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From Morality to Law: The Role of Kinship, Tradition and Politics

Abstract

To address whether culture is biological, we document differences between the system of behavioral codes found in kinship-based societies, which resemble those of our distant ancestors, and the behavioral code found in the early state. One key difference is the “axiom of kinship amity” found in kinship-based societies: altruism was to be provided to all co-descendants; self-interest serving was limited. Evolutionary psychology may be unable to explain this system of behavioral codes; however, as this system is widespread, we should recognize that cultural traditions can have a powerful influence on behavior.

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From Morality to Law: The Role of Kinship, Tradition and Politics

Introduction

The root of the word politics is Greek, coming from the word polis, which refers to a town of some size with walls; Greek word polites refers to a townman. While this origin implies that politics has something to do with groups of individuals, beyond that, politics seems to often refer to methods, including the use of power, for influencing the behavior of those individuals (Grandz & Murray, 1980) and their participation in civic affairs (Bourque & Grossholtz, 1974). Thus, theories of political behavior are aimed at explicating the influences that define an individual’s behaviors, opinions, and participation in civic society. To better understand the function of early political systems, we use the cross-cultural record to examine the transition between the system of behavioral rules of conduct that is found in societies that seem to more closely resemble those of our very distant ancestors and the system found in the early state.

While both law and morals encourage certain behaviors that presumably would not occur without them, and discourage behaviors that, with some probability, would occur without them (see Jones & Goldsmith, 2005), the proposal tested here is that the behavioral rules of conduct and the systems that support them that are found in more traditional societies are aimed at promoting enduring, cooperative relationships among individuals who are identified as kin through common ancestry. While early anthropologists referred to this system as primitive law, we prefer the terms moral system when referring to kinship-based systems that promote enduring and cooperative relationships. Moral systems, so defined, are significantly different from the systems of behavioral codes found in a polis — that is, in societies in which the majority of interactions are with non-kin, interactions often center on the exchange of goods and services — and traditions have largely been broken down. We refer to this second system, which is based on concepts of justice and fairness, as a system of law (Jones, 1997).

We use the descriptions of moral and legal systems to build the hypothesis that the source or model for the earlier systems was the hierarchical relationship between a mother and child. It may be true that mothers themselves may or may not have created the first moral systems; however, as we explain, the system itself appears to have been modeled on maternal behavior. As Edel and Edel (1957: 34) argue in their cross cultural study, “Mother take care of your child” is a “universal imperative.” While anthropologists have reported some variation in mothering behaviors, mothering behaviors are held to be so important that they are seen cross-cultural to generate moral sentiments and to have an “absolute structuring effect on morality, serving as the foundation for restrictions and positive ideas and values” (ibid).

In contrast, the model for the later systems of behavioral codes that were found in nontraditional societies was the relationship between individuals who were unrelated, who shared no common ancestry or traditions, but who for some reason or another had to interact in a way that is of mutual benefit. A trade relationship that is a short-term relationship that has the potential to be mutually beneficial is an example of a legal relationship.

Traditional Societies and Nontraditional Societies

Nearly anywhere you look in the anthropological literature you will see references to “traditional” societies. The mere use of this term implies that in the midst of the seeming chaos of cultural diversity in the world, there exists a recognizable dichotomy between traditional societies and nontraditional societies. Although this dichotomy is obviously actually a continuum, we suggest that when terms are carefully defined it is a useful place from which to approach the cross-cultural study of rules of conduct.

We will define traditional societies as those in which cultural behaviors tend to have been copied from ancestors for many generations. These copied behaviors included not only the rituals that are recognized as being stereotyped and repeated from one generation to the next, but also the everyday behaviors related to subsistence, and most importantly, social interaction. As all humans lived in traditional societies until the last few thousand years, even long after the development of agriculture, societies still referred to as traditional resemble in fundamental ways those earlier societies (see discussion in Coe, 2003, Palmer, 2010). Such societies typically consist of individuals identified as being kin to one another by virtue of being perceived as descended from common ancestors. Although some traditional societies are small, the tradition of passing descent names from ancestors to descendants over many generations enables some traditional societies to become very large as large numbers of kin are identified explicitly. As van den Berghe and Barash explain, unilineal descent “can be seen as a cultural adaptation enabling up to millions of people to organize” (1977:404). Among the Tiv, for example, “the whole population of some 800,000 traces descent by traditional genealogical links from a single founding ancestor” (Keesing 1975: 32-33; see also Evans-Pritchard 1951:29).

Kinship was held as being so important in traditional societies that when interactions had to occur between unrelated individuals, rituals, such as the Calumet of the Plains tribes, were followed that converted those strangers into metaphorical kin (Wood 1980; Bruner 1961). The calumet involved a “father-son” adoption ceremony and made it possible for individuals who came from tribes that had formerly been at war to trade in peace. “Plains Indian trade,” Bruner (1961:201) writes, “was accomplished by barter between fictitious relatives. From a larger perspective, a vast network of ritual relationships extended throughout the entire plains.”

Once those former outsiders were recognized as kin, cooperative interactions could occur and they could all begin to engage in trading relationships, including the exchange of children in marriage, which made the kinship metaphor a reality.

While traditions that dictate the use of descent names do make it possible to identify large numbers of individuals as kin, the mere identification of kin is not sufficient to account for cooperation. Other traditions that encourage enduring cooperation with those kin are necessary to produce the cooperative social relationships that form these individual kin into a society (Palmer and Steadman 1997; Coe, 2003). By enduring cooperation, we mean cooperation between individual that lasts over the lifetime and that then is transmitted to the children of the respective parties (Coe, 2003). Santos Granero (1991: 226) reported that tribal people such as the Peruvian Amuesha, regularly claim that “’yi’ (morality), which promotes such kinship responsibilities as love and generosity,” is crucial to the existence and perpetuation of harmonious and enduring social relationships. “Immoral” behaviors, in contrast, are those that are “antisocial,” demonstrating selfishness or “greediness or meanness” (Santos Granero, 1991: 226) in their “disregard for kinship duties and failure in one’s duties towards other fellow Amuesha” (Santos Granero, 1991: 45).

Traditions encouraging kinship and kinship-like cooperation and aimed at forming and maintaining enduring relationships among kin stand in contrast to legal codes that developed in non traditional early states that were made up of individuals who were non-kin and who developed codes aimed at protecting the rights of individuals and establishing justice or fairness in a dispute (Jones and Goldsmith, 2005: 439). Laws, Jones (1997: 167) writes, “define and protect individual rights” and “dispense justice.” We argue that individual rights and justice are often at the expense of enduring, cooperative relationships.

Nontraditional societies are those in which traditions have been replaced with cultural behaviors copied from people other than ancestors. Such societies typically consist of individuals who do not recognize each other as kin, either biologically or metaphorically. The earliest forms of nontraditional societies are often referred to as early nation states. Such early states typically included multiple kinship-defined traditional societies (e.g., a number of distinct tribes), and thus are vulnerable to splitting along these kinship divisions (van den Berghe 1979; Salter 2002). This required a fundamental change in the rules of conduct and the system supporting those codes, which we refer to as a transformation from moral codes to legal codes.

Definitions of Moral and Legal

In cross cultural studies the difficulty of defining the terms “laws” and “morals” (Radin 1953:114) has led to them frequently being used interchangeably. Irons (1991: 50), as one example, placed “morals, laws, and other types of rules” into one broad category he referred to as “morality” (see also Schwarz and Rosenbaum 1983: 24; Wines 1853: 396; Hoebel 1949:370). The terms, however, have quite distinct origins and may have quite different functions. Moral, according to most sources (Ayto, 1990), is derived from the Latin mõs (o/s mõr), which means “a way of carrying oneself, hence especially of behaving; a custom as determined by usage not law” (Partridge 1966: 212), and is a cognate of Old English mõd, which means spirit or courage (Bernhardt, 1988). The derived adjective, morality (moralis), was coined by Cicero as a translation of Greek ethikos, which meant proper behavior in a society. Law, on the other hand, came originally from the Germanic word lag (Ayto, 1990), which was changed to Old Islandic log (Old Norse lag, plural lagh), which meant decree, good order, or fate (Barnhardt, 1988). The English borrowed this term about 1200 AD to form the Late Old English lagu and the Middle English lawe, meaning stratum, share, or partnership (Ayto, 1990, Oxford Dictionary of English Etymology, 1966). The word legal comes from Latin lex, which stems from the Latin verb legere, meaning to bind or tie together that which was not previously joined (Ayto, 1990).

Although it is difficult to interpret these roots, moral seems to be the older term. Thus, we follow many historians of law who claim that morals may be the older form. Morals, wrote Coulanges (1864) and Gruter and Bohannan (1983: xvi) may be the more “ancient codes” out of which law has developed. Morals, Diamond (1951) claimed may represent the infancy of law. Further support for the claim that moral systems may be older is the distinction made that laws are “ethics written down” (Alexander, 1987: 184) and that the moral judgments of a population shape legal standards (Gruter & Bohannan, 1983: xv). As morals appear to be the more ancient system of behavioral codes, they would have been the system of codes existed during the long period when all humans lived in traditional societies of kin. We suggest it is for this reason that the oldest codes are said to involve more “benevolent principles” (Ghoshal, 1889: 25) and to facilitate more enduring relationships, while more punitive systems tend to disrupt enduring social relationships (Coe, 2003).

Although early anthropologists referred to the systems of behavioral codes in traditional societies as primitive law, there are, as this paper discusses, a number of reasons why law may be an inappropriate term to use. Laws and the legal systems that surround them are associated with social systems in which kinship ties are disrupted (Hoebel, 1949). Laws appear to be related to the formation of partnerships, or new social relationships, between individuals who are “associated in some action or endeavor” (Webster’s Encyclopedic Unabridged Dictionary, 1989: 1052). The function of law, as explained by Maccauley (1963), may be primarily to build and keep, for a period of time, negotiations, or business relationships, which tend to be neither close nor enduring. As was discussed earlier, Legere, the root word of legal, means to bind together something that was not already connected.

While, “the meaning of ‘law’ is frustratingly protean, shifting by usage and user” (Jones, 1997: 167), the earliest codes referred to as laws (e.g., the laws of Moses) were formulated to guide relationships in a group of individuals having distinct cultural origins (Wines, 1853). Although family social relationships (and the often unspoken behavioral codes that encourage those relationships) can be mandated or made into law, the social relationships themselves are not legal relationships. As Grotein (1928:128) pointed out, “Whatever the relationship was that existed between one member of a family and another, it certainly was not a legal relationship.”

Although there are distinct differences between morals and law, both are characterized by having a body of precedents, some process for teaching the system to others, a process for encouraging or discouraging legislative enactment, a collection of norms, and a process by which those norms are enforced and punishment occurs (see Jones, 1997). Using these characteristics, we will now describe the normative system of kinship-based societies, which we will, for the purposes of this paper refer to as moral systems, and compare it with the system of laws found in the emerging state.

Moral and Legal Systems

Source and Scope of Moral and Legal Codes

Source of the codes in kinship-based societies. Most scholars would agree that practice of having and enforcing behavioral codes is ancient and that the origin of these codes and the system that enforces them was our ancestors, who “from time immemorial,” were the “primitive custodians of the unwritten, uncodified, unclassified rules of conduct” (Rattray 1929:3). Primitive law was ancestral: “All of it [primitive law],” Culwick and Culwick (1935:8) write, “is neither more nor less than the rules of behaviour ordained by the ancestors and practiced by them (Edel & Edel, 1957: 87; Sumner, 1907: 232). As Sumner (1907:232).poetically worded this, these systems “contain in themselves the authority of the ancestral ghosts.”

Moral systems often have no justification other than “we do it this way because the old men say it is wiser” (Sun Chief, 1942: 268), or “it was the custom of their ancestors” (Tyler, 1891: 252), and it is now our “duty” to our ancestors to behave the way they specified (Edel & Edel, 1957; Johnson, 1984; Westermarck, 1912). It is often claimed that the ancestors who gave the rules still participate in social life, rewarding those who obey and punishing those who violate their rules (Santos Granero, 1991), a claim that may be universal in all traditional societies (Steadman et al. 1996). Among the Ndembu, the “moral man” is one who “honours his kinship obligations” and “respects and remembers his ancestors” (Turner 1979:374). Middleton states that among the Lugbara, “the rules of social behaviour are the ‘words of our ancestors’” (1960:27). To act morally is one’s duty to the ancestors; morals are not justified by a claim that they are just or fair.

Source of the codes in the early state. Although often appealing to earlier aspects of traditional moral codes for legitimacy, the earliest laws associated with the emergence of the commonwealth (e.g., Mosaic law, Hammurabi’s codes) were not themselves traditional. Instead their source was a new supernatural revelation. The laws of Moses were said to have come to him through divine revelation from the ancestor, Yahweh, who created him; those of Hammurabi of Babylon were said to have been revealed from the Sun-God Samas, the judge of Heaven and Earth (Johns, 1903). Mosaic laws were said to have been revealed to the prophet Moses in order to regulate the behavior of a group of individuals who were “not community of blood, or of land, or of government…but a crowd of mixed ancestry which fled Egypt (Suelzer, 1964: 90). Laws also are said to be “enhanced by the belief that they are fair and just” (Schwartz and Rosenbaum 1983: 241). However, this may be mere rhetoric. It seems clear that “equity is not a necessary condition for the constitution of law; even a shockingly unjust decision…can be law” (van Baal, 1981: 111).

The Scope of the System: To Whom do They Apply

The scope of the system in kinship-based societies. Given the claim that moral codes come from ancestors, it is not surprising that the scope of moral codes in traditional society is defined by kinship, not geography (King, 1972: 37; Edel & Edel, 1957: 16). Specific codes often correspond to specific categories of kin (Coe, 1995; Palmer and Steadman 1997). Birth and descent alone indicate “those who count in it reckoning and take part in its proceedings” (Edel & Edel, 1957: 16). Although descent groups can be associated with ancestral lands, birth is what appears to be important as clans and tribes, members of which are identified by descent names, are not confined to one geographic area, but are spread widely (Palmer et al. 1997; Edel & Edel 1957).

Rules encouraged co-descendants to treat one another as if they were close kin. As Briffault (1931: 57) observed, there are rules of “kindness, love, help, and peace applicable to members of our own clan, tribe, or community, the other of robbery, hatred, enmity, and murder to all the rest of the world.” Unlike Mosaic laws, which made their appearance when interactions among individuals in different tribes was beginning to occur, outsiders in traditional “static” (or unchanging) societies are considered to be less than human (Santos Granero, 1991; Hoebel, 1949). The Amalekites, thus, were not human and were to be exterminated (Wines, 1853: 383).

The scope of the system in the early state. In early nation states the scope of laws is geographic, including the entire nation state, and it thus includes non-kin. Schapera (1956: 25) explained that a state or commonwealth . . . is not a closed group with membership determined solely and permanently by descent. It is rather an association into which people may be born, absorbed by conquest, or admitted as immigrants and from which they may depart voluntarily or be driven by the fortunes of war.

Hammurabi’s code brought together in one geographic area two unrelated groups, Sumerians and Semitics (Diamond 1951). The foundation of Israel, according to Suelzer, was not community of blood or land, or of government,” it was “alliance with the lord [which] united the crowd of mixed ancestry which fled Egypt (1964: 90). In other words, early law created metaphorical kinship ties among non-kin, united by a prophet, Moses, who spoke for an ancestor, Yahweh, who was the father of all men. The boundaries of the Promised Land were said to have been established by God: “From the wilderness and coast be” (Deut iv 6). Tribes living outside the geographical area and not sharing the Hebrew God were neither protected by nor subject to Mosaic law (Wines, 1853: 383).

Transmission of the Codes: Teaching others about the system and its codes

Teaching about the system in kinship-based societies. It often is said that while laws tend to be formal and written, morals are rarely formulated clearly (van Baal 1981) and often are unwritten, transmitted orally, as are behavioral codes in traditional, kinship based societies (King 1972). In kinship-based societies many, perhaps most rules may be unspoken, transmitted by copying or modeling, or through verbal behaviors (van Baal 1981; King 1972). Even if unspoken, individuals are quite conscious of a high valuation placed on certain behaviors. For this reason, Pospisil (1956) argued that we must base our studies of systems of behavior code on what actually goes on in the case of conflict rather than on the presence or absence of abstract rules or a formal process for teaching the rules. Children in all societies are educated about behavioral codes and “the specific consequences that will follow if a rule is not obeyed” this teaching most often was done in the family (Hoebel 1949:363).

Teaching about the system and its codes in the early state. In the early state, education about the legal system and its codes was a civil responsibility—the “state controls education (Coulanges 1955:213). Children learned about the legal system through some sort of a formal system run by the state.

Legislative Enactment: Changes in Moral and Legal Codes

Legislative enactment in kinship-based societies. The persistent transmission of unwritten moral codes unchanged from one generation to the next requires considerable effort, including guided practice and ritualized memorization. Writing makes it easier to maintain codes unchanged. However, it was the written legal codes of early states that often underwent rapid change due to legislative enactments (Wines, 1858: 79; Diamond, 1951), while the unwritten moral codes of traditional kinship societies were passed through both verbal and nonverbal behaviors with little change (van Baal, 1981; King, 1972).

“Numerous writers,” Hoebel (1949) explained, “have commented upon the relative absence of legislative enactment by primitive government.” Often there was no authority competent to make a new rule: “It is seldom in the heads of a people to alter those customs which have been held sacred from time immemorial” (Westermarck, 1912: 162). This is because, as Lowie points out, the aim was “rather to exact obedience to traditional usage than to create new precedents” (1919: 358). Indeed, as Sumner (1907: 355) explained, “The ghosts of the ancestors would be angry if the living should change the ancient folkways.” Furer-Haimendorf (1967: 148) claimed that Gond philosophy “leaves no doubt that the rules of behavior laid down in the ancestor’s time remain binding for present generations.”

Legislative enactment in the early state. Change, such as legislative enactments are more common in legal codes of the early state, although precedent was still cited as justification for change. Regularity,according to Hoebel, refers to the fact that “laws build on precedents, for new decisions rest on old rules or law or norms of custom and new decisions tend to supply the foundation for future action” (1949: 364). While the apodictic codes of Mosaic law are “of perpetual obligation” (Wines, 1853: 43), “forever, throughout your generations” (exodus xxvii 21), the “purely civil law could be repealed or changed” (Wines, 1953: 123). The first law against usury, as one example, prohibited the taking of interest from poor Israelites only (Exodus xxii 25). The second law against usury extended this prohibition to the entire nation (Deut xxii 19; Wines, 1853: 123). Statutes could be modified through reason, logic, the judgments of respected authority, and the will of the people due to “circumstances of climate, soil, situation, political relations, character, and power of the neighboring nations, customs mode of life, prevalent notions as to honor and disgrace, and the nature of severity of punishments, species and sources of crime, etc.” (Wines 1853: 121).

The Presence of Authority and Use of Force

Authority and force in kinship-based societies. Moral codes in kinship-based society are based on the largely informal authority of the ancestors. The manipulation of power to one’s own personal advantage may not be characteristic of leadership in small-scale kinship-based societies and even in some larger societies such as the Nuer. The power of a headman “is extremely limited and ephemeral; it is . . . purely functional and no authority attaches to the office apart from utility to the community” (Briffault 1931: 181; see also Ghoshal 1886; Radin 1953: 245; Hoebel 1949; Westermarck 1912; Schapera 1956; van Baal, 1981).

While this point currently is being debated, for Radin (1953:245), “authority [kinship-based societies] is diffused and non-centralized and coercion is limited in its application.” “The headman in the primitive world,” wrote Hoebel (1949:393), “rarely has explicit authority; his functions are so subtle that they defy easy description.” Westermarck (1912:183-184) claimed that “among many savages, the chief is said to have nothing whatever to do with jurisdiction. He, like other men, “acts merely as an advisor, or is applied to as an arbiter…the judicial power with which the chief is invested is stated to be more nominal than real.” Bushmen chiefs, according to Schapera (1956:87), had “no legislative or judicial functions, nor are there official tribunals of any kind.” If people are unable to reach a decision, they “sometimes ask elderly men to arbitrate their disputes, but such requests are not obligatory, nor are the decisions necessarily accepted.”

The small amount of authority that does exist in kinship-based societies may be described as paternal in that it carries with it heavy obligations of generosity and the duty of protection (King, 1972).  The Bushman leader is commonly said to be the ‘father or ‘herdsmen’ of his people” (Schapera (1956: 68; see also Santos Granero 1991). Generosity is an important characteristic of a good leader. Santos Granero (1991: 162) writes that

the holders of power are represented as generous providers and power relations are characterized by a kind of love with only the powerful may feel for the less powerful. It is this kind of asymmetrical love, with its life-giving qualities, which makes power, whether political or not, legitimate in the eyes of the actors.

Heimendorf (1967: 88-89) reported that headmen who were stingy and grudged expenditure on ceremonial gifts lost the respect of their kinsmen and neighbor; the greater the sacrifices a leader is willing to make, the more respect he receives. Bandalier (1972: 99) wrote that the primary role of the lineage of clan chief is that he is the representative of the ancestors: “who transmits the words of the ancestors to the living, and those of the living to the ancestors.”

Authority and force in the early state. In contrast to informal ancestral authority in traditional societies, force and the legitimate use of physical coercion is the “the sine qua non of law” (Hoebel (1949: 364). That is, “the law has teeth, and teeth that can bite” (ibid). According to Hoebel (1949: 364) three primary elements are important to law: “we may say that force, authority, and regularity are the elements that modem jurisprudence teaches us we must seek when we wish to differentiate law from mere custom or morals in whatever society we may consider,’ “the sine qua non of law” in any society is the legitimate use of physical coercion.”  Legal coercion, he (1949: 363) explained “is the application of physical power, in threat or in fact, by a privileged party, for a legitimate cause in a legitimate way, and at a legitimate time, also see discussion in Meek, 1985; Holmes 1917: 343; Baxter 1953; Pospisil 1956: 257). While leaders in the early state had more power than did leaders in kinship-based societies, they also were expected – or encouraged — to behave in paternal ways, that is to be generous, to “master the civil wisdom of the age,” to perform their duties without complaint (“patient endurance of toil”), and to be “free of selfish ambition” (Wines, 1853: 126, 292).

Guilt and Punishment

Identification of guilt and punishment in kinship-based societies. Hoebel (1949) reported that in small communities of kin, questions regarding guilt or innocence are rarely raised as not much behavior is kept secret and the usual argument is only about the extent of the damages (see also Diamond 1951; Schapera 1956; Malinowski 1934). Punishment was primarily in the form of some degree of social embarrassment or ostracism. The most feared and dreaded punishment was banishment: “Banishment and the loss of rights as a member of the kindred group formed a most effective penalty in a community where the support of the group was so frequently necessary” (Lowie, 1919, 135; see also Hoebel, 1949; Rasmussen 1929; Edel & Edel, 1957; Spencer & Gillen, 1939; Schapera 1956).

Identification of guilt and punishment in the early state. The presence of an impartial judge and judicum parum, or the impartial judgment of peers, are said to distinguish legal from moral systems and kinship-based systems from modem systems (Grotein, 1923; van Baal, 1981). For the Hebrews, judges (who were governors or supreme authorities) were, in connection with the high priest, arbiters of civil controversies (Wines, 1953). The responsibility of judges was to serve as “ministers of justice, protectors of law, defenders of religion, and avengers of crime; particularly the crime of idolatry” (Wines, 1853: 546). Judges, who served for life, were appointed. They received no salary, revenue, or tribute and laws limited their power and the ability of others to influence their impartiality (Wines, 1853: 545).

In the early nations, punishment, depending on the crime, ranged from fines to flogging, to cutting off the ear of an adulterer, to death or banishment from the community (Bamouw, 1963). The principle punishments, “known to the Mosaic code, were the sword, stoning, stripes, compensations, restitutions, reparation of losses and fines” (Wines, 1858: 263). A number of crimes (“of deep moral malignity or aimed against the very being of the state” — Wines, 1853: 263) were punishable by death. Further, there were “posthumous disgraces” which included such things as burning or burying beneath a pile of stones (Wines, 1858: 263), and there were supernatural punishments. Those committing serious crimes were threatened with the loss of their soul, universal deluge, ghastly famine, fiery tempest, the blasting thunderbolt, and sickness (Wines, 1953: 279).

The Codes Themselves

Moral codes in kinship-based societies. The codes regulating interactions in traditional, kinship-based societies are said to focus on the roles of and interactions between kin. Four codes, which were said to be of fundamental importance, promoted motherhood (Edel and Edel 1959; governed mate choice and marriage (Briffault, 1931; Lowie, 1919; Tylor, 1897; Malinowski 1932; Coulanges 1864; Rivers 1917; Kroeber 1923; Westermarck 1912), encouraged cooperation between siblings and other kin (Edel and Edel 1957; Tylor 1891; Westermarck 1912), and encouraged respect for the elderly and the ancestors (Westermarck 1912; Diamond 1951; Tyler 1881; Santos Granero 1991). Without these codes men would be “held down by low animal appetites and passions” (Morgan, 1877: 41), return to a state of savagery, and live in misery (Tyler, 1881).

Legal codes in the early state. The laws of early states had “traces of the influence of a more ancient system of laws, a lex non scripta, or jus consuetudinarium” (Wines, 1853: 122), but they differed in their scope and formality. The aim of Hebrew government was to form a “union” of these unrelated people who were ruled by the 31 kings of Palestine (Wines, 1853: 445). Moses accomplished this by forming a metaphorical kinship group, a brotherhood, of the “children” of God (“Did not He that made me in the womb, make him?”), joining together men and women from different tribes (Job xxxi. 13; Wines, 1853: 446) and encouraging kinship-like behavior among them. When the laws were given to Moses, he read them to the assembly of headmen (“elders of the people”) who provided “formal assurance of their willingness . . . to meet his proposal…to unite together and form a civil community to be governed by common laws” (Wines 1853: 48-49). This is referred to as the first “true social compact” (Wines, 1853: 48).

Resolution of Conflict: Maintaining or Destroying Social Ties

Resolution of conflict in kinship-based societies. The type of relationship in which individuals are involved (kinship or non-kinship) affects the manner in which conflict is resolved. Breaches in enduring relationships, or social relationships that had a “time dimension…are not amenable to handling through law” (Yrgvesson, 1978: 83). Collier (1973) found that in her work with the Zinacantecan of southern Mexico that if individuals wished to preserve a valued relationship they would avoid legal procedures and seek procedures that make reconciliation possible. This is because strong punishment and “revenge denies the presence of social ties” (van Baal, 1981: 106). To resolve problems and allow social relationships to continue, settlements will typically “restore the victim of the crime to his status and give the criminal the opportunity to be reaccepted as a member of the group by his atonement” (van Baal, 1981: 106).

Resolution of conflict in the early state. Laws and the procedures that are designed to identify guilt and seek justice through fines and punishment that matches the judged severity of the crime may damage, irreparably, enduring social relationships (van Baal, 1981). Justice may prevail, but conflicts, in an important sense, are not resolved, as social relationships between individuals, families, and extended families, end.

Conclusion

Summary of the characteristics of moral and legal systems

To summarize this discussion of the transition from kinship based systems, which are more egalitarian and aimed at influencing enduring social relationships to political systems, in which the distribution of power changes and self-interest acquires a greater role, in kinship-based moral system, the codes come from the ancestors and obeying them is a duty owed to one’s ancestors. The codes specify good kinship behavior and the most serious offenses against the ancestors, and his/her descendants, is exile, or the loss of all kinship ties. The source of the codes in a legal system is also said to be an ancestor, actual or metaphorical. The ability to influence behavior, in both systems, whether of an elder or a leader, depends upon ancestral endorsement and leadership in both systems, is defined more by obligations than privileges. Leadership is legitimate when it has both an ancestral endorsement and shows evidence of responsiveness to followers (co-descendants) and fulfillment of obligations to them.

In a moral system, there is no system for the creation of new codes, as the codes themselves are largely immutable. Legal systems, however, have methods and mechanisms in place for legislative enactment. Although legal systems also have immutable codes (which are said to be ancestral and which focus especially on such things as honoring the elders), a new type of code has emerged. These codes, which are mutable, focus on temporary relationships between buyer and seller.

The system found in the early state differs from the one found in kinship-based, traditional societies primarily in the degree of formality as, for example, the laws themselves have been written down. There is also a difference in the power of authority. To some extent, the education of children, or transmission of knowledge about the system and its rules, rather than being accomplished by modeling, storytelling, or other informal methods, has been taken out of the hands of parents and placed in the hands of the state. In order to finance the system, tributes are specified and must be paid on a regular basis. Tributes are no longer made, as sacrifices, to the ancestors, but are given to the ancestor’s living representative. In a moral system, attention is paid to the particular punishments are specified for particular offenses (e.g., the punishment for treason is death) and less credence is given to considering contingencies that may have influenced why one committed an offense.

Theory: How can we explain these systems of behavioral codes?

Thomas Hobbes (1651) exemplifies the common view that before there were legal social contracts there was “war of all against all.” The cross-cultural study of traditional pre-state societies leads to a very different conclusion. Before the legal systems of early states, there were moral systems based on kinship. While legal codes are aimed a regulating selfishly motivated interactions among nonkin, moral codes are aimed at promoting the well being of descendants.

Evolutionary psychology may currently have no theory that allows us to explain the “axiom of kinship amity” or the cooperative treatment of those identified by descent from a common ancestor. As the behavior is so widespread, however, it may be time that hypotheses, such as the one based on cultural traditions, are proposed and tested against the cross-cultural evidence.

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