Pirates, Prisoners, and Lepers: Lessons from Life Outside the Law
376
Pirates, Prisoners, and Lepers: Lessons from Life Outside the Law
376eBook
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Overview
It has long been held that humans need government to impose social order on a chaotic, dangerous world. How, then, did early humans survive on the Serengeti Plain, surrounded by faster, stronger, and bigger predators in a harsh and forbidding environment? Pirates, Prisoners, and Lepers examines an array of natural experiments and accidents of human history to explore the fundamental nature of how human beings act when beyond the scope of the law. Pirates of the 1700s, the leper colony on Molokai Island, prisoners of the Nazis, hippie communes of the 1970s, shipwreck and plane crash survivors, and many more diverse groups—they all existed in the absence of formal rules, punishments, and hierarchies. Paul and Sarah Robinson draw on these real-life stories to suggest that humans are predisposed to be cooperative, within limits.
What these “communities” did and how they managed have dramatic implications for shaping our modern institutions. Should today’s criminal justice system build on people’s shared intuitions about justice? Or are we better off acknowledging this aspect of human nature but using law to temper it? Knowing the true nature of our human character and our innate ideas about justice offers a roadmap to a better society.
Product Details
| ISBN-13: | 9781612347448 |
|---|---|
| Publisher: | Potomac Books |
| Publication date: | 07/15/2015 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 376 |
| File size: | 5 MB |
About the Author
Read an Excerpt
Pirates, Prisoners, and Lepers
Lessons from Life Outside the Law
By Paul H. Robinson, Sarah M. Robinson
UNIVERSITY OF NEBRASKA PRESS
Copyright © 2015 Paul H. Robinson and Sarah M. RobinsonAll rights reserved.
ISBN: 978-1-61234-744-8
CHAPTER 1
What Is Our Nature?
What Does Government Do for Us and to Us?
On a sunny June morning, the parents of preschoolers at an elementary school in Los Angeles gather to celebrate the "graduation" of their twenty-three little ones. The cheery sky-blue walls of the classroom with its tidy bulletin boards welcome the parents, mostly mothers, to an endearing ceremony. It is followed by a photo session with each "graduate" posing in a cap and gown — a photo to memorialize the youngster's start down the path to what all hope will be a life of success and happiness.
But the mother of the most recently photographed child seems to be taking a bit too long removing the cap and gown from her child, at least in the view of the next mother in line. Mother Next comments on this, showing some frustration. Mother First responds with a less-than-sympathetic remark. Mother Next gives Mother First a shove. Mother First shoves back, and fists begin to fly. The mayhem quickly spreads into three separate fights, then into a general brawl. A few parents step clear of the brawl — and three take out their cameras to record the action.
A well-put-together young mother with a tight bun hairstyle runs toward the fight but is grabbed by a mother in a white blouse. Nice Bun breaks free by shedding her jacket. White Blouse is left holding an empty pink windbreaker as Nice Bun tackles Striped Shirt, who had been randomly pummeling those around her. The slapping and punching sounds are clear on the recordings, with children heard screaming in the background.
While Nice Bun and Striped Shirt roll on the floor, Long Legs reaches across the combatants to strike a different spectator. A small child dashes out from behind the new victim, her neat ponytail flashing. By now Striped Shirt is back on her feet, lunging at another new victim. An older woman, probably a student's grandmother, is pushed to the ground in the melee and struck her head on a bookshelf. When two mothers stepped in to help her, they too were attacked. The brawl spills out of the classroom and into the hall, continuing on past the maximum recording time of the cameras of bystanders.
The police are called. Several parents are arrested for assault. It is later determined that during the melee, purses and other property were stolen, presumably by those who had stepped out of the action. All school events involving parents are canceled for the remainder of the elementary school year.
This melee occurred among ordinary people — apparently loving mothers of preschoolers — walking through their everyday lives. It was not among some odd group of malevolent troublemakers or criminals, which seems to suggest that a mere scratch of the surface civility of ordinary people can reveal selfishness, meanness, and even aggression. Perhaps this incivility is always waiting to pop out as flashes of rudeness or worse over any of life's minor frustrations occurring millions of times a day as people react to the petty annoyances of life. Even the higher-profile breakdown of civility on display at the graduation brawl is hardly unusual. Consider a different group in a different context at the other end of the country.
For a nominal fee, a friends baseball association provides their offspring preschoolers with a full ten-game T-ball season, along with a baseball uniform, a team photo, and the right to march in the annual parade that begins the season. Every year, a new generation of children get to enjoy their first taste of organized sports.
On this August evening, the Florida weather is summer perfect. Earlier in the day, it had been ninety-one degrees, but a cooling rain has brought the evening temperature down to a more comfortable level. The night's game is between the Yankees and the Tigers, all preschool and kindergarten boys. The coaches are dads giving up their time for the youngsters. It is the end of summer and the start of the long Labor Day weekend, so lots of parents are in attendance. By this time in the season the boys have had some playing experience, so it promises to be a good game.
Late in the six-inning game the umpire makes a call that one of the dad-coaches disagrees with. An argument ensues. The argument spreads to other parents, then to parents from the other side. Tempers and voices rise. Soon the shouting turns into hitting, and before long the sidelines empty as twenty men, mostly dads of the two teams, charge the field. The four- and five-year-old boys stand watching as their dads swing at one another with wild punches and tackle each other to the ground. The umpire backs out of the melee, which continues without him.
The police are called. They are able to stop the brawling, take names, and begin interviewing the fighters and the bystanders, with the interviews continuing off the field the following day. A coach from each team is suspended, and at last report the police are still deciding whether and with what to charge the brawlers.
California and Florida. Moms and dads. It seems that even ordinary people today can easily misbehave over minor disappointments or frustration — and even in public, and in front of their children.
There exists a common wisdom of sorts that humans are inherently bad and government and law is the essential feature that saves us from ourselves. Founding father James Madison put it this way: "What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary."
Think the postapocalyptic marauding bands of thugs attacking Mel Gibson in The Road Warrior, or Denzel Washington in The Book of Eli, or Kevin Costner in Waterworld. For centuries this has been the common view of man's natural state. According to philosopher Thomas Hobbes in his 1651 classic work Leviathan, without the restraining influence of governmental law, "every man is enemy to every man." There is no right or wrong, only power and weakness. It is only government and its laws — the "Leviathan" — that restrains people from destroying one another. "Law was brought into the world for nothing else but to limit the natural liberty of particular men in such manner as they might not hurt, but assist one another." Governmental law, then, is the wellspring of all social order.
Many of us rarely see a policeman in our daily lives, but our conduct is nonetheless highly influenced, consciously or not, by the knowledge that an entire criminal justice machine is waiting at the end of a 911 call. We rarely even think about the possibility of making the call. The existence of government, laws, courts, and the police has created a cocoon in which most of us enjoy a degree of safety. We follow the laws most of the time, and life goes on. The imperceptible hand of criminal justice is always there to keep the wolves among us, or hidden within us, away from the sheep.
The problem with this humans-are-devils-and-only-government-can-save-us view is that, if it were true, we as a species would have gone extinct several million years ago. Our ancestors on the Serengeti Plain more than 125,000 generations ago were surrounded by predators that were stronger, faster, and bigger than they. Yet the weak humans, who should have been easy prey, became the most successful species in the history of planet earth. And they did it without the restraining hand of governmental law.
This miracle of human success was not the product of a Hobbesian inclination to destroy others, but just the opposite. It was the product of our natural tendency to cooperate with one another as a cohesive group (and made possible by our luck in developing an ability to communicate through language). There was no government restraining these early humans — or even the concept of such an external "Leviathan" anywhere in their consciousness. There was instead a cooperative human nature that did not need governmental laws to be successful.
However, this does not mean that there were no shared understandings of how the group members should or would be made to behave. We know that social norms develop that can effectively guide conduct, even without governmental law at work. A famous study of ranchers and farmers in Shasta County, California, by Robert Ellickson, a professor at Stanford Law School, showed that groups commonly organize their lives through their own social arrangements rather than through legal rules, even for those regular points of tension among members that the law purports to control. Ellickson describes substitute social rules for situations as diverse as dealing with damage to adjoining property when livestock stray, deciding who should bear the cost of fences to prevent straying, and collisions with livestock that stray onto roads.
Do cooperative ranchers prove that Hobbes was wrong? Do they show that man does not need law to gain social cooperation? Not really. The social accommodations among the Shasta County farmers and ranchers are made possible only because they are made within an existing legal system — the 911 cocoon, if you will. No doubt the ranchers and farmers still call the police when needed, and knowing that help is just a phone call away creates a comfortable space within which they can make their social arrangements. Children at recess may play nicely when the playground monitor is standing nearby, but they might well revert to Lord of the Flies without her.
A true test of whether man needs laws would require dropping the Shasta County ranchers and farmers onto a large, uninhabited island. Absent a criminal justice system of laws enforced by police, courts, and prisons, would they show the same degree of social cooperation? Without that external restraint, would the strong bully the weak? The difficulty, of course, is that finding volunteers for such an experiment might prove difficult. (We set aside here the raft of reality television schemes that might seem to fit the bill. Besides the obvious sampling distortions — what kind of person volunteers for such wacky public exposure? — there still exists in such schemes the "playground monitor" being represented in the person of the producers, commercial sponsors, and the FCC, all of whom are watching carefully to be sure things don't spin too far out of control.)
Do we really need governmental law to coexist, as Hobbes assumes? Could the cooperative nature displayed by the humans of the Serengeti Plain make government and law unnecessary? Indeed, need-for-law skeptics might go further to suggest that not only is governmental law not essential to our social organization and well-being, but that it affirmatively hurts us. It is not something to be celebrated and revered. Rather, it is only to be tolerated and continuously scrutinized. It may help us as a society in some ways but it hurts us in others.
The graduation brawl and the T-ball melee may actually illustrate the skeptics' point. This level of conflict upon trivial provocation is what we get when we rely on governmental law rather than on the interdependence and shared responsibility that marked early humans' social cooperation. The Serengeti humans would never have done something so silly. If they had, they would not have lasted long.
Has the advent of governmental law really saved humans from ourselves, or has it created a disconnect among us and stoked a selfishness that makes us less cooperative with one another? By inserting itself between people, by breaking the bonds of direct interdependency and the personal accountability that it brings, has governmental law created humans who have little interest or need to develop a habit of cooperation?
Clearly, the existence of governmental law has not made us a pleasant and cooperative society. The United States has more than one hundred thousand criminal provisions. Every state has its own criminal code, typically containing about two thousand provisions. Layered over this is federal criminal law, with another five thousand criminal statutes and many thousands more regulatory provisions that have been made federal crimes (three hundred thousand, it has been estimated). Because legislatures love to pass crime-related legislation, the number of criminal laws is increasing. Indeed, in some states the pace is accelerating, with the number of newly created criminal statutes increasing each year. We are the most legally controlled people in all of human history.
Yet all this criminal lawmaking has hardly done away with crime or even reduced it to a minor problem. More than twenty-two million crimes are committed each year in the United States, and six million of those are violent crimes. But Americans are not the only ones to experience the limits of modern law's effectiveness. As bad as U.S. crime is, most of the world is worse. The U.S. murder rate of 4.2 per 100,000 people, for example, is lower than that of most countries in the world and is only about 60 percent of the world's overall murder rate (almost 7 per 100,000). Compare the U.S. rate of 4.2 to Africa's average murder rate of 17, South America's 20, and Central America's 28.5. Even many countries in the world's lower-crime regions have noticeably higher rates: Indonesia has a rate of 8.1, Russia 10.2, North Korea 15.2, and Greenland 19.2. Indeed, many countries have murder rates in the 30s and 40s, or higher. Honduras, the record holder, has a rate of more than 91 per 100,000.7 It is hard to see governmental law as a roaring success in this respect.
Would governmental law do a better job if it sought to cherish and enlarge upon the human nature seen in the cooperation of humans on the Serengeti, rather than attempting to stamp out the evil human nature of the Hobbesian bad man? What should be the fundamental goal of governmental law: to constrain and reform our nature or to build upon and encourage it? The answer depends in large part on exactly what our common nature is today. Perhaps it is not just that government has changed our existence but that our existence under government has changed our nature. Perhaps the passing of the 125,000 generations since the original people of the Serengeti has changed us — we are no longer who we once were — and governmental law may now be, as Hobbes believes, essential.
Distilling the answer to this fundamental question — What is our basic nature today, if one removes the influence of governmental law? — seems nearly impossible. In a world so dominated by government and law, how could we even imagine a life without it? The Shasta County farmers and ranchers are not volunteering for the uninhabited island experiment. Luckily, the accidents of history and the unpredictability of life give us some enlightening instances in which we can glimpse humans living beyond the law. Our world and our history are rich with such natural experiments, most of which no one would volunteer for, but survivors of such events can tell us the data-rich tale.
A plane crashes on a remote mountain or a ship wrecks on an isolated island. If there is no prospect of rescue, how do the survivors deal with one another? If the group thinks it might soon be rescued, this is no true test. While no policeman is at hand, people might still conform out of fear that later they will be called to account by the law. A true test occurs only when the people of the group think they will never return to the control of governmental law, or if the situation is such that they no longer care about such a possibility. Once they feel completely free of legal constraints, how do isolated individuals behave toward one another? Perhaps they will continue for a while in their lawful ways out of habit or momentum. What happens when those habits are long washed out by the threat of extinction every day, like the humans on the Serengeti Plain? Do the strong maximize their chances of survival by victimizing the weak?
Such absent-law situations have occurred in a wide variety of settings beyond plane crashes and shipwrecks. A group may be forced into permanent isolated exile, as with the forced creation of leper colonies in the middle of the nineteenth century. A group may choose to isolate itself, as with groups of escaped slaves or pirates at the start of the eighteenth century. Members of these groups no longer see themselves as under the influence of governmental law. Indeed, for some groups the absence of governmental law is the primary enticement, as with the American hippie anarchist communes of the 1970s.
One can be in an essentially absent-law situation without even being in an isolated or remote locale. Prisoners in POW or concentration camps have their dealings with guards strictly controlled, but the guards often have little interest in the behavior of prisoners among themselves. How do such inmates deal with one another? Or how do residents in occupied areas during wartime behave when their occupiers forbid any police involvement and take no interest in what residents do to one another? If governmental law is the wellspring of social order, does its absence mean inevitable chaos and a state of war in which "every man is enemy to every man"? Or does the sudden absence of governmental law return the group to a natural state of cooperative action brought on by a shared situation and interdependence? Or is it something else altogether?
(Continues...)
Excerpted from Pirates, Prisoners, and Lepers by Paul H. Robinson, Sarah M. Robinson. Copyright © 2015 Paul H. Robinson and Sarah M. Robinson. Excerpted by permission of UNIVERSITY OF NEBRASKA PRESS.
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Table of Contents
Contents
List of Illustrations,Acknowledgments,
Part 1. Human Rules,
1. What Is Our Nature? What Does Government Do for Us and to Us?,
2. Cooperation: Lepers and Pirates,
3. Punishment: Drop City and the Utopian Communes,
4. Justice: 1850s San Francisco and the California Gold Rush,
5. Injustice: The Batavia Shipwreck and the Attica Uprising,
6. Survival: The Inuits of King William Land and the Mutineers of Pitcairn Island,
7. Subversion: Prison Camps and Hellships,
Part 2. Modern Lessons,
8. Credibility: America's Prohibition,
9. Excess: Committing Felony Murder While Asleep in Bed and Life in Prison for an Air-Conditioning Fraud,
10. Failure: Getting Away with Murder Beyond a Reasonable Doubt,
11. Collapse: Escobar's Colombia,
12. Taking Justice Seriously: Five Proposals,
Postscript: What Are They Doing Now?,
Notes,
Glossary,
Bibliography,
Index,