Legal Universals

Exactly what is law? Perhaps the most satisfactory definition from an anthropological point of view is that offered by E.A. Hoebel of New York University. According to Hoebel, all alien legal systems will have three elements in common: (1) coercion or force, (2) official authority, and (3) regularity.¹⁸⁰⁰

What do we mean by "force"? In its traditional and most absolute form, force means physical compulsion. Xenologists prefer to broaden this concept somewhat in dealing with extraterrestrial lifeforms. Other forms of compulsion than the physical may provide equally coercive effects. Economic sanctions (money damages, deprivation of property, work status demotion), religious sanctions (excommunications, acts of contrition, voodoo curses), social sanctions (marriage prohibitions, dissolution of kinship or disowning, expulsion from work guild), and cultural sanctions (ritual public cleansing ceremonies, ban from festival events) all may be extremely effective in forcing individuals to tow the line.¹⁸⁶⁵ There are many ways to make life uncomfortable for a person short of physical violence or confinement -- the law of alien societies may bite with many different kinds of teeth.

The privilege of applying force under law goes to the official authority. The authority is normally endowed with the power of law enforcement by social consent, except in cases of "tyrannic law" imposed by conquerors or military occupational forces. It is not necessary that the authority hold official legal office -- he may simply be the situational representative of the general social interest as well as his own. Of course, social structure and form of government are crucial to the concept of official authority. Leadership systems involving oligarchies or decentralized political units may give rise to more "primitive" informal legal structures (private law), whereas democratic or highly centralized governments permits the development of "civilized" rigidly formal legal systems (public law).

The third requirement, regularity, does not mean absolute certainty. Rather, it implies that decisions will not be made wholly arbitrarily but will build on precedents or generally approved principles and standards. Even "primitive" law found in tribal societies on Earth rests upon precedent of a sort, relying on older rules or norms of custom. Xenologists thus expect legal systems on other worlds, as on Earth, to bear the stamp of regularity.

Sociologist Donald Black has attempted to synthesize a general theory of the emergence of legal forms in human social. systems, based on a wealth of sociological and anthropological evidence.³⁰⁶⁸ One of his major conclusions is that the quantity of law in any society tends to increase with social stratification, rank of caste, integration of roles, organization or complexity of social structure, cultural level, conventionality, and respectability. So, for instance, stratified societies have more law than egalitarian unstratified groups; wealthy and educated people have more law than the poor and illiterate; unitary and communist/socialist governments have more law than decentralized and laissez faire governments; and so forth. With the proviso that human law mirrors human psychology, Black’s work may prove applicable to extraterrestrial cultures as well.

Of course,more law is not necessarily better or more "civilized." There is evidence that excessive law tends to lessen respect for it. Anthropologist Ruth Benedict once described the Kurnai tribe in Australia, who had such strict rules regarding choice of marriage partner that young men commonly could find not a single girl in the entire tribe whom they could legally marry. To avoid drastically revamping the entire societal legal. and ethical structure, the Kurnai institutionalized evasion of the law! It was deemed morally correct to break the law as long as proper forms were observed. In this particular case, Kurnai who wished to marry would have to elope. All the villagers would set out in pursuit, even though they too had married in similar fashion. If the couple was caught before they reached a traditional place of refuge, they would be killed. But if they made it, they would then be accepted back into the tribe after the birth of a child.³⁰³⁷

Wherever there is law, xenologists expect also to find courts (but not necessarily lawyers²⁵⁹⁴). Courts are the specific embodiment of official authority in the legal system. The highly decentralized Yurok Indian society in California provides an example of a very simple kind of court:

An aggrieved Yurok who felt he had a legitimate claim engaged the services of two nonrelatives from a community other than his own. The defendant did likewise. These persons were called "crossers" because they crossed back and forth between the litigants. The litigants did not face each other in the dispute. After hearing all that each side offered in evidence and argument, the "crossers" rendered a judgment on the facts. If the judgment was for the plaintiff, they rendered a decision for damages according to a well-established scale that was known to all. For their footwork and efforts each received a piece of shell currency called a "moccasin."¹⁸⁰⁰

(Today this process would be called "binding arbitration.")

Tribal councils, the panchayat of India (a court of five men who are the heads of all the families in the village), the Soldier Societies of the Plains and Cheyenne Indians all are examples of courts in "primitive" societies.¹⁸⁶⁵ Perhaps among the most unusual is the traditional Eskimo manner of dealing with recidivist homicide.⁹³⁵ A single instance of killing gives rise to a feud without societal legal sanctions, but a second in stance of homicide by the same offender marks the culprit as a public enemy:

It then becomes incumbent upon some public spirited man of initiative to interview all the adult males of the community to determine whether they agree that he should be executed. If unanimous consent is given, he then undertakes to execute the criminal, and no revenge may be taken on him by the murderer’s relatives. Cases show that no revenge is taken. A community "court" has spoken.¹⁸⁰⁰

If aliens have their courts, procedure may not always be formal and rational. For instance, in centuries past "compurgation" was a permissible form of legal proof in criminal matters. The defendant was allowed to swear off a charge if he could secure a sufficient number of co-swearers called "oath-helpers" or "compurgators." These persons did not swear that they believed the defendant to be innocent but rather that his oath was "clean." Writes legal historian William Seagle:

The number of oath-helpers who had to be found by the defendant was usually twelve in the Middle Ages, although in a case of murder as many as seventy-two were sometimes required. It must be apparent from the mere number of oath-helpers required that compurgation was not so absurd as it may seem, for only a man of good repute and standing in the community could find them, even though at first they appear to have been only relatives.²⁵⁹⁴

Many tribal societies rely on ordeals to decide guilt or innocence. Kenya’s Digo tribe tries a suspect by placing a hot metal against his skin. If he is burned, his guilt is considered proven.¹⁸⁶⁵ Among the Eskimos of East Greenland, all grounds for dispute short of murder are settled by singing duels during which opponents are permitted to butt one another with their heads. The style of the songs must follow a traditional pattern, but the text is composed afresh for each new occasion. The audience is judge and applauds the better singer, even when he is actually in the wrong!⁴⁵²

Other forms of "trial by ordeal" depend on ancient ritual or resort to magic. In Burma some suits are still determined by furnishing plaintiff and defendant each with one candle, lighting them both at once, and he whose candle outlasts the other’s is judged to have won his cause. In Borneo the litigants are represented by two shellfish on a plate. The crustaceans are irritated when lime juice is poured over them, and the first to move settles the guilt or innocence of its owner. The ancient practice of axinomancy, a form of divination, involved a hatchet suspended in midair by a piece of cord. The blade would turn to point at the guilty party. Finally, the ordeal by bread and cheese - a kind of lie-detector test - was practiced in Alexandria during the 2nd century A.D. and by the English during the Middle Ages (known as the corsnaed or "trial slice"). A piece of consecrated bread and cheese was administered from the altar, along with the curse that if the accused was guilty God would send the angel Gabriel to stop his throat and prevent him from swallowing. Sure enough, guilty parties were apt to fail when their own fear caused their mouths to become dry and their throat muscles to constrict.

Legal procedure was often considerably more violent in character. A common mode of proof in Medieval Europe was trial by battle, an ordeal in which God was called upon to manifest the truth by aiding the righteous plaintiff to dispatch the guilty defendant (or his champion) in a judicially supervised contest of arms. Similar ordeals have been noted by anthropologists among many human tribal societies. Marvin Harris describes one such instance among the Yanomamo, a violent group of Indian tribes inhabiting the border between Venezuela and Brazil:

A man with a special grudge against another challenges his adver sary to hit him on the head with an eight-to-ten-foot-long pole shaped like a pool cue. The challenger sticks his own pole in the ground, leans on it, and bows his head. His adversary holds his pole by the thin end, whipping the heavy end down on the proffered pate with bone-crushing force. Having sustained one blow, the recipient is entitled to an immediate opportunity to wallop his opponent in the same manner.³⁰³⁸

Certainly extraterrestrial courts may be no less strange.

Do xenologists expect to find any "universal crimes" among alien races?

The most likely candidate for the most universal crime must be murder.⁹⁵ On Earth, no society exists in which there is a general license to kill fellow humans.^452,935 Homicide is perhaps the most direct, final, and ultimate means of ‘inflicting entropy" on another person. But the universality even of this crime is open to question. Most modern legal systems recognize categories of excusable or justifiable homicide.⁹³⁶ Among the Eskimos infanticide, invalidicide, senilicide, gerontocide, and suicide are privileged acts if conducted by a family member. The basic Eskimo ethical postulates ("life is hard" and the "unsupportability of unproductive members of society") permit a variety of socially approved homicides.⁹³⁵ Another well-known example is the Mundugumor of New Guinea, who believe that it is ethically right and proper to steal, cheat, aggress against, and get the best of one’s neighbors. The average Mundugumor is suspicious, hostile, and self-centered; he is convinced that everyone is out to get him, so he is determined to get them first. Even murder, to a point, is considered socially acceptable behavior.²⁹²⁸

Sexual crimes are considerably less universal in scope,⁹³¹ so there is no guarantee that they will be regarded as offenses in extraterrestrial legal systems. Adultery, incest, fornication, seduction and rape are almost invariably punishable in human societies, but these offenses are defined in terms of elaborate kinship systems.⁹³⁵ Some cultures, for instance, distinguish between the rape of married and unmarried women; others make no distinction whatever between rape and adultery.²⁵⁹⁵ Since rape, homosexuality, and murder during sexual intercourse are commonplace throughout the animal kingdom, xenologists hesitate to assert that these acts must be universally prohibited among alien cultures.

Economic crimes such as robbery, embezzlement, or capitalism are heavily dependent upon the economic system used by the government.^3056,937 While all primitive and modern societies entertain notions of personal property,²⁵⁹⁴ this may simply reflect our territorial simian ancestry and may not at all apply to nonterritorial sentient species or to intelligent races descended from other than monkey stock. Socially approved theft has been described among Adelie penguins in the Antarctic.¹⁰²⁸ Then there is the old Gypsy legend that these wanderers have been granted divine permission to steal because it was a Gypsy who stole one of the four nails of Christ’s cross, thus lessening the Lord’s pain. Xenologists remain highly sceptical of the universality of the crime of theft.

Date: 2015-01-02; view: 1069