Month: November 2018

What originally brought to mind Maine’s conception of ancient societies were some passages I read in Nassim Nicholas Taleb’s latest book Skin In the Game.

Taleb makes the point that things don’t necessarily scale up; when they do, they lose the characteristics that allow them to operate on the smaller scale. They transform into something altogether different, with very different characteristics. Last time, we pondered why the old kinship-based, non-hierarchical “gentile constitution” fell apart. I think the simple answer to that question is: as societies got bigger, that system could no longer work. That is, it could not scale. New modes of living came to replace it, as we’ve seen, bringing things like social classes, currency, written laws, markets, and government offices. This was not a simple or linear process.

But the new systems favored certain unscrupulous individuals—the ‘Triple-A’ type personalities—who could take advantage of this change to enhance their own power and prestige in ways that they could not before. This, in turn, leads to many of the social dysfunctions that plague our modern Liberal world order today.

In ancient societies, as we saw, people belonged to various groups and subgroups, and this is not only what defined their core social identity, but their quotidian behavior as well. Furthermore, this allowed society to function in the absence of written laws or formalized institutions. “Society”, such as it was, was the aggregate of these various groups, and not a single, unified thing. This is very important. This is why ancient governments could be so minimal. Their modern functions were accomplished largely via other methods, but in ways that did not scale.

In his book, Sources of Social Power, sociologist Michael Mann begins by arguing this very point—that the bounded, unitary, linear conception of society as a whole completely misrepresents what a society actually is. In his attempt to understand where power comes from and how it is wielded, he begins by eliminating this unitary conception of society from his analysis:

Societies are not unitary. They are not social systems (closed or open); they are not totalities. We can never find a single bounded society in geographical space. Because there is no system, no totality, there cannot be “sub-systems,” “dimensions,” or “levels” of such a totality…Because there is no bounded totality, it is not helpful to divide social change or conflict into “endogenous” and “exogenous” varieties. Because there is no social system, there is no “evolutionary” process within it. Because humanity is not divided into a series of bounded totalities, “diffusion” of social organization does not occur between them…Yet most sociological orthodoxies – such as systems theory, Marxism, structuralism, structural functionalism, normative functionalism, multidimensional theory, evolutionism, diffusionism, and action theory – mar their insights by conceiving of “society” as an unproblematic, unitary totality…State, culture, and economy are all important structuring networks; but they almost never coincide. There is no one master concept or basic unit of “society.” It may seem an odd position for a sociologist to adopt; but if I could, I would abolish the concept of “society” altogether. pp. 1-2

A theoretical assumption lies at the base of the unitary conception: Because people are social animals, they have a need to create a society, a bounded and patterned social totality. But this is false. Human beings need to enter into social power relations, but they do not seed social totalities. They are social, but not societal, animals. p.14

To conceive of societies as confederal, overlapping, intersecting networks rather than as simply totalities complicates theory. But we must introduce further complexity. Real institutionalized networks of interaction do not have a simple one-to-one relationship to the ideal-typical sources of social power from which I started. This will lead us to break down the equation of functions and organizations and to recognize their “promiscuity.”

This lead to Mann’s working definition of society:

A society is a network of social interaction at the boundaries of which is a certain level of interaction and cleavage between it and its environment. A society is a unit with boundaries, and it contains interactions that is [sic] relatively dense and stable; that is, internally patterned when compared to interaction that would cross its boundaries. p. 13

Let us examine the etymology of “society.” It derives from the Latin societas. This elaborated socius, meaning a non-Roman ally, a group willing to follow Rome in war. Such a term is common in Indo-European languages, deriving from the root sekw, meaning “follow.” It denotes an asymmetrical alliance, society as a loose confederation of stratified allies. We will see that this, not the unitary conception, is correct. Let us use the term “society” in its Latin, not its Romance, sense. p. 14

All of which feeds into Taleb’s salient observations. A society is a collection of people who have, in his terms, “skin in the game”—that is, their actions affect everyone else in their peer group, and everyone else’s actions affect them in turn. This allows society to function in ways very different that our large-scale anonymous contractually-based social order. This can be at the level of a village, a tribe, a monastic order, a corporation, or many other things. The rules and behavior towards people inside the collectivity are substantially different than those toward those outside the group. Here is the passage I noted in Skin in the Game:

Things don’t “scale” and generalize, which is why I have trouble with intellectuals taking about abstract notions. A country is not a large city, a city is not a large family, and, sorry, the world is not a large village. There are scale transformations we discuss here…

When Athenians treat all opinions equally and discuss “democracy,” they only apply It to their citizens, not slaves or metics (the equivalent of green card or H-lB visa holders). Effectively, Theodosius’s code deprived Roman citizens who married “barbarians” of their legal rights, hence ethical parity with others. They lost their club membership. As to Jewish ethics: it distinguishes between thick blood and thin blood: we are all brothers, but some are more brothers than others.

Free citizens, in ancient and post-classical societies, were traditionally part of clubs, with rules and member behavior similar to those in today’s country clubs, with an inside and an outside. As club members know, the very purpose of a club is exclusion and size limitation. Spartans could hunt and kill Helots, those noncitizens with a status of slaves, for training, but they were otherwise equal to other Spartans and expected to die for the sake of Sparta. The large cities in the pre-Christian ancient world, particularly in the Levant and Asia Minor, were full of fraternities and clubs, open and (often) secret societies-there was even such a thing as funeral clubs, where members shared the costs, and participated in the ceremonials, of funerals.

Today’s Roma people (aka Gypsies) have tons of strict rules of behavior toward Gypsies, and others toward the unclean non-Gypsies called payos. And, as the anthropologist David Graeber has observed, even the investment bank Goldman Sachs, known for its aggressive cupidity, acts like a communist community from within, thanks to the partnership system of governance.

So we exercise our ethical rules, but there is a limit from scaling beyond which the rules cease to apply. It is unfortunate, but the general kills the particular. The question we will reexamine later, after deeper discussion of complexity theory, is whether it is possible to be both ethical and universalist. In theory, yes, but, sadly, not in practice. For whenever the “we” becomes too large a club, things degrade, and each one starts fighting for his own interest. The abstract is way too abstract for us. This is the main reason I advocate political systems that start with the municipality, and work their way up, rather than the reverse, which has failed with larger states. Being somewhat tribal is not a bad thing-and we have to work in a fractal way in the organized harmonious relations between tribes, rather than merge all tribes in one large soup. In that sense, an American-style federalism is the ideal system.

This scale transformation from the particular to the general is behind my skepticism about unfettered globalization and large centralized multiethnic states…But you don’t have to go very far to get the importance of scaling. You know instinctively that people get along better as neighbors than roommates.

When you think about this, it is obvious, even trite, from the well-known behavior of crowds in the anonymity of big cities compared to groups in small villages. I spend some time in my ancestral village, where it feels like a family. People attend others’ funerals (funeral clubs were mostly for large cities), help out, and care about the neighbor, even if they hate his dog. There is no way you can get the same cohesion in a larger city when the “other” is a theoretical entity, and our behavior toward him or her is governed by some general ethical rule, not someone in flesh and blood. We get it easily when seen that way, but fail to generalize that ethics is something fundamentally local.

Now what the reason? Modernity put into our heads that there are two units: the individual and the universal collective–in that sense, skin in the game for you would be just for you, as a unit. In reality, my skin lies in a broader set of people, one that includes a family, a community, a tribe, a fraternity. But it cannot possibly be the universal.

Recall our discussion of Kant: theory is too theoretical for humans. The more confined our ethics, the less abstract, the better it works. Otherwise, as we will see with Elinor Ostrom’s result later in this chapter, the system cannot function properly. And, before Ostrom, our old friend Friedrich Nietzsche got the point:

“Sympathy for all would be tyranny for thee, my good neighbor…” pp. 57-60

This is also echoed in a passage from Mann’s book where he explicitly rejects the unitary conception of society:

Empirical proof [of a nonunitary, open conception of society] can be seen in the answer to a simple question: In which society do you live?

Answers are likely to start at two levels. One refers to national states: My society is “the United Kingdom,” “the United States,” “France,” or the like. The other is broader: “I am a citizen of “industrial society” or “capitalist society” or possibly “the West” or “the Western alliance.” We have a basic dilemma – a national state society versus a wider “economic society. From some important purposes, the national state represents a real interaction network with a degree of cleavage at its boundaries. For other important purposes, capitalism unites all three into into a wider interaction network, with cleavage at its edge. They are both “societies.” Complexities proliferate the more we probe. Military alliances, churches, common language, and so forth, all add powerful, sociospatially different networks of interaction. We could only answer after developing a sophisticated understanding of the complex interconnections and powers of these various crosscutting interaction networks. The answer would certainly imply a confederal rather than a unitary society. p.16

Which is exactly Taleb’s point, above. Fukuyama, in The Origins of Political Order, argues that the history of the modern state consists primarily of the process of transferring people’s primary social identity away from the family/tribe/confederacy to the territorial nation state. This underpins much of the last 6,000 years of history. One may be a firefighter, a Mason, a member of the Elk’s Club, a member of the Schmidt family with ethnically German roots, but above all, one is an American. The contrast is summed up in the Talking History podcast:

The Oxford English dictionary defines “nation” as, “A large aggregate of communities and individuals united by factors such as common descent, language, culture, history, or occupation of the same territory so as to form a distinct people.” Note how this is not the same thing as a state, or a self-governing political entity. A nation is a collective identity that may or may not be self-governing or independent. Only in the modern world, beginning with the eighteenth century and growing ever since, do we associate nations and states to the point that we use the terms interchangeably.

Wikipedia notes that, “In Europe, before the development of nationalism, people were generally loyal to a region or to a particular leader rather than to their nation. With the emergence of a public sphere and integrated economy in the eighteenth century, a broader sense of identification with one’s country began to permeate society. Nation states have their own characteristics differing from those of pre-national states. For a start, they have a different attitude to their territory compared to the dynastic monarchies. It is semi-sacred and non-transferable. No nation would swap territory with another state simply, for example, because the king’s daughter married.”

This gives you an important idea of the differences between the old and the new way of thinking. The pre-national era in Europe wasn’t based around countries, but [around] ruling families. For example, one doesn’t normally think of Austria, the Netherlands and Spain having much in common. However, due to marriage alliances, they all ended up being ruled by the same man—Charles V (known as Charles I in Spain), from 1519 to 1556. That’s thirty-seven years. Imagine if Japan, Canada, and Denmark abruptly agreed to have a joint prime minister for the next 37 years. Up until World War I, when Europeans sat down to draw borders, they tended to be more concerned about making all the dynasties happy rather than any logical plan with respect to who actually lived where.

Talking History: The Italian Unification 1790-1870, Episode 2

Of course, everyone should know by now that the arrangement of sovereign states in the modern world, particularly in the Near East and Africa, was drawn up by European colonizers based on power relations, with nothing whatsoever to do with the nations that lived there, or the geography, or the history, or anything else. The impact of this on our modern world cannot be overstated!

In 1884 at the request of Portugal, German Chancellor Otto von Bismark called together the major western powers of the world to negotiate questions and end confusion over the control of Africa. Bismark appreciated the opportunity to expand Germany’s sphere of influence over Africa and desired to force Germany’s rivals to struggle with one another for territory.

The Berlin Conference was Africa’s undoing in more ways than one. The colonial powers superimposed their domains on the African Continent. By the time Africa regained its independence after the late 1950s, the realm had acquired a legacy of political fragmentation that could neither be eliminated nor made to operate satisfactorily. The African politico-geographical map is thus a permanent liability that resulted from the three months of ignorant, greedy acquisitiveness during a period when Europe’s search for minerals and markets had become insatiable. At the time of the conference, 80% of Africa remained under Native Traditional and local control.

How African Countries Got Their Borders (TYWKIWDBI)

Another prominent example is the Zomia region of Southeast Asia. This is a highland region the size of Western Europe containing up to 100 million people that have largely remained outside the control of territorial nation-states, and was examined by James C. Scott in his book, The Art of Not Being Governed. Many of the tribal nations in this region stand apart from the nation-states they nominally occupy. As Scott points out, if the entire existence of H. Sapiens is seen as a single day, then most people have been living under state control only in the last five minutes or so.

Taleb, as we saw above, argues that ethics are something inherently local; a point he makes concerning the ethics of economic transactions. In this, he makes the distinction between laws and ethics, or, we might say, a distinction between formal laws and ethical behavior:

The question “Is it ethical to sell something to someone knowing the price will eventually drop?” is an ancient one…the debate goes back to a disagreement between two Stoic philosophers, Diogenes of Babylon and his student Antipater of Tarsus…Assume a man brought a large shipment of corn from Alexandria to Rhodes because of shortage and famine. Suppose that he also knew that many boats had set sail from Alexandria on their way to Rhodes with similar merchandise. Does he have to inform the Rhodians? How can one act honorably or dishonorably in these circumstances?

Diogenes held that the seller ought to disclose as much as civil law requires. As for Antipater, he believed that everything ought to be disclosed—beyond the law—so that there was nothing that the seller knew that the buyer didn’t know.

Clearly Antipater’s position is more robust—robust being invariant to time, place, situation, and color of the eyes of the participants…We traders had a straightforward answer…an upright trader will not do that to other professional traders…There were some people with whom we had a relational rapport, others with who we had a transactional one. The two were separated by an ethical wall, much like the case with domestic animals that cannot be harmed, while rules on cruelty are lifted when it comes to cockroaches…Indeed much of the work of investment banks in my day was to play on regulations, find loopholes in the laws. And counterintuitively, the more regulations, the easier it was to make money.

Take for now that: The ethical is always more robust than the legal. Over time, it is the legal that should converge to the ethical, never the reverse.

Hence:

Laws come and go; ethics stay.

Thus we see that tribal societies had their own code of conduct, and were self-governing. One of the largest tribally-organized societies still in existence to this day are the Pashtun people. Note that there is no Pashtun territoriality-based state; Pashtunistan is not a self-governing nation-state by our modern legal standards. They are instead dispersed mainly between the lands of the modern-day territorial-based nation-states of Pakistan and Afghanistan. But they largely “govern” themselves through various means, as Dmitry Orlov describes in his book The Five Stages of Collapse:

The term “ungoverned” is, as usual, misapplied here: the Pashtuns have an alternative system of governance whose rules preclude the establishment of any centralized authority. At over forty million strong, they are one of the largest ethnic groups on the planet…Their ancient and eternal code of conduct is Pashtunwali, or “The Pashtun Way.” The reason for following Pashtunwali is to be a good Pashtun. In turn, what a good Pashtun does is follow Pashtunwali…Needless to say, the Pashtuns cannot be seduced with offers of social progress and economic development, because that is not the purpose of Pashtunwali. The purpose of Pashtunwali is the perpetuate Pashtunwali, and at this it is apparently very good.

Pashtun society is classified as segmentary, a subtype of acephalous (leaderless). The main figures of authority are the elders (maliks) whose serve a local tribal chief (khan), but their leadership positions remain at all times contingent on putting the tribe’s interest first. All decision making is consensus-based, severely restricting the scope of unlimited action. However, when faced with an external threat, the Pashtuns are able to appoint a dictator, and to serve that dictator with absolute obedience until the threat is extinguished.

Pashtunwali defines the following key concepts: honor (nang) demands action regardless of consequences whenever Pashtunwali is violated. It is permissible to lie and kill to protect one’s nang. Revenge (badal) demands “an eye for an eye” in case of injury or damage, but crucially allows payment of restitution to avoid bloodshed. Incarceration is considered unacceptable under any circumstances. It is seen as interfering with justice, since it complicates the process of exacting revenge and precludes the payment of restitution. This is why Afghanistan has been the scene of spectacular prison escapes, where hundred of inmates are freed in a military-style attack; the attackers’ goal is not just to free prisoners but also to kill them later or collect restitution from them. The law of hospitality (nanawatai) demands that any Pashtun must welcome and provide sanctuary to anyone who asks for it. As a matter of nang, the guest must be kept perfectly secure and safe from all harm while a guest. Once over the threshold and no longer a guest, he can he sniped at one’s leisure should such an action be called for. Laws against harboring fugitives, serving as accessory after the fact, impeding official investigations and so forth are meaningless and attempts to enforce them automatically result in badal.

The local Pahstun governing body is the jirga, which is convened only on special occasions. It takes its roots from Athenian democracy, although some scholars argue that it predates it. The participants arrange themselves in a circle, and everyone has the right to speak. There is no one presiding, in accordance to the principle that no one is superior in the eyes of the Pashtunwali. The decision is based on a majority consensus. Those who defy the decision of the jirga open themselves up to officially sanctioned arson and murder. It is significant that the jirga does not allow representation: it is a direct rather than a representative democracy. It is also crucial that the jirga reserves the right to abnegate any agreement previously entered into, making treaty-based state-legal relations with the Pashtuns impossible. Lastly, only those who follow Pashtunwali can participate in a jirga; all outsiders are automatically excluded. pp. 189-192

Thus we see that this fractal insider/outsider arrangement is how ancient society functioned in the absence of large, abstract, impersonal structures. This also allowed for management of economic resources that did not fall into our modern Liberal “public/private,” “statist/collectivist” dichotomy:

Universal behavior is great on paper, disastrous in practice. Why? As we will belabor ad nauseam in this book, we are local and practical animals, sensitive to scale. The small is not the large; the tangible is not the abstract; the emotional is not the logical. Just as we argued that micro works better than macro, it is best to avoid going to the very general when saying hello to your garage attendant. We should focus on our immediate environment; we need simple practical rules…In other words, Kant did not get the notion of scaling–yet many of us are victims of Kantian universalism. (As we saw, modernity likes the abstract over the particular; social justice warriors have been accused of “treating people as categories, not individuals.”) Few, outside of religion, really got the notion of scaling before the great political thinker Elinor Ostrom…p. 21

Let us get into the gut of Ostrom’s idea. The “tragedy of the commons,” as exposed by economists, is as follows–the commons being a collective property, say, a forest or fishing waters or your local public park. Collectively, farmers as a community prefer to avoid overgrazing, and fishermen overfishing–the entire resource becomes thus degraded. But every single individual farmer would personally gain from his own overgrazing or overfishing under, of course, the condition that others don’t. And that is what plagues socialism: people’s individual interests do not quite work well under collectivism. But it is a critical mistake to think that people can function only under a private property system.

What Ostrom found empirically is that there exists a certain community size below which people act as collectivists, protecting the commons, as if the entire unit became rational. Such a commons cannot be too large. It is like a club. Groups behave differently at a different scale.

This explains why the municipal is different from the national. It also explains how tribes operate: you are part of a specific group that is larger than the narrow you, but narrower than humanity in general. Critically, people share some things but not others within a specified group. And there is a protocol for dealing with the outside. Arab pastoral tribes have firm rules of hospitality toward nonhostile strangers who don’t threaten their commons, but get violent when the stranger is a threat.

The skin-in-the-game definition of a commons: a space in which you are treated by others the way you treat them, where everyone exercises the Silver Rule.

The “public good” is something abstract, taken out of a textbook…the “individual” is an ill-defined entity. “Me” is more likely to be a group than a single person. pp.60-61

Taleb argues that the “Silver Rule” is more robust in ordering the social behavior towards insider and outsiders than the more well-known “Golden Rule” of the salvationist world religions. It is ultimately anchored in the primordial law of reciprocity. Taleb describes the Silver Rule this way:

Leviticus is a sweetening of Hammurabi’s rule. The Golden Rule wants you to Treat others the way you would like them to treat you. The more robust Silver Rule says Do not treat others the way you would not like them to treat you…Why is the Silver Rule more robust? We know the wrong better than what’s right; The good is not as good as the absence of the bad, Ennius, reported by Cicero. p. 151

Now a word about the “others” in treat others. “You” can be singular or plural…Same with the “others.” The idea is fractal, in the sense that it works at all scales: humans, tribes, societies, groups of societies, countries, etc., assuming each one is a separate standalone unit and can deal with other counterparts as such. Just as individuals should treat others the way they would like to be treated (or avoid being mistreated), families as units should treat other families in the same way…And…so should countries…for Isocrates, the wise Athenian orator, warned us as early as the fifth century B.C. that nations should treat other nations according to the Silver Rule. He wrote:

“Deal with weaker states as you think it proper for stronger states to deal with you.”

Nobody embodies the notions of symmetry better than Isocrates, who lived more than a century and made significant contributions when he was in his nineties. He even made a rare dynamic version of the Golden Rule: “Conduct yourself toward your parents as you would have your children conduct themselves towards you.” We had to wait for the great baseball coach Yogi Berra to get another such dynamic rule for symmetric relations: “I go to other people’s funerals so they come to mine.” pp. 19-20

So it appears that a commons can indeed work in the absence of private property, state ownership, or “free and open” markets, and the like, as long as it is below a certain scale and all parties possess some “skin in the game.” In fact, it appears that this is how many resources did work for much of human history! That’s why the constant debate over whether the ancient world was more capitalist, or more socialist, miss the point: it was neither! We constantly filter the ancient world through our modern sensibilities, a classic “Flintstonization” of history–projecting modern assumptions and beliefs onto earlier societies. This leads to all sorts of absurd conclusions, like the entire world was just waiting to develop capitalism and the industrial revolution, and that these represent the Omega Point of the historical process. I don’t think that’s likely.

We’ve been taking stock over the last few weeks at how the ancient world prior to the modern Nation-State was organized—as a collection of various families, groups, factions, cliques, solidalities, fraternities, associations, colleges, cults, regiments, companies, cohorts, etc., all loosely managed by hierarchical networks of elites. The most common of these forms was the tribe, which was based around imagined descent from a common ancestor. Eventually tribes became nations, and later states, but that’s another story. “The Individual” was a rare breed, and was created as a legal fiction mainly for contractual obligation purposes as literacy became more widespread and trade more extensive in the Renaissance and Early Modern period. “The Individual” first appeared in Roman Law, and then disappeared with the dissolution of the Western Empire, only to return emphatically during the modern era. In his study of the sources of social power, Michael Mann puts it succinctly on page 52: Societies are actually federations of organizations.

Prior to contracts, economic production in advanced societies was organized mainly on a household basis, with markets being secondary appendages, and tightly regulated by governing authorities. Early tribal elites presided over the redistribution of surpluses (redistributive chiefs); eventually being supplanted in this role by just issuing coins and demanding taxes back in return, which allowed decentralized exchange to take place. They then skimmed off the surplus of the resulting commercial expansion. The lord’s expenditures were mostly relegated to lawgiving and military affairs (along with luxury goods and image-building). Most day-to-day economic production was undertaken within the extended household, often by slaves in the Classical world. The word family, in fact, comes from the term for a domestic slave—your “family size” was based on the number of slaves you controlled. Markets were confined to goods that had a high bulk-to-value ratio (e.g. cloth, spices) or were “self-propelled” (i.e. slaves and livestock). States were not territorially-based, but centered around loyalty to a particular ruling family, and the household of that ruling family essentially formed the “government,” such as it was. Government was very minimal at this time, again, because it was not organized around a collection of unrelated individuals, nor around “free markets,” but rather around collections of households, families, and other groups (guilds, etc.)

This was, in effect, a “fractal” organization of society. It allowed for the daily functioning and cooperation in the absence of the large-scale organizational structures (political and economic) provided by the modern industrial nation-state. The emergence of the nation-state out of this fractal organization was taken to the furthest extent in Western Europe, especially in England, which had a fairly centralized bureaucracy as far back as the Norman conquest. It appears that the need to fund war and maintain standing armies played a crucial role in the establishment of the nation-state. Technology, especially in communications and transport, also played a decisive role, especially after the First Industrial Revolution (iron, factories & steam engines).

Sir Henry Sumner Maine came to this conclusion in his book Ancient Law. These paragraphs from the first chapter of the book give a good account of his major thesis. I’ve condensed and cleaned up his prose a bit. See the link for the original:

If I were attempting…to express…the characteristics of the situation in which mankind [find] themselves at the dawn of … history, I should …quote a few verses from the Odyssey of Homer:

“They have neither assemblies for consultation nor themistes, but every one exercises jurisdiction over his wives and his children, and they pay no regard to one another.”

These lines are applied to the Cyclops, and…I suggest that the Cyclops is Homer’s type of an alien and less advanced civilisation; for the almost physical loathing which a … community feels for men of widely different manners from its own usually expresses itself by describing them as monsters, such as giants, or even as demons.

However that may be, the verses [demonstrate] the hints which are given us by legal antiquities. Men are first seen distributed in perfectly insulated groups, held together by obedience to the parent. Law is the parent’s word, but it is not yet in the condition of those themistes…When we go forward to the state of society in which these early legal conceptions show themselves as formed, we find that they still partake of the mystery and spontaneity which must have seemed to characterise a despotic father’s commands, but that at the same time, inasmuch as they proceed from a sovereign, they presuppose a union of family groups in some wider organisation.

The next question is, what is the nature of this union and the degree of intimacy which it involves? It is just here that archaic law renders us one of the greatest of its services and fills up a gap which otherwise could only have been bridged by conjecture. It is…of the clearest indications that society in primitive times was not what it is assumed to be at present, a collection of individuals. In fact, and in the view of the men who composed it, it was an aggregation of families. The contrast may be most forcibly expressed by saying that the unit of an ancient society was the Family, of a modern society the Individual.

We must be prepared to find in ancient law all the consequences of this difference. It is so framed as to be adjusted to a system of small independent corporations. It …therefore…takes a view of life wholly unlike any which appears in developed jurisprudence. Corporations never die, and accordingly primitive law considers the entities with which it deals, i.e. the patriarchal or family groups, as perpetual and inextinguishable.

This view is closely allied to the peculiar aspect under which, in very ancient times, moral attributes present themselves. The moral elevation and moral debasement of the individual appear to be confounded with, or postponed to, the merits and offences of the group to which the individual belongs. If the community sins, its guilt is much more than the sum of the offences committed by its members; the crime is a corporate act, and extends in its consequences to many more persons than have shared in its actual perpetration. If, on the other hand, the individual is conspicuously guilty, it is his children, his kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him.

It thus happens that the ideas of moral responsibility and retribution often seem to be more clearly realised at very ancient than at more advanced periods, for, as the family group is immortal, and its liability to punishment indefinite, the primitive mind is not perplexed by the questions which become troublesome as soon as the individual is conceived as altogether separate from the group.

Ancient Law: Its Connection to the History of Early Society by Maine (Project Gutenberg)

To our modern post-Enlightenment sensibilities, the notion of “collective punishment” is abhorrent. So, too, is the idea that we are culpable for actions undertaken by family members or relatives. When people read about this in ancient societies, they are often shocked. But that’s only because they don’t understand how ancient society was fundamentally constituted.

As stated above, the basic unit of society (as far as law & governance were concerned at least) was not the individual, but rather the group to which the individual belonged. Thus, the punishment and sanction was applied to the entire group, and group members bore responsibility for all of their members. This meant that they were ‘self-policing.’ Also, punishment was not time-bound, and so groups could be held liable for the sins of their ancestors down through the generations; something totally alien to our modern point of view. This probably led to the ranked lineage structure, where some families held more or less prestige than others, a critical first step along the line to hereditary inequality and social rank.

A vivid example is the concept of wergild, (‘man-gold’) so common in the tribal societies of pagan Europe, where payments were made from one corporate group to another when an offense was committed by any one of its members. The payments were assessed according to a strict payment schedule, and overseen by chiefs, elders, or tribal councils (‘lord’ and ‘king’ are just European terms for a chief). According to some sources, these payments, and the scheduled equivalencies they were assessed according to, were the origin of money and prices. David Graeber writes:

Money, then, begins, …”as a substitute for life.’ One might call it the recognition of a life-debt. This, in turn, explains why it’s invariably the exact same kind of money that’s used to arrange marriages that is also used to pay wergeld (or “bloodwealth” as it’s sometimes also called): money presented to the family of a murder victim so as to prevent or resolve a blood-feud. …On the one hand, one presents whale teeth or brass rods because the murderer’s kin recognize they owe a life to the victim’s family. On the other, whale teeth or brass rods are in no sense, and can never be, compensation for the loss of a murdered relative. Certainly no one presenting such compensation would ever be foolish enough to suggest that any amount of money could possibly be the “equivalent” to the value of someone’s father, sister, or child.

So here again, money is first and foremost an acknowledgment that one owes something much more valuable than money…Debt: The First 5,000 Years; pp. 133-134

The reference to themistes above was a bit puzzling. A Google search turned up this passage from Money and the Early Greek Mind: Homer, Tragedy, and Philosophy by Richard Seaford, a book we looked at when we discussed the origins of money and coinage in the ancient Greek world:

…The key word is themistes, which men ‘judge’ in the agora. The savagery of the Cyclopes is expressed in their lack of ‘council-bearing agorai,’ and themistes. Themistes are a sign of civilization. The related word themis means (impersonal) established principle, and is associated explicitly with the public space of the agora…Themistes are not ad hoc judgements, but rather, as etymology suggests, something like ‘established norms’, used in the public settlement of disputes. We do not know where they stand on the spectrum between at one extreme laws (subject inevitably to personal interpretation, but orally transmitted in roughly the same form) and at the other extreme mere norms or customs (only vaguely, variously, or briefly formulated, and so dependent on personal reformulation for their judicial application). And yet they are certainly impersonal in two respects, firstly in that they are publicly applied not by a single person but by a group, and secondly in that being imagined as traditional they thereby stand in this sense at least above judges and the parties to the dispute.

…we can infer that in various city-states the relatively recent invention of alphabetic writing was used, at least from about the middle of the seventh century, to record publicly codes of law that were impersonal both in that they were uniformly binding on all citizens and in that they were decided on by the polis–or at least, if said to have been devised by an individual, were administered not by him but by the institution of the polis and were dependent for their authority on acceptance by the citizens who had appointed him. Indeed the distance between the archaic lawgiver and the laws is expressed in the lawgiver being frequently a political outsider or even a foreigner, as well as in stories about the lawgivers being subjected to their own laws…
pp. 178-180

So themistes is the mark of civilization—it’s what separated Classical Greek civilization from the barbarian hordes around them, personified by the monstrous Cyclopes—”primitive” societies where there was no such thing as impersonal law or collective justice. Following Maine, we may consider this the first “revolution” of ancient law—making justice impersonal, and subjected to reason and collective assent. Surely it is significant that this same Greek civilization was also the first European tribal society we know of to impersonalize debt as money in the form of precious metals. It was a social transformation destined to have profound consequences down the line.

Maine further argues that the only basis of political union in ancient times was the ‘shared fiction’ of descent from a remote common ancestor. This seems very limiting; however, this ancient ‘legal fiction’ was made flexible enough for large-scale social organization through the adoption of individuals into various tribes or families (fictive kinship), and the union of disparate families through bride exchange/intermarriage (affinal kinship). This is why political alliances in the ancient world were inevitably based around marriage. Such an arrangement lasted up until the Enlightenment—the ill-fated Austrian princess Marie Antoinette was married off to the King of France at age 13 in order to secure a political alliance between the Austrian ruling house (the Hapsburgs) and the French (the Bourbons) against the Prussians. To this day, most of European royalty is related (Queen Elizabeth’s husband is a distant cousin). Maine continues:

…[W]e could…suppose that communities began to exist wherever a family held together instead of separating at the death of its patriarchal chieftain.

In most of the Greek states and in Rome there long remained the vestiges of an ascending series of groups out of which the State was at first constituted. The Family, House, and Tribe of the Romans may be taken as the type of them, and they are so described to us that we can [conceive of] them as a system of concentric circles which have gradually expanded from the same point. The elementary group is the Family, connected by common subjection to the highest male ascendant. The aggregation of Families forms the Gens or House. The aggregation of Houses makes the Tribe. The aggregation of Tribes constitutes the Commonwealth…the Commonwealth is a collection of persons united by common descent from the progenitor of an original family.

Of this we may at least be certain, that all ancient societies regarded themselves as having proceeded from one original stock, and even laboured under an incapacity for comprehending any reason except this for their holding together in political union…It may be affirmed then of early commonwealths that their citizens considered all the groups in which they claimed membership to be founded on common lineage. What was obviously true of the Family was believed to be true first of the House, next of the Tribe, lastly of the State.

The Family then is the type of an archaic society in all the modifications which it was capable of assuming; but the family here spoken of is not exactly the family as understood by a modern…We must look on the family as constantly enlarged by the absorption of strangers within its circle, and we must try to regard the fiction of adoption as so closely simulating the reality of kinship that neither law nor opinion makes the slightest difference between a real and an adoptive connection…It is this patriarchal aggregate—the modern family thus cut down on one side and extended on the other—which meets us on the threshold of primitive jurisprudence. Older probably than the State, the Tribe, and the House, it left traces of itself on private law long after the House and the Tribe had been forgotten, and long after consanguinity had ceased to be associated with the composition of States.

The composition of the state, uniformly assumed to be natural, was nevertheless known to be in great measure artificial. This conflict between belief…and…fact is at first sight extremely perplexing; but what it really illustrates is the efficiency with which Legal Fictions do their work in the infancy of society. The earliest and most extensively employed of legal fictions was that which permitted family relations to be created artificially, and there is none to which I conceive mankind to be more deeply indebted. If it had never existed, I do not see how any one of the primitive groups, whatever were their nature, could have absorbed another, or on what terms any two of them could have combined, except those of absolute superiority on one side and absolute subjection on the other.

So, in Maine’s estimation, the ‘legal fiction’ of adoption is what allowed larger, more complex societies to form out of smaller tribal ones (I would add bride exchange as well). For example, we see that when Europeans ran away to join the Native Americans in Colonial America, they were not granted “citizenship” (it didn’t exist) but rather were adopted into an existing clan. Their rights, duties, and interpersonal obligations then followed from that clan affiliation, and not from things like contracts, free markets or citizenship. By contrast, our modern states are territorially based. The idea that people should have some sort of ongoing interpersonal relationship merely because they lived in close geographical proximity to each other was totally foreign to ancient sensibilities, as Maine points out:

No doubt, when with our modern ideas we contemplate the union of independent communities, we can suggest a hundred modes of carrying it out, the simplest of all being that the individuals comprised in the coalescing groups shall vote or act together according to [proximity]; but the idea that a number of persons should exercise political rights in common simply because they happened to live within the same topographical limits was utterly strange and monstrous to primitive antiquity. The expedient which in those times commanded favour was that the incoming population should feign themselves to be descended from the same stock as the people on whom they were engrafted; and it is precisely the good faith of this fiction, and the closeness with which it seemed to imitate reality, that we cannot now hope to understand.

One circumstance, however, which it is important to recollect, is that the men who formed the various political groups were certainly in the habit of meeting together periodically, for the purpose of acknowledging and consecrating their association by common sacrifices. Strangers amalgamated with the brotherhood were doubtless admitted to these sacrifices; and when that was once done we can believe that it seemed equally easy, or not more difficult, to conceive them as sharing in the common lineage. The conclusion then which is suggested by the evidence is, not that all early societies were formed by descent from the same ancestor, but that all of them which had any permanence and solidity either were so descended or assumed that they were.

Even when institutions formed based around factors other than blood relationships, for example, occupational categories or religious affiliation, they took the basic form of the extended family as Lujo Brentano— the first historian of European guilds—explains:

There remains, in conclusion, to state briefly the chief result of this inquiry. The family appears as the first Gild, or at least an archetype of the Gilds. Originally, its providing care satisfies all existing wants; and for other societies there is therefore no room. As soon however as wants arise which the family can no longer satisfy—whether on account of their peculiar nature or in consequence of their increase, or because its own activity grows feeble—closer artificial alliances immediately spring forth to provide for them, in so far as the State does not do it. Infinitely varied as are the wants which call them forth, so are naturally the objects of these alliances.

Yet the basis on which they all rest is the same: all are unions between man and man, not mere associations of capital like our modern societies and companies. The cement which holds their members together is the feeling of solidarity, the esteem for each other as men, the honour and virtue of the associates and the faith in them not an arithmetical rule of probabilities, indifferent to all good and bad personal qualities. The support which the community affords a member is adjusted according to his wants not according to his money-stake, or to a jealous debtor and creditor account; and in like manner the contributions of the members vary according to the wants of the society, and it therefore never incurs the danger of bankruptcy, for it possesses an inexhaustible reserve fund in the infinitely elastic productive powers of its members. In short, whatever and however diverge may be their aims, the Gilds take over from the family the spirit which held it together and guided it: they are its faithful image, though only for special and definite objects.

The first societies formed on these principles were the sacrificial unions, from which, later on, the Religious Gilds were developed for association in prayer and good works. Then, as soon as the family could no longer satisfy the need for legal protection, unions of artificial-family members were formed for this purpose, as the State was not able to afford the needful help in this respect. These Gilds however had their origin in direct imitation of the family. Most certainly, none were developed from an earlier religious union: as little as were the Roman collegia opificum from the Roman sacrificial societies, or the Craft-Gilds from the Gild-Merchants, or any Trade-Unions from a Craft-Gild. p.16

On the history and development of gilds, and the origin of trade-unions (Archive.org)

Eventually, of course, people dropped the “shared fiction” pretense of common descent and formed political and economic institutions based on territoriality, occupation, religion, or propinquity. Kinship ceased to matter very much at all, replaced by “modern” notions of citizenship and individualism.

The big question this raises is: How exactly did this happen? Well, nobody knows for sure. All we know for sure is that it did happen, and we are living in that world. It likely happened over a fairly long time span. We know that in the ancient Greek world, for example, there must have been a large number of “kinless” individuals–metics, who were foreign laborers, and slaves. Sailors and mercenaries, too, we can assume, were composed largely of individuals living outside any family or kinship structure. Such people did indeed depend on money and markets for their livelihood—mercenary soldiers appear to have been among the first people regularly paid for their services with bullion currencies, and chattel slaves appear to be among the first commodities bought and sold in “free markets.”

Maine argues that this led to the next iteration of government which supplanted chiefs and tribal councils—aristocracy, or rule by elite noble families. Aristocracy supplanted consanguinity. Wikipedia defines aristocracy as “a form of government that places strength in the hands of a small, privileged ruling class. The term derives from the Greek aristokratia, meaning “rule of the best-born”. As Engels put it, the primary social relationships transitioned from being kinship based to becoming class based as society’s “productive powers” and specialization of labor increased. Clearly, sedentism, money, and trade all played crucial roles in this transition.

One thing seems fairly certain: that cities played an essential role in this process. Cities were spaces ‘demarcated’ (i.e. set apart) from the surrounding countryside where people organized themselves according to kinship. In cities, unrelated people came together to conduct trade and interpersonal exchange. Money was minted by the city-state, stamped with its seal, and distributed by its temples. While rural farmland was passed down through the generations in families (genē), it was in the cities that the first real estate markets formed. Here, land was owned by merchants, craftsmen, artisans and politicians, rather than farmers. This is also where market relations took place in the agora, which doubled as space for political assembly and themistes. It was within the city-state that people were first organized into administrative districts called demes by the constitutional reformers during the fourth and fifth centuries B.C.E. Here we see place of residence (deme) become more politically important than family ties (hence “democracy”). This change takes place throughout the ancient Greek city-states in this time period.

While social organization on the land remained kinship‑based, that of the cities became part of a higher and more cosmopolitan social ordering. Neolithic urban sites, for instance, seem to have begun as publicly demarcated spaces cut out from the surrounding land to provide evenhanded arms-length commercial contacts. This is something quite different from what occurred in classical antiquity…the classical city became more a center of government than of industry. The modern type of state developed out of the communal sector as a whole rather than out of the temples as a corporately distinct public sector.

The urban shift away from family‑oriented to territorial space began with temple cults. Individuals were initiated into corporate groupings that replaced their biological families. Paternal authority and family structures were transposed onto the public plane in the form of temple and palace households, cults and professional guilds.

Over a century ago the American anthropologist Lewis Henry Morgan’s Ancient Society (1878) placed civilization’s urban watershed in the sixth century BC. He focused on the reforms of Cleisthenes in Athens (509/07) and Servius in Rome (537) as replacing the clannish family contexts, based on rural landholding, with neighborhood political units. Toynbee (1913) followed with a similar analysis for Sparta’s changes in the seventh century BC. Subsequent archaeologists have established that cities were organized on a district or “ward” basis thousands of years earlier. Already in Bronze Age Mesopotamia and Egypt each local area took responsibility for maintaining its irrigation dikes and canals.

Assyriologists have noted that early Mesopotamian rulers downplayed their family identity by representing their lineage as deriving from the city‑temple deities. Sargon of Akkad, often taken as a prototype for the myth of the birth of royal heroes (including Moses and Romulus) emphasized his “public family.” In any event archaic clan groupings seem to have been relatively open to newcomers. There is little Bronze Age evidence for closed aristocracies of the sort found in classical antiquity. Mesopotamia seems to have remained open and ethnically mixed for thousands of years, and the Sumerians probably incorporated strangers as freely as did medieval Irish feins and many modern tribal communities.

From Sacred Enclave to Temple City (Michael Hudson)

Although the details are unclear, we do know that this process had reached its final stage during the centuries in which the Roman Empire ruled the Mediterranean. The Empire ruled over huge amounts of unrelated peoples. It was also fabulously rich by ancient standards. It had extensive markets, banking, and sophisticated legal systems. Roman law and religion ‘supplanted’ local and tribal laws and customs. Sometimes this led to conflict, as illustrated concretely by the life of Christ detailed in the Bible. There we see that Roman law “trumped” Jewish law, and the local king (Herod) was a puppet client of the Roman state, which was overseen by a Roman governor (Pontius Pilate). Jesus’ enemies appeal to the Roman state for his execution. Later in history, rebelling against this order caused the Jewish state to be utterly destroyed and Jerusalem razed in 70 AD.

An indefinite number of causes may have shattered the primitive groups…At some point of time—probably as soon as they felt themselves strong enough to resist extrinsic pressure…all these states ceased to recruit themselves by factitious extensions of consanguinity. They necessarily, therefore, became Aristocracies, in all cases where a fresh population from any cause collected around them which could put in no claim to community of origin.

Their sternness in maintaining the central principle of a system under which political rights were attainable on no terms whatever except connection in blood, real or artificial, taught their inferiors another principle…the principle of local contiguity, now recognised everywhere as the condition of community in political functions. A new set of political ideas came at once into existence, which, being those of ourselves, our contemporaries, and in great measure of our ancestors, rather obscure our perception of the older theory which they vanquished and dethroned.

The history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions; [there is no]…[revolution]…so startling and so complete as the change which is accomplished when some other principle—such as that, for instance, of local contiguity—establishes itself for the first time as the basis of common political action…In one all-important instance, that of the Roman law, the change was effected so slowly, that from epoch to epoch we can observe the line and direction which it followed, and can even give some idea of the ultimate result to which it was tending. And, in pursuing this last inquiry, we need not suffer ourselves to be stopped by the imaginary barrier which separates the modern from the ancient world. For one effect of that mixture of refined Roman law with primitive barbaric usage, which is known to us by the deceptive name of feudalism, was to revive many features of archaic jurisprudence which had died out of the Roman world, so that the decomposition which had seemed to be over commenced again, and to some extent is still proceeding…

Ancient Law: Its Connection to the History of Early Society by Maine (Project Gutenberg)

The barbarians who migrated into Roman territory and sacked their cities in the first few centuries C.E. were organized primarily on a tribal basis. This is obvious from the various Germanic and Celtic law codes that were written down and preserved, and which formed the basis for Maine’s studies. The Roman Empire, however, had long since lost its initial tribal identity centered around the Gens (what Marx and Engels called the Gentile Constitution). By this time it had become thoroughly class-based, certainly by the time Justinian’s legal scholars compiled the Corpus Juris Civilis, which profoundly affected subsequent legal thought in Western Europe.

We talk about the transition to a class-based society, but what, exactly, are classes, anyway? We use the word regularly, and we instinctively know what it means, but how do sociologists define it? According to Michael Mann in his three-volume opus, Sources of Social Power, ancient Greece was the earliest society where we have clearly recorded instances of extensive class conflict. He writes:

Classical Greece is the first historical society in which we can clearly perceive class struggle as an enduring feature of social life. To understand this better, one can distinguish between the principal forms of class structure and class struggle found in human societies.

Classes in the broadest sense are relations of economic domination. The sociologist of class is principally interested not in inequalities of wealth but, rather, in economic power, that is, in persons’ ability to control their own and others’ life chances through control of economic resources – the means of production, distribution, and exchange.

Inequalities in economic power have existed in all known civilized societies. As they are never fully legitimate, class straggle has also been ubiquitous – that is, struggle between groups arranged hierarchically, “vertically,” with different amounts of economic power. In many societies, however, this struggle has remained at a first, latent, level and been prevented from attaining any very pronounced organizational form by the coexistence alongside “vertical” classes of “horizontal” economic organizations – constituted by familial, clientelist, tribal, local, and other relations. We saw these to be characteristic of later prehistory and, to a lesser extent, of the earliest civilizations…

This brings us to the second level of class organization, extensive classes. They exist where vertical class relations predominate in the social space in question as against horizontal organizations. The growth of extensive classes has itself been uneven, and so at this second level we may make two further subdivisions. Extensive classes may be unidimensional, if there is one predominant mode of production, distribution, and exchange, or multidimensional, if there is more than one (and they are not fully articulated with each other). And extensive classes may by symmetrical, if they possess similar organization, or asymmetrical, if one does or only some do (normally the dominant class or classes).

Finally, a third level of class emerges, political classes, where the class is organized for political transformation of the state or political defense of the status quo. This is less likely in a thoroughly multidimensional structure, but again the political organization may be symmetrical or asymmetrical. In the latter case only one class, usually the ruling class, may be politically organized. This began to be the pattern in the empires of domination…as dominant groups began to unify into an extensive, organized ruling class while subordinates were predominantly organized into horizontal groupings controlled by the rulers.

These distinctions are especially useful in the case of classical Greece. It is the first known society to have moved fully into the third level of class organization, exhibiting to us symmetrical, political class struggle (though only on one of what we shall see to be two principal dimensions of its extensive class structure).

Classes did not totally dominate relations of economic power in Greece. Two principal horizontal groupings remained that effectively excluded large numbers of persons from the class struggles…The first was the patriarchal household…The second horizontal grouping was the local city-state itself, which privileged its own inhabitants at the expense of all resident “foreigners.” As the city-state was small and interaction between states was great, there were many resident foreigners. These were mostly other Greeks but included many other “nationalities.” They were called metics, and they had definite political rights somewhere between those of citizens and those of serfs and slaves…Like women, metics were actually divided by their supposedly common status. They organized themselves only on rare occasions. So only a minority of the population engaged directly in class struggle… pp.216-218

When the Germanic and Celtic tribal societies melded with the class based societies of the Classical world, we get the curious society of Late Antiquity and the Middle Ages—an ad hoc melding of both contractual obligations and petty household production. Contractual obligations between various warlords formed the centerpiece of the overarching political structure—the Feudal System. Economic production, however, was highly collectivized and organized around the local Roman villa, or manor–the Manorial System. Mediating all of this was not a territorial empire but a spiritual one—the Roman Catholic Church.

Feudalism combined kinship forms in the village and the manor, and contractual relationships among the ruling classes (vassalage). Above and apart from all of this was the hierarchically organized Catholic Church operating across ethnic and national boundaries as a sort of international quasi-corporation. Eventually, tribal and kinship structures were broken up and atrophied, particularity in post-Norman England Some argue that the Church played a crucial role in this process. Brentano has the best short summary I’ve ever come across:

Though in more ancient times the family connection was strong, and of importance in various ways, as in the maintenance of justice, in the formation of the nations, and in its first settlement, nevertheless, after this settlement had taken place, the relations which it called forth obtained the preponderance. The natural bond of the family became more and more relaxed with the increase in number of relatives, and with the rise of special interests among the individual members; and would also lose its importance as regards the maintenance of justice. Moreover, the constantly increasing number of kinless people, and of strangers, would further the formation of new institutions; for the State alone was not at that time able to satisfy its members’ claims for legal protection.

This chance had, above all, to take place in the Anglo-Saxon States through the intermixture of people with Britons and Danes. Here, artificial alliances would take the place of natural ones, and of the Frankpledge founded thereon. Already in passages of Ina’s statutes which refer expressly to the legal protection of the stranger, mention is made of “gegildan” and “gesid;” and strangers are the very people who, we are told, lived, later on, in societies or Gilds, to which probably a great antiquity must be ascribed. p.10

Thus, in Western Europe, the ancient order once again was gradually supplanted by civil society, mediated by public institutions and quasi-voluntary contracts, eventually culminating in the nation-state, as during the late Roman Empire. This process began during the Renaissance, and accelerated during and after the Age of Enlightenment. Yet, as Europeans ventured out during the colonial period in search of trade goods and other commodities, they came into contract with societies all around the world which still organized themselves under the primordial social arrangements detected by Maine in Ancient European tribal law—cultures inn North and South America, the Indian subcontinent, Asia, Africa, the Pacific, Australia, and beyond.

Today, the nation-state comprised of unrelated individual “citizens” united by an implicit social contract and common law is the dominant social order around the entire world. It is this social order which Fukuyama assumed to be the “final” form that human society had been heading towards all along—the so-called “End of History.” But is it truly? We’ll ponder that question next time.