Law, Justice, and War in World Until Yesterday

I just finished my full (~4000 word) review of Diamond’s World Until Yesterday, which will appear over at the shiny new journal The Appendix in, like, April. Writing that and catching up on Diamond coverage around the web (Stephen Corry’s review at the Daily Beast is the most intemperate but the second half is worth reading) means I have hardly no time to blog about Diamond — or anything else — so let me jump right on to chapter 2 (and remember, my notes on World are online as well).

In this chapter Diamond examines the pros and cons of ‘traditional’ and ‘state’ systems of justice. He begins with the story of a compensation payment in Papua New Guinea: A man driving a company car around hits and kills a young child. The child’s family negotiate with an older and wiser company employee, and eventually a compensation payment is made. Diamond contrasts this form of compensation with Western legal systems: compensation is aimed at bringing emotional closure and restoring a network of social relationships, whereas state justice is concerned with punishing criminals and making an example of you so that your fellow citizens will stay in line. Western courts are slow, Diamond says, but they break the cycle of feud and payback killings that characterize — according to him — traditional societies. Thus Diamond writes:

Maintenance of peace within a society is among 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. (World, 98)

This is the first of three chapters that deal with war, peace, and the state and it’s the least problematic of the three. Diamond’s description of compensation in Papua New Guinea jives well with the comp payments I’ve attended. If people haven’t heard of compensation payments, then they should. Transacting goods to rearrange social relations is an important thing, and one that Papua New Guineans are experts at. Today, people complain that payments can be excessive, that contemporary exchanges warp traditional culture, are tied up in political corruption in the country, and so forth — and there’s a lot of truth to that. But I am glad that Diamond talks about them in his book, because a lot of people still think of them as ‘irrational’ or ‘backwards’. Which is ridiculous. Additionally, I’ve always been amazed at the emotional satisfaction that they can bring, when they are well done — Diamond is right to emphasize how different, and often better, homicide compensation can be compared to other forms of grieving.

The chapter has a structure that recurs throughout World: long sections summarizing ethnographic data, with a few tentative normative speculations at the end. There’s no analysis, in the sense that cultural anthropologists expect there to be — no sense of the author adding value to the data through interpretation. Of course, this may be a plus for some readers. But I think that it also has its drawbacks — Diamond doesn’t think deeply enough about compensation and courts.

So many others have beaten Diamond up for not having more footnotes that I didn’t want to go there — it’s a conscious decision you can disagree with, not an oversight. So whatever. But I do think that it’s amazing that Diamond discusses Western culture without having any serious reference to anything that’s been written on law. And there’s a lot. Diamond’s mistaken assumption that he doesn’t need to learn about the unexamined side of the contrast between the West and the Rest is, for me, a big problem. It’s actually quite anthropological — we’re well known for saying “They do X while we do Y” without ever actually studying what ‘we’ in the West do. It drives historians crazy, and it’s actually why I made my second field site a study of the US.

I’m puzzled at Diamond’s claim that the purpose of law is to make peace — that it is the type of thing that would be improved by including mediators and restorative justice. It doesn’t take a lot of insight (or experience with the court system) to realize that law is a way of making war, not making peace. Diamond, thinking like Hobbes, seems to think this is the case with criminal law, where the state makes war with its citizens. But it’s equally true of civil law. Suing someone is what you do when the talking is done. This is something that Papua New Guineans have often remarked to me in the course of litigating against mining companies: when you have gavman (government) you fight with money, not arrows.

I also think that Diamond doesn’t understand how compensation claims really work. I will try to prove my point by throwing a lot of quotes at you from Laurence Goldman, who works with Huli people, because I happen to have that bit of my notes open at the moment.

Diamond seems to suggest — but does not ever make clear, which is handy for him — that ‘traditional societies’ are in a state of equilibrium and harmony until a dispute arises, and the purpose of compensation is to get back to that harmony. So far, so Radcliffe-Brown. And yet he also seems to suggest that traditional societies are in a constant state of crisis, payback, and killing. And for Diamond the first situation is good and the second situation is bad.

Anthropologists who actually study PNG for a living tend to see Papua New Guineans — and here I really mean the highlands community that I know best, from Hagen to Tari, as interested in maintaining relationships between groups. In fact, groups are ‘elicited’ — they form in opposition to each other, around some particular issue (Wagners “Are There Groups in the New Guinea Highlands” goes into this). The goal is not ‘peace’ in the sense of an equilibrium in which no one owes anything else. This would cut the relationship. As Goldman writes

For indigenes… the idea of a ‘community without conflict’ may be an objective which is neither socially imaginable nor even desired. Anthropologists, in particular, have long argued that disputes per se are not symptomatic of anomie. Social equilibriums are predicated on cyclic patterns of grievance management and are not perturbed by them.” (2003, Hoo-ha in Huli p.1)

Thus we should not see “friction as failure” in the sense of “a lack of rules sanctioned by judicial institutions or a reluctance to abide by them” (p. 1). Rather,

fighting forms part of a sequenced set of behavioural responses that may itself constitute a coda or precipitate closure. Attempts to gloss such commotion as part of an opposition between ‘war’ versus ‘law’ have long been rejected as ethnocentric and over-simplistic. It is more useful to focus on understanding the patterns of recourse to different conflict resolution mechanisms and the prevalent sequential relationships between physical and verbal conflict (p. 2)

Relationships and disputes never end. Rather, they are modulated into different forms: now war, now peace. In fact, sometimes if Papua New Guineans feel like relationships with someone or something are not quite right, they will blow them up and precipitate a crisis or conflict in order to rearrange them in less conflictual form. This, for me, was one of the greatest lessons I learned from living in PNG (although perhaps the people in my department wish I did not always use it in faculty meetings): sometimes if things aren’t working right, the best thing to do is just explode the whole thing, rile everyone up, create a huge mess, and use the crisis to create a better status quo afterwards.

In this viewpoint, disputes never end — they are only dormant and can always be mobilized in the course of other disputes. Citing the title of his previous book (Talk Never Dies, a very rigorous and detailed but also very boring analysis of Huli dispute talk (“you need a cup of coffee between each page!” Laurence once told me apologetically)), he emphasizes

‘Talk Never Dies’ precisely because between potential litigants there were always a number of issues that remained unresolved after talking or fighting. That is, many claims would lay dormant until such time as a strategically significant dispute arose allowing claimants to ‘activate’ past unresolved disputes in a sequenced set of claims. Disputes were always ‘multiple-claim’ affairs. It was never the case that a “conflictless” set of conditions prevailed within any Huli community.” (p. 4)

Again, I think there is something to learn here from PNG, even if Diamond himself hasn’t (or hasn’t been able to explain it to us): any particular argument is always about that one thing, but it’s also abut your entire history with a person and all the arguments you’ve had in the past with them. Anyone who has ever watched others blow up over a little thing like leaving the refrigerator door open will understand this: it’s not just the refrigerator door, it’s a whole history of arguments about the door, taking out the trash, cleaning the bathroom, etc. of which the refrigerator door is just the last straw. Huli (and other highlanders) recognize this explicitly and work in and through these histories of disagreement. Too often Americans and other Westerners do not. This is not brutal, traditional chaos — it’s a different culture with a different way of managing disputes.

Ironically, trying to pacify people through the introduction of a court system doesn’t really work. As Goldman reports for Huli:

The lesson to be drawn from this period of response to ‘law and order’ is that interventionist activities can often be a catalyst for increased levels of the very activity they attempt to address. The whole ‘court’ system became a larger referral network for dispute processing and an alternative avenue of recourse when customary talking failed to produce a desired outcome. (p. 7)

Given the incredibly virtuosity with which Huli manage disputes, ”the wholesale reinvention of indigenous grievance management processes [through some new government system] for Huli would be akin to showing a professional golfer how to hold a golf club” (p. 11). “This is why any faith placed in the judiciary as a source of control is misplaced and ill conceived”. Huli end up colonizing the legal system, politicizing it, and using it as yet another arena for the on-again, off-again management of conflict.

Of course, the Huli are notorious in Papua New Guinea for being disputatious. But the same argument could be made in Enga province, or Western Highlands province, or in other areas of the highlands, and probably the coast as well. ‘Peace’ is not necessarily the goal of Papua New Guineans, and ‘war’ is not just the result of uncontrollable human anger directed towards vengeance. It’s a culture of conflict, one which requires of observation to watch play out (something Diamond may not have seen, given his movements across the country).

I personally do not want to live in a world run along Huli lines — since it probably wouldn’t involve a lot of, you know, working infrastructure. There are a lot of benefits to living in a state. But I think that when it comes to compensation and conflict, Diamond is looking at the trees and missing the forest.

Alex Golub is an associate professor of anthropology at the University of Hawai‘i at Mānoa. His book Leviathans at The Gold Mine has been published by Duke University Press. You can contact him at rex@savageminds.org

6 thoughts on “Law, Justice, and War in World Until Yesterday

  1. Thanks Alex for quoting from Goldman; this is a helpful post. I had in mind looking at Harrison’s The Mask of War in this connection (and maybe I will come back to this), where Harrison argues that the Western (Hobbesian) assumption that violence is inherently asocial (or anti-social) leads even good anthropologists (I seem to recall him citing one Marshall Sahlins) into mis-reading the Melanesian material. War is not inimical to sociality but constitutive of it, at least in some of the political systems of PNG. Here’s Harrison:

    Payments connected with warfare such as compensation for allies or former enemies killed in feuds {flow constantly between groups}. These compensations may be connected closely with the nexus of marriage transactions: a compensation payment may be used by the recipients as bridewealth to acquire a wife, who will bear sons to replace the dead man. Highland political leaders characteristically achieve power and status by playing prominent roles in organising *all* (emphasis added) these inter-group transactions.

    In many of the New Guinea Highland societies, much warfare seems therefore to be simply a violent form of sociality, in which killings are exchanged as a destructive alternative to gifts. That is to say, the emphasis in both warefare and ceremonial gift-exchange is on parity, equivalence, and the demonstration of equality of status. The feuding is a definite male partnership, a real tie of reciprocity between social persons related to one another also by marriage and by gift exchanges. Enemies are former partners in exchanges of gifts, transformed for the time being into partners in exchanges of injuries and deaths. (1993:127)

    Harrison contrasts the pattern of war-as-reciprocity in the Highlands with patterns observed in Lowland New Guinea (=Papua?, Sepik), where warefare was “not only retaliatory, carried out as feud and vengenace, but… could be direct at any outsider indiscriminately.”

  2. an observation from family history on this one. although many people have heard of the hatfield-mccoy feud, many are not aware that lawsuits were as ably wielded as shotguns in that particular vendetta

  3. There is a famous example from a tort class at Yale law school. An employee drives a large piece of construction equipment back to the yard from the building site. At a railway crossing, he loses control, smashes through the barrier, ends up hitting a telephone kiosk and falls off th emachine, breaking his ankle. Who should he sue? Always the party with the most money, so in this case, Bell Telephone, not his employers, the manufacturers or the railway company.

    OK, it’s partly a joke. And killing a a kid is potentially a crime, but compensation involves the law of tort and that means money, not punishment. Kudos for resisting West vs the Rest logic, Rex. There’s a lot of it about in “Melanesian studies”.

  4. I should hope killing a kid is always a crime! :-)

    Rex, thanks for this excellent post. Several cross-cultural comparisons come to mind here, starting with Rosaldo’s “Ilongot Headhunters,” which deals with how groups are formed through the alliances of war. Also, it goes without saying, Evans-Pritchard “The Nuer.” It seems violent socialities are a wide-spread phenomena. I have to wonder about the social role of fantasy violence in MMORPGs, etc, but that’s your area!

    Also in Bolivia the “tinku” is a dance that in a few places is still a ritualized battle, often resulting in one (or a few) deaths. (In most places, the tinku has now been transformed into a folkloric dance where the violent aspect is just alluded to. I have danced it myself, in that form.) But this is very much about maintaining the social order, not upturning it.

  5. @DJ: Really interesting comment, particularly in light of your use of the term vendetta, which I think can serve as an opening for thinking more critically about the law /courts and its use in ‘the West’, and especially in the US, while also directing attention to the ways in which anthropology (especially as practiced in some departments) is war, and directing attention to the ways in which the law and legal/court-based ‘war’ can be a form of sociality wherein the institutionally-powerful are united by their opposition to those who are institutionally and structurally disadvantaged (especially in relation to the courts and law enforcement). In the US especially, with its pervasive and intractable racial judicial bias, the courts can then be used as a site of ‘legal’ race wars and racist vendettas, especially so as to retain structurally-conditioned forms of white power/privilege/supremacy. (And I am thinking both about one individual or a small group going after one person, as well as larger issues like voter disenfranchisement as part of a race-based politics of resentment amidst cries of ‘we want our country back’, which I think could be described as a kind of long-running post-Reconstruction vendetta.)

    In particular, your use of the term vendetta reminded me of this article: http://m.theatlantic.com/entertainment/archive/2013/01/the-small-petty-fraudulent-vendettas-of-lance-armstrong/267184/. Here I think it is worth noting, and thinking deeply about, how Lance Armstrong was actually able to use the courts to cover up his own wrongdoing and to smear and retaliate against those who were telling the truth about him and his actions, because of the huge power differential: so the courts can easily be used for vendettas, and as war, precisely because of their deep structural inequality.

    I think this is important to think about in relation to Rex’s comments on blowing things up so as to try to acheive a new status quo: a statement which seems neutral enough, but in the context of the real-world conditions of structutural inequality (e.g. race, class, gender, color, age, (dis)ability especially), especially in relation to the courts, is not in fact neutral advice. And this is why I read the comment as very much about (upper-)middle-class white male privilege, even if not intended as such. We are definitely not all equal before the law after all, so we won’t all be treated equally for metaphorically ‘blowing things up’ so as to try to change the status quo for the better (i.e. more egalitarian, transparent, honest; less abusive).

    Privilege matters, greatly: and determines who can get away with ‘blowing things up’ and attempting to speak truth to power without being viciously retaliated against.

    So yes, definitely all for thinking about how ‘the West’ wages war through the courts, especially in the pursuit of (fraudulent) vendettas which are very much about (racial, classed, gendered, institutional) sociality, even as they may also simultaneously have antisocial motivations.

  6. The people who have to proffer up the compensation payments are very rarely the people who influence what the payment shall be, or who shall offer them: this is why, for instance, compensatory rape of your daughter is a wholly possible outcome. Your daughter might not like it, but tough.

    As Graeber emphasized in Debt, the systematization and control of compensation for slights is exactly the source of states and money. Centralized politics is where states settle disputes over what are appropriate compensations.

    That aside, there seems to be a concession of important ground to Diamondesque “chronic stateless warfare” in arguing that the warfare is, indeed, chronic, but merely that there is a logic to it.

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