Among still another small group, Brazil’s Piraha Indians (Plate 11), social pressure to behave by the society’s norms and to settle disputes is applied by graded ostracism. That begins with excluding someone from food-sharing for a day, then for several days, then making the person live some distance away in the forest, deprived of normal trade and social exchanges. The most severe Piraha sanction is complete ostracism. For instance, a Piraha teen-ager named Tukaaga killed an Apurina Indian named Joaquim living nearby, and thereby exposed the Piraha to the risk of a retaliatory attack. Tukaaga was then forced to live apart from all other Piraha villages, and within a month he died under mysterious circumstances, supposedly of catching a cold, but possibly instead murdered by other Piraha who felt endangered by Tukaaga’s deed.
My next-to-last example involves the Fore, a New Guinea Highland group among whom I worked in the 1960s, and who live at a considerably higher population density, and hence appear to be more aggressive, than the !Kung, Siriono, or Piraha. The Fore were studied between 1951 and 1953 by a husband-and-wife anthropologist couple, Ronald and Catherine Berndt, at a time when fighting was still going on in the area. Without a central authority or formal mechanism to deal with offenses, Fore dispute resolution within a clan or lineage was of the do-it-yourself variety. For instance, the responsibility for defending one’s property against theft rested on the owner. While theft was condemned by community standards, it was up to the owner to seek compensation in pigs or another form. The magnitude of compensation was not standardized to the value of the object stolen but depended on the relative strength of the offender and the offended, on past grudges, and on how the thief’s kin regarded the thief and whether they were likely to support him.
A Fore dispute was likely to drag in people other than the two initially concerned. In the case of dissension between a husband and wife, the kin of both would become involved but could themselves experience conflicting interests. While a man belonging to the same clan as the husband might support his fellow clansman (the husband) against his clansman’s wife, he might instead support the wife against the husband because of having contributed to the bride payment to acquire the wife for the clan. Hence disputes within a lineage were usually under pressure to be settled quickly, by payment of compensation, exchanging gifts, or holding a feast to signal the reestablishment of friendly relations. Disputes between two lineages of the same district could also be settled by payment of compensation, but (as we shall see in the next two chapters) the risk of resort to violence was higher than if the dispute were within a lineage, because of less pressure for settlement being applied by other people.
The last of the non-state societies that I compare here is the Nuer of the Sudan (Plate 7), who numbered about 200,000 people (divided into many tribes) when studied by the anthropologist E. E. Evans-Pritchard in the 1930s. Among the five societies, they are the largest, the one with apparently the highest prevalence of formalized violence, and the only one with a formally recognized political leader, termed a “leopard-skin chief.” The Nuer are quick to feel insulted, and the admired way for men to settle disputes within a village is by fighting with clubs until either one man is badly injured, or (usually) until other villagers intervene and pull the fighters apart.
The most serious offense among the Nuer is a killing, which triggers a blood-feud: if X kills Y, Y’s relatives are obliged to seek vengeance by killing X and/or one of X’s close relatives. Hence a killing marks a dispute not only between the killer and the slain but also among all the close relatives of both, and among their whole communities. Immediately after a killing, the killer, knowing that he is now a target for revenge, takes asylum in the chief’s house, where he is immune from attack—but his enemies keep watch to spear him if he should make the mistake of leaving the chief’s house. The chief waits a few weeks for tempers to cool (similar to the briefer delay in the case of Billy’s death in New Guinea that I related), then opens negotiations for compensation between the killer’s relatives and the victim’s relatives. The usual compensation for a death is 40 or 50 cows.
However, it is crucial to understand that a Nuer chief has no authority to rule, to decide the merits of a dispute, or to impose a settlement. Instead, the chief is just a mediator who is used if and only if both parties want to reach a settlement and to return to the pre-existing state of affairs. The chief elicits from one side a proposal, which the other side usually refuses. Eventually, the chief urges one side to accept the other side’s offer, and the former side does so with a show of reluctance, insisting that it is doing so only to honor the chief. That is, the chief provides a face-saving way to accept a compromise necessary for the good of the community. A feud cannot be tolerated within a village and is difficult to sustain for long between nearby villages. But the greater the distance between the two lineages involved, the more difficult it becomes to settle the feud (because there is less desire to restore normal relations), and the more likely is the initial killing to escalate to further violence.
The Nuer leopard-skin chief may also be used to mediate lesser disputes, such as ones over stealing cattle, clubbing someone, or a bride’s family failing after a divorce to return the bride-price cows that they received at the time of marriage. However, Nuer disputes do not pose clear issues of deciding between right and wrong. If for instance the dispute is about stealing cattle, the thief does not deny the theft but instead boldly justifies it by invoking some score to be settled: a previous theft of cattle by the present owner or the owner’s relatives, or some debt (e.g., as compensation for adultery, for an injury, for having sex with an unmarried girl, for divorce, for claimed underpayment or non-return of bride-price, or for a wife’s death in childbirth which is considered the husband’s responsibility). Just as Nuer compensation does not involve right or wrong, the offended party will not succeed in extracting his compensation unless he is prepared to use force, and unless it is feared that he and his kin will resort to violence if not compensated. As with the Fore, self-help or do-it-yourself is the basis of Nuer dispute resolution.
Compared to the other four non-state societies discussed here, the role of Nuer chiefs suggests a first step towards dispute adjudication. But it is worth re-emphasizing the features of state dispute adjudication still absent among the Nuer, as among most other non-state societies except for strong chiefdoms. The Nuer chief has no authority to settle the dispute, and is just a mediator, a means to save face and promote a cool-off period if both parties so desire, as was also true of Yaghean’s role in the dispute between Billy’s family and Malo’s employer. The Nuer chief has no monopoly on force, nor indeed any means to apply force at all; the disputing parties are still the ones able to use force. The aim of Nuer dispute resolution is not to decide right or wrong, but to re-establish normal relations in a society where everyone knows or at least knows of everyone else, and where persistence of ill will between any two members of the society endangers the society’s stability. All these limitations of Nuer tribal chiefs change when one encounters more populous chiefdoms (such as those of large Polynesian islands and large Native American polities), whose chiefs hold real political and judicial power, assert a monopoly on the use of force, and represent potential intermediate stages towards the origins of state government.
State authority
Let’s now compare those non-state systems of dispute resolution with the systems of states. Just as the various non-state systems that we discussed share features in common while differing among themselves in other respects, state systems also share other common themes amidst their diversity. My comments about state dispute resolution will mostly be based on the system most familiar to me, that of the United States, but I shall mention some differences in other state systems.
Both state dispute resolution and non-state dispute resolution have two alternative procedures: mechanisms for reaching mutual agreement between the disputing parties, and then (if those mechanisms are attempted but fail) mechanisms for reaching a contest
ed solution. In non-state societies the flip side of the compensation process for reaching mutual agreement is escalating violence (Chapters 3, 4). Non-state societies lack formal central state mechanisms for preventing dissatisfied individuals from pursuing their aims by violent means. Because one act of violence tends to provoke another, violence escalates and becomes an endemic threat to peace in non-state societies. Hence a prime concern of effective state government is to guarantee or at least improve public safety by preventing the state’s citizens from using force against each other. In order to maintain internal peace and safety, the central political authority of the state claims a near-monopoly on the right to use retaliatory force: only the state and its police are permitted (with sufficient cause) to employ violent retaliatory measures against the state’s own citizens. However, states do permit citizens to use force to defend themselves: e.g., if citizens are attacked first, or if they reasonably believe that they or their property are in imminent serious danger.
Citizens are dissuaded in two ways from resorting to private violence: by fear of the state’s superior power; and by becoming convinced that private violence is unnecessary, because the state has established a system of justice perceived to be impartial (at least in theory), guaranteeing to citizens the safety of their person and their property, and labeling as wrong-doers and punishing those who damage the safety of others. If the state does those things effectively, then injured citizens may feel less or no need to resort to do-it-yourself justice, New Guinea–style and Nuer-style. (But in weaker states whose citizens lack confidence that the state will respond effectively, such as Papua New Guinea today, citizens are likely to continue traditional tribal practices of private violence.) Maintenance of peace within a society is one of the most important services that a state can provide. That service goes a long way towards explaining the apparent paradox that, since the rise of the first state governments in the Fertile Crescent about 5,400 years ago, people have more or less willingly (not just under duress) surrendered some of their individual freedoms, accepted the authority of state governments, paid taxes, and supported a comfortable individual lifestyle for the state’s leaders and officials.
An example of the behavior that state governments aim to prevent at all costs was the Ellie Nesler case in the small town of Jamestown, California, a hundred miles east of San Francisco. Ellie (Plate 35) was the mother of a six-year-old son, William, whom a camp counselor named Daniel Driver was suspected of sexually molesting at a Christian summer camp. At a preliminary courtroom hearing on April 2, 1993, at which Daniel was being charged with abusing William and three other boys, Ellie fired five shots at close range into Daniel’s head, killing him instantly. That constituted retaliatory force: Ellie was not defending her son against an attack in progress, nor against the imminent prospect of an attack, but she was retaliating after a suspected event. In her defense, Ellie declared that her son had been so distraught over being abused that he was vomiting and incapable of testifying against Daniel. She feared that Daniel would go free, and she lacked faith in an inept justice system that had allowed a sexual predator with a history of such behavior to remain at large and continue his crimes.
Ellie’s case provoked a national debate on vigilantism, with her defenders hailing her for exacting her own justice, and her critics condemning her for doing so. Every parent will understand Ellie’s outrage and feel some sympathy for her, and probably most parents of an abused child have fantasies of doing exactly what Ellie did. But the view of the state of California was that only the state had the authority to judge and punish the abuser, and that (however understandable Ellie’s rage) state government would collapse if citizens took justice into their own hands, as Ellie did. She was tried and convicted of manslaughter and served 3 years of a 10-year sentence before being released on appeal based on jury misconduct.
Thus, the overriding goal of state justice is to maintain society’s stability by providing a mandatory alternative to do-it-yourself justice. All other goals of state justice are secondary to that main one. In particular, the state has less or no interest in the overriding goal of justice in small-scale non-state societies: to restore a pre-existing relationship or non-relationship (e.g., by promoting an exchange of feelings) between disputing parties who already knew or knew of each other and must continue to deal with each other. Hence non-state dispute resolution is not primarily a system of justice in the state sense: that is, a system to decide right and wrong, according to a state’s laws. Bearing in mind those different overriding goals, how similar are state and non-state systems of dispute resolution in their operation?
State civil justice
A starting point is to realize that state justice is divided into two systems, which often employ different courts, judges, lawyers, and bodies of the law: criminal justice and civil justice. Criminal justice is concerned with crimes against the state’s laws, punishable by the state. Civil justice is concerned with non-criminal injuries inflicted by one individual (or group) on another, and further subdivided into two types of actions: contract cases, resulting from breach of a contract, and often or usually involving money; and tort cases, resulting from injury done to a person herself or to her property through the action of another person. The state’s distinction between criminal and civil actions is gray in a non-state society, which has societal norms of behavior between individuals but does not have codified laws defining crimes against a formally defined institution, the state. Compounding the grayness is that an injury to an individual is likely to affect other individuals as well, and small societies are much more concerned than are state societies with those effects on others—as exemplified by the case I related of everyone in a !Kung band being affected by and joining the arguments between an unhappy husband and wife. (Imagine if a judge in a California divorce court were to take testimony about how the divorce would affect everybody in town.) In New Guinea, essentially the same system for negotiating compensation is used to deal with the intentional killing of one person by another, the repayment of a bride-price after a divorce, and one man’s pig damaging another man’s garden (respectively a crime, a contract, and a tort in Western courts).
Let’s begin by comparing state and non-state systems for civil disputes. One similarity is that both use third parties to mediate, to separate the disputing parties, and thereby to promote cooling-off. Those intermediaries are experienced negotiators like Yaghean in New Guinea, leopard-skin chiefs among the Nuer, and lawyers in state courts. In fact, states have other types of intermediaries besides lawyers: many disputes are handled outside the court system by third parties such as arbitrators, mediators, and insurance adjusters. Despite Americans’ reputation for being litigious, the great majority of civil disputes in the U.S. are settled outside the courts or before going to trial. Some professions consisting of a small number of members monopolizing a resource—such as Maine lobster fishermen, cattle ranchers, and diamond traders—commonly settle member disputes by themselves without state involvement. Only if third-party negotiation fails to produce a settlement mutually agreeable to the parties do they resort to their society’s method of dealing with a dispute without a mutual agreement: violence or war in a non-state society, and a trial or formal adjudication in a state society.
A further similarity is that both state and non-state societies often spread the cost owed by the offending party over many other payers. In state societies we purchase automobile and homeowner insurance policies that pay the costs if our car injures a person or another car, or if someone is injured by falling on our house’s steps that we negligently left slippery. We and many others pay insurance premiums that permit the insurance company to pay those costs, so that in effect other policy-holders share our liability and vice versa. Similarly, in non-state societies the relatives and fellow clan members share in payments owed by an individual: for instance, Malo told me that his fellow villagers would have contributed to the compensation payment for Billy’s death if Malo hadn’t been working
for a company able to make the payment.
In state societies the civil cases whose courses are most similar to that of a New Guinea compensation negotiation are business disputes between parties involved in a long-term business relationship. When an issue arises that such business parties cannot work out by themselves, one party may become angry and consult an attorney. (That’s much more likely in the U.S. than in Japan and other countries.) Especially in a long-term relationship in which there has been a build-up of trust, the aggrieved party feels taken advantage of, betrayed, and even more angry than if it were just a “one-off” relationship (i.e., the first business encounter for the parties). As in a New Guinea compensation negotiation, channeling business-dispute discussions through lawyers cools off the dispute by substituting (one hopes) calm reasoned statements of lawyers for angry personal recriminations of the parties, and reduces the risk that opposing positions will harden. When the parties have the prospect of continuing a profitable business relationship in the future, they are motivated to accept a face-saving solution—just as New Guineans in the same village or neighboring villages, expecting to continue to encounter each other for the rest of their lives, are motivated to find a solution. Nevertheless, lawyer friends tell me that a New Guinea–style genuine apology and emotional closure are rare even in business disputes, and that usually the most that can be expected is a scripted apology produced as a settlement tactic at a late stage. If, however, business parties are involved in a one-off relationship and never expect to deal with each other again, then their motivation for amicable settlement is lower (just as is true of New Guinea or Nuer disputes between members of distant tribes), and the risk increases that the dispute will proceed to the state’s equivalent of war: a trial. Nevertheless, trials and adjudications are expensive, their outcomes are unpredictable, and even one-off business disputants experience pressures to settle.
The World Until Yesterday: What Can We Learn From Traditional Societies? Page 12