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The Michael Shermer Show

A series of conversations between Dr. Michael Shermer and leading scientists, philosophers, historians, scholars, writers and thinkers about the most important issues of our time.

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EPISODE # 236

Fernanda Pirie on The Rule of Laws: A 4,000-Year Quest to Order the World

The Rule of Laws: A 4,000-Year Quest to Order the World (book cover)

Rulers throughout history have used laws to impose order. But laws were not simply instruments of power and social control. They also offered ordinary people a way to express their diverse visions for a better world.

In The Rule of Laws, Oxford scholar Fernanda Pirie traces the rise and fall of the sophisticated legal systems underpinning ancient empires and religious traditions, while also showing how common people — tribal assemblies, merchants, farmers — called on laws to define their communities, regulate trade, and build civilizations. Although legal principles originating in Western Europe now seem to dominate the globe, the variety of the world’s laws has long been almost as great as the variety of its societies. What truly unites human beings, Pirie argues, is our very faith that laws can produce justice, combat oppression, and create order from chaos.

Fernanda Pirie is professor of the anthropology of law at the University of Oxford. She is the author of The Anthropology of Law and has conducted fieldwork in the mountains of Ladakh and the grasslands of eastern Tibet. She earned a DPhil in Social Anthropology from Oxford in 2002, an MSc in Social Anthropology at University College London in 1998, and a BA in French and Philosophy from Oxford in 1986. She spent almost a decade practicing as a barrister at the London bar. She lives in Oxford, UK.

Shermer and Pirie discuss:

  • Why do we need laws? Can’t we all just get along?

    “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” —James Madison, Federalist Paper No. 51

  • Kings of ancient Mesopotamia wrapped their laws in grand statements of social justice and the dictates of the gods.
  • Biblical rules and laws: dietary, sexual, violence,
  • Jewish and Islamic Scholars: God’s Path for the World
  • Sharia Law,
  • Chinese emperors claimed that the laws on which their authority rested were manifestations of the order of the cosmos.
  • The world religions promulgated laws that were guides for living and a pathway to the afterlife, entangling church and state and setting the stage for struggles in medieval Europe to build secular systems of law.
  • The age of Western empire brought with it ambitious efforts by European states to organize and legitimate their imperial conquests in a system of international law. Pirie shows that laws protect against the abuse of power but also serve as instruments of social control.
  • Pirie argues that if the history of law has a common theme, it is that laws are not simply rules: they have a more overarching function in providing societies with shared identities and moral visions.
  • Why anyone ever made law. It was often marginal to the success of government and maintaining order, but lawmakers made rules to establish their legitimacy, promise justice to their people, and set out their visions for a more civilized world.
  • How laws have been used, since the earliest days, to resist power, define citizens’ rights, and hold rulers to account.
  • slavery,
  • colonialism,
  • stateless law: tribes, villages, networks, and gangs: The Godfather,
  • pirate laws,
  • international law,
  • crimes against humanity,
  • Outlawry of War
  • Quest for Cosmic Justice (Thomas Sowell)
  • Governing Mars: what type of law should there be for the first Mars colonists?
Pirate Morality
From Dr. Shermer’s Scientific American column (October, 2009)

As the economist Peter Leeson shows in his pirate myth-busting book, The Invisible Hook, pirates were not, in fact, the criminally insane, traitorous terrorists of popular lore, in which anarchy was the rule and the rule of law was nonexistent. This piratical mythology can’t be true because ships packed full of riotous sociopaths, ruled by chaos and treachery, couldn’t possibly be successful at anything for any length of time. The truth was much less exciting and mysterious; pirate communities were “orderly and honest,” says Leeson, and had to be to meet buccaneers’ economic goal of turning a profit. “To cooperate for mutual gain — indeed, to advance their criminal organization at all — pirates needed to prevent their outlaw society from degenerating into bedlam.” So there is, after all, honor among thieves. As Adam Smith noted in The Wealth of Nations: “Society cannot subsist among those who are at all times ready to hurt and injure one another…. If there is any society among robbers and murderers, they must at least…abstain from robbing and murdering one another.”

Pirate societies provide evidence for Smith’s theory that economies are the result of bottom-up spontaneous self-organized order that naturally arises from social interactions. Leeson shows how pirate communities democratically elected their captains and quartermasters, and constructed constitutions that outlined rules about drinking, smoking, gambling, sex (no boys or women allowed on board), the use of fire and candles (a shipboard fire could prove disastrous for crew and cargo), fighting and disorderly conduct (the result of high testosterone risk-taking men confined in tight quarters for long stretches of time), desertion, and especially shirking one’s duties during battle. Like any other society, pirates had to deal with the “free rider” problem because the equitable division of loot among inequitable efforts would inevitably lead to resentment, retaliation and economic chaos.

Enforcement was key. Just as criminal courts required witnesses to swear on the Bible, pirate crews had to consent to the captain’s code before sailing. In the words of one observer: “All swore to ‘em, upon a Hatchet for want of a Bible. When ever any enter on board of these Ships voluntarily, they are obliged to sign all their Articles of Agreement,” in order “to prevent Disputes and Ranglings afterwards.” Leeson even tracked down the sharing of contractual arrangements between captains, made possible by the fact that “more than 70 percent of Anglo-American pirates active between 1716 and 1726, for example, can be connected back to one of three pirate captains.” Thus, the pirate code “emerged from piratical interactions and information sharing, not from a pirate king who centrally designed and imposed a common code on all current and future sea bandits.”

From whence, then, did the myth of piratical lawlessness and anarchy arise? It arose from the pirates themselves, naturally, in whose best interests it was to perpetuate the myth in order to minimize losses and maximize profits. They flew the Jolly Roger to signal their reputation for mayhem but, in fact, the pirates didn’t actually want a fight, because fighting is costly and dangerous and might result in economic loss. Pirates just want booty, and they prefer a low-risk surrender to a high-risk battle. From the merchant’s perspective, the nonviolent surrender of their booty was also preferable to fighting back, because violence is costly to them too. Of course, to maintain a reputation that you are a badass, you actually have to occasionally be a badass, so pirates intermittently engaged in violence, reports of which they happily provided to newspaper editors, who duly published them in gory and exaggerated detail. As the 18th-century English pirate Captain Sam Bellamy explained, “I scorn to do any one a Mischief, when it is not for my Advantage.” Leeson concludes, “By signaling pirates’ identity to potential targets, the Jolly Roger prevented bloody battle that would needlessly injure or kill not only pirates, but also innocent merchant seamen.”

Outlawry of War
From Dr. Shermer’s Scientific American, December 2017

War was outlawed in 1928.

In their history of how this happened, The Internationalists: How a Radical Plan to Outlaw War Remade the World (Simon & Schuster, 2017), Yale University legal scholars Oona A. Hathaway and Scott J. Shapiro begin with the contorted legal machinations of lawyers, legislators, and politicians in the 17th century that made war, in the words of the Prussian military theorist Carl von Clausewitz, “the continuation of politics by other means.” Those means included a license to kill other people, take their stuff, and occupy their land. Legally. How?

In 1625 the renowned Dutch jurist Hugo Grotius penned a 500-page legal justification for his country’s capture of the Portuguese merchant ship Santa Catarina when those two countries were at war. The Law of War and Peace argued, in short, that if individuals have rights that can be defended through courts, then nations have rights that can be defended through war because there was no world court.

As a consequence, nations have felt at liberty for four centuries to justify their bellicosity through “war manifestos,” legal statements outlining their “just causes” for “just wars.” Hathaway and Shapiro compiled over 400 such documents into a database on which they conducted a content analysis. The most common rationalizations for war were self-defense (69 percent); enforcing treaty obligations (47 percent); compensation for tortious injuries (42 percent); violations of the laws of war or law of nations (35 percent); stopping those who would disrupt the balance of power (33 percent); and protection of trade interests (19 percent). These war manifestos are, in short, an exercise in motivated reasoning employing the confirmation bias, the hindsight bias, and other cognitive heuristics to justify a predetermined end. Instead of “I came, I saw, I conquered,” these declarations read more like “I was just standing there minding my own business when he threatened me. I had to defend myself by attacking him.” The problem with this arrangement is obvious. Call it the moralization bias: the belief that our cause is moral and just and anyone who disagrees is not just wrong but immoral.

In 1917, with the carnage of the First World War evident to all, a Chicago corporate lawyer named Salmon Levinson reasoned, “We should have, not as now, laws of war, but laws against war; just as there are no laws of murder or of poisoning, but laws against them.” With the support of philosopher John Dewey, French Foreign Minister Aristide Briand, German Foreign Minister Gustav Stresemann, and U.S. Secretary of State Frank B. Kellogg, Levinson’s dream of war outlawry came to fruition with the “General Pact for the Renunciation of War,” or the Peace Pact, or the Kellogg-Briand Pact, signed in Paris in 1928. War was outlawed.

Given the number of wars since, what happened? The moralization bias was dialed up to eleven, of course, but there was also a lack of enforcement. That began to change after the ruinous Second World War, when the concept of “outcasting” took hold, the most common example being economic sanctions. “Instead of doing something to the rule breakers, Hathaway and Shapiro explain, “outcasters refuse to do something with the rule breakers.” This principle of exclusion doesn’t always work (Cuba, Russia), but sometimes it does (Turkey, Iran), and it is almost always better than war. The result, the researchers show, is that “interstate war has declined precipitously and conquests have almost completely disappeared.”

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This episode is sponsored by Wondrium:

Wondrium (sponsor)

This episode was released on December 18, 2021.

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