcement of the rules. Today, the judiciary and the police are those groups; in the hunter-gatherer group, it was the Fathers, and perhaps even they had 'heavies' at their disposal (in return for extra meat?).
The propensity for members of a group to focus in on 'norms', far beyond what the evidence would justify, is well documented. The first important series of experiments was carried out by Sherif, eg The Psychology of Social Norms, in 1935-36. Sherif, after Durkheim, believed that norms are an intrinsic property of social interaction, tending to order, simplify and regulate interaction, and that, once established, they influence group behaviour even when the original members have been replaced. Sherif showed that in a group of people convergence on the mean (opinion or attitude) happens very quickly, and much more quickly if individuals have not had previous exposure to the particular subject on which interaction takes place. Once established, a norm influences both those who were originally present, even if they at first held different opinions, and especially newcomers to the group. Sherif stated that the norm is a quality of the group rather than of the individuals in the group. Many later researchers have verified and expanded Sherif's conclusions.
Deutsch and Gerard (1955) showed that the absence of social approval and 'informational' mechanisms reduced but did not eliminate the normative tendency. They suggested that humans have an ineradicable propensity to take other people's opinions into account.
The State as it developed between approximately 1600 and 1900 took over the legal systems which the traders had developed, as it would later take over education and the provision of other social goods. And with similarly adverse results: by the 19th century, traders, especially international ones, were so dissatisfied with State legal systems that they re-invented their own legal systems through the arbitration process. In the 20th century the State was busy once again trying to nationalize arbitration (States after all are run by lawyers!). However, globalization has undermined the nation state and has given a new lease of life to independent (private) commercial law. The World Trade Organization (WTO) is nothing but the Hansa writ large.
The battle between the State and the folkways for control of law and regulation is at its peak in the early 21st century. Governments legislate and regulate ever more furiously as the complexity of life in modern society becomes ever greater. But they are on a losing wicket, even if they don't yet see it. 'Subsidiarity', the European Union's buzz-word for pushing down regulatory activity to the lowest possible level of governance is no solution. In a globalized world there is no going back to village-level regulation; nobody lives in a village any more, except that we all live in the aptly-named 'global village'. This question is: what is the best way to deliver the unavoidable carpet of regulation that is needed to maintain our complex, multi-tiered lives in a way that delivers the maximum amount of individual freedom with the minimum amount of nannying interference? Clearly it is not to governments that we should look for salvation from increasing and inappropriate legislation; instead, it will be delivered by globalisation, much helped along by the Internet, and the empowered individual.
Globalization began in the commercial sector, as described above, with international dispute resolution through arbitration, and it has spread to most economic sectors. International – and often global – conventions, ruling bodies, courts and treaties now cover shipping, airlines, banking, insurance, telecommunications, investment, intellectual property, and even the environment, to pick just some of the most obvious examples. Largely but not entirely because of the fight against money laundering and terrorism, international co-operation is now beginning to impact on taxation and some aspects of criminal law.
Governments have no power to intervene once they have signed up to international instruments, organizations and treaties. It really is therefore only a matter of time before the legislative canvas of a national government will be limited to a few, minor domestic fields, and what is important is that the power which is seeping away from nations is not seeping towards a mighty international ruler (pace the European Community), but into the hands of consultative, rule-based , democratic, international bodies, of which the WTO is the most obvious example.
It's a possibly worrying feature of the modern world though that competition (even the little remaining competition between nations, which may have been driving social evolution) is being legislated away by the globalization process. Nowadays it is 'managed' competition. That's cause for concern perhaps, in so far as global institutions have monopolies for the most part, and even the saintly WTO is liable to go astray if it doesn't have competition. So far, at any rate, globalisation has been a success: the WTO, the OECD, the UN, the IMF, Greenpeace, Medecins Sans Frontieres, WIPO appear mostly to be beneficial monopolies, although the UN has committed some egregious crimes against the folkways, and the recent history of the OECD shows what can happen if an entrenched monopoly, however beneficent, falls into the wrong hands. The Hansa after all was a monopoly and none the worse for it. Perhaps the crucial factor that sanctions a monopoly is that an organization should have its roots widely distributed among its constituent actors, so that it accurately reflects the features of human nature that it is there to serve. This description fits the WTO, and most of the other organizations mentioned.
It's an open question whether the WTO is more groupish than a nation state, but its procedures (and those of any other multinational body) are a good deal more transparent and democratic than those of any State, which is a major step in the right direction. What will definitely reintroduce 'groupish' law into the affairs of individuals is however the Internet.
The Internet is so important to any consideration of the future development of human consciousness and our society that it deserves a chapter to itself (Chapter Nine), but a brief treatment is given below as a pendant to this chapter's historical exploration of the evolution of society.
Even without the Internet (which perhaps, like God, really does deserve its initial capital) there has been an enormous expansion of the information available to an individual, through radio, television, personal computer storage and the like. On its own, the extra information may make it possible for an individual to recreate herself apart from the herd; but it doesn't offer a structure within which 8bn people can co-exist peacefully and productively. It is arguable, however, that the Internet will enable just that, and it will do it by providing groupish moral standards which will come to affect more and more areas of an individual's life.
Journalist Peter Ludlow was kicked out of Alphaville in The Sims Online (a virtual reality community) in 2004 because he criticized lax moral standards in the community; this set off a wide debate in the US on 'free speech' in virtual reality worlds, and the applicability of the First Amendment (Balkin, 2004).
It's a problem in society that the people who are most likely to understand published moral guidelines are the people who are the least likely to need them; or to put it the other way about, the people who are most likely to behave unsocially are the ones who are least likely to be confronted with moral guidelines in their daily lives. Game shows, Big Brother, football or baseball matches, the neighbourhood bar and the gutter press do not add up to a morally edifying diet.
One of the advantages of religion as a conduit for disseminating morality was that it encompassed all levels of society. It is arguable that the Internet will be similarly pervasive, and specifically through its encouragement to groupish activities and feelings.
It may be objected that the Internet will never be more than peripheral to an average citizen's personal and social life. Chapter Nine contains a short exploration of that topic, which comes to a completely opposite conclusion, that for most people the Internet will provide increasingly important support and involvement for many key aspects of their lives. In particular, the Internet will encourage the formation of multiple groups to which people will willingly belong, and each group will provide a framework of morals, ethics or law (call it what you will) for its members. These frameworks will owe almost everything to the genetic moral templates of group members, and almost nothing to government.
Governments will of course continue to provide 'repressive' law, in Durkheim's term, dealing with the public behaviour of people, and multinational organisations will provide law for most public economic activity, as described above, while the Internet will increasingly provide guidance for people's private behaviour.
Thanks to globalization and the Internet, society is approaching a turning point – not the Singularity so beloved of futurists, but a moment at which a tipping proportion of humans will for the first time accept their own individual responsibility to internalize, or rather re-internalize their moral agendas, leading to a return to an ante-diluvian state of grace in which human communities will once again behave according to shared – but now conscious – moral agendas. Such at any rate is the hope, and it becomes possible because humans' use of meta-cognition in conjunction with advances in neurological understanding will allow us to re-engineer our cognitive and social environments to create a more sustainable and satisfying model.
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