Dancing with customary law

Customary Law is in the news again, but the Greek Gods aren’t. Maybe they should be, perhaps their old dramas and poems would allow us all to see in dreaming a non-kissing cousin in the dance we have no choice but to partner. Remember a good dancer has good balance and that nobody wants to be a wallflower.

The Classical scholar Bruno Snell in The Discovery of the Mind, in Greek Philosophy and Literature attempts to show how the Greek origins of our modern ideas of body and soul developed from a pre-Homeric culture when there was no emphasis on individual agency, where guilt and a perpertrator’s moral culpability mattered not a whit in the application of the Law. In pre- Homeric Greece there were three terms used which could be translated into our ‘body’. But they are in no way direct equivalents, and assume a world completely at odds with our own. For body there are ‘limbs’, an aggregate of these, which might have an overall shape (demas) or limit (chros) (think of those muscley well-defined bodies on those ancient Greek urns) but no unity in itself. At this time the later Classical Greek for ‘body’, soma, only referred to corpses, lumpy piles of flesh of no movement or breath. For ‘intellect’ and ‘soul’ there are similar deficits from our modern point of view. For Homer the word psyche is the force which keeps us alive, and not a corpse (soma) from which the breath of life has gone. The other words used at the time were thymnos and noos. Thymnos is the organ of e/motion, it determines physical movement and the emotional life. Noos is the mind as a recipient of clear images, clear ideas.

But none of these organs the terms refer to are given any unifying responsibility for an individual’s ultimate cause or attitude, even if thymnos could be seen as ‘will’ or ‘character’. The ‘limbs’, moving as they may according to a particular thymnos, while receiving clear images of where to go in its noos.

The first writer to mention such a unity in terms of ‘body and soul’, was Heraclitus, in Homer’s time there was no such thing. Snell says Homer would not even have the language in order to predicate one on the other.

“The soul has a logos which increases itself,” says Heraclitus. But for Homer, Snell says, “mental processes have no such capacity for self-induced expansion.”

In Homer’s time no one had any agency over their own thoughts, feelings, emotions, movement or ideas. The organs that dealt with these issues were receptacles, vessels or mediums, not producers. The producers were the Gods themselves. Snell says, “We believe that a man advances from an earlier situation by an act of his own will, through his own power. If Homer, on the other hand, wants to explain the source of an increase in strength, he has no course but to say that the responsibility lies with a god.”

To our modern Christian and post-Christian sensibilities, and putting it in legalese, it means the pre-Homeric culture assumed that no human is morally culpable for any act. They have no human individual agency. Nowadays moral culpability is tabloided as ‘Mad or Bad?’ but in those days the insane and sane alike were fingered by the gods. It was normal everyday occurrence.

But they still had laws, and they still punished people. Your guilt did not refer to a state of mind uncovered in a mindreading process, through a legal review of all the evidence. It referred to your part in restoring balance, you were morally liable, if not culpable. The punishment was not there to discipline you, or hurt you, or teach you a lesson, but to put things back as they should be. Compensation that shifts the burden of the unbalancing act, makes everything right again. As it should be. Just your bad luck that the gods picked on you, nothing personal you understand when we whip you and enslave the family. Maybe you didn’t make enough offerings this year, who knows?

When Socrates took his last hemlocky draught it was the result of conviction under laws regarding Asebeia. They covered various outrages against the Gods: desecration, temple theft, badmouthing the immortals, and a clause describing the failure to worship, or value, the Gods. Socrates’ defense team pointed out that he always performed the customary sacrifices, but to no avail. Snell says that by this time the last clause was used to include newfangled charges of atheism, individual agency was being applied where it never had before– judicial activism. Where before it was completely meaningless, by now even conservatives believed in an interior life, in individual human agency, and atheism was deemed an Asebeia, and so Socrates was found to be an asebes who corrupted youth. But the original law did not care about  internal processes because only Gods had agency, much like only they had eternal life.

The original clause dealt with expected participation by community members, and other public acknowledgement of the Gods, protecting them from defilers and sabbath-avoiders. They were about balancing the bad behaviour which the Gods might take unkindly, and punish collectively. Balance is gone. Watch out!! The sky is falling! We’re all doomed.

Aspects of some Aboriginal Customary Law, pay-back, are the same. Greek Gods may not be invoked as causal, but the same human intuitions about restoring balance, or similar, to the whole social cultural legal system, are paramount. Such that when a perceived unbalancing act or event must be  addressed, it may not matter which individual members of a particular class are selected for punishment. That’s because it’s not about guilt and blame, but fixing the mess. It’s solutions-focussed, using symbolically, magically, legally the bodies and faces of those who bore the unbalanced act into the situation in the first place. Falling in love with the wrong skin, proximity to an elder’s illness or death, being the wrong gender to visit a sacred site or watching ceremonies. The dance must go on.

I suspect surviving in harsh climes and deserts over thousands of years relegated the potential notion of individual responsibility and blame to an irrelevant position in social systems. On the other hand adults in such societies often had complete and detailed positions descriptions (e.g. strong gender division of labour) which we have almost completely eradicated as our successful liberal economies creatively destroy every tradition from the past, stripping them of meaning and repackaging them in theme parks, or preserving them in museums for sado-masochists to drool over. But in pre-economy days if you badly broke the position description for an adult man in skin number four you would be quickly balanced with a spear and your whys and wherefores would be taken as irrelevant to long-term survival.

But today our legal procedures must consider whether or not a perpetrator knows what they did was wrong, or whether they were of an unbalanced mind. Measuring it even when assessing guilt and an appropriate punishment. The relatively recent calls for victims’ views and experiences to become part of the legal process, somehow, are a part of this long story regarding the rise of individual agency. And even they have been called in to balance out the focus on the perpetrator’s mind.

All socio-legal systems worry about Balance, regardless of their belief in individual agency. It’s the common denominator. Blood money systems, where a murdered slave is worth a few pennies and a nobleman a lot of gold, show us this directly with shop scales of justice. Our scales of justice are often held out by a blindfolded woman, and it’s usually interepreted as showing her disinterest in our individualness before the law, but really it is that nothing is as important as Balance. It’s just our egoism that defines justice in selfish terms. “Yes, we are all individuals.”

Now Balance itself is just a human intuition, outside of symmetry and shop scales it is hard to point out anywhere it actually exists. It’s probably a normative pattern, if not the original normative belief. It is even born in what we call the balance of nature, an intuition born in the deep time of evolution, and so might actually be an imaginary god worth listening to, or at least being ennervated by. Anyway, if we don’t believe in it, it might muck us around, regardless of how we view it, or ignore it. It’s a superstition, but I can’t think of anything to replace it.

Particularly if you want to dance.