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The cult of justice

One of the problems with what I do is that I look for patterns in human behaviour, and once I see them I have difficulty un-seeing them. And there's a set of patterns I keep seeing that are implicit in our news reportage—specifically, the reporting of legal cases. Patterns which seem to me to have a very simple underlying cause but which we take so much for granted that we don't recognize them explicitly.

1. Justice is a religious cult.

2. Law is holy scripture.

3. Judges are priests.

4. Judicial capital punishment is human sacrifice.

I'd like to note that in some contexts, point (2) is explicit. Nobody in the Anglosphere quibbles at the idea of Shari'a law being religious law based on holy scripture because it says it is. And when you've got a legal-religious hierarchy such as exists in shi'ism or orthodox judaism it's pretty hard to deny point (3). The laws the Christian Dominionists would like to foist upon us are similarly derived from a religious point of origin. Point (4) is more questionable, but if one notes that capital punishment is not a necessity for crime prevention (and it certainly isn't rehabilitative!) then one is forced to ask why it's associated with justice. And finally, to circle back to point (1), why are people generally so uncomfortable with the idea of abandoning justice?

At risk of invoking a pop-sci ev-psych explanation, there's some experimental evidence to support the hypothesis that monkeys and primates have an innate preference for fairness in transactional encounters. Lack of fairness offends monkeys, and humans, at a very low level. So I hypothesize that, just as religious behaviour in general seems to be a by-product of theory of mind (we've evolved to attribute intent to other animals in order to anticipate their behaviour; when we attribute intent to natural phenomena like storms and lightning we end up with invisible sky daddies who are angry), so "justice" is a by-product of the mechanisms that allow primates to socialize with one another without intra-group predation. It emerges not as a pre-formed body of rules, but as a predisposition to divide behaviours into "good" and "bad" categories, and to attribute religious intent to this categorization.

Now let's note some corollaries:

1. Justice-as-religion implies a seat of absolute authority from which judgements may be passed—naively, a God (or goddess, or symbol) of justice. (In reality, it's a shared human cognitive process: the natural non-human world has no justice mechanism. But human-centric processes are, well, human-centric.)

2. Anarchism is hated and loathed by the followers of the Cult of Justice because it occupies a role equivalent to Atheism in the context of religions: it's corrosive of certainty, and a large subset of humanity simply can't cope with uncertainty.

3. Governments embody mechanisms for creating and enforcing laws. It follows that all governments are theocracies.

Discuss point (3).

164 Comments

1:

Having attended sessions of the legislature and watching law being made, I've found the old adage about law and sausage making to be true.

There may be Believers raising law and government to theocratic status, but the number of heretics is probably *very* high...

2:

Law has always been for sale. (At least since the invention of money with which to pay for it.)

On a related note, indignation at the idea of the Law being corrupted in this way may be behind the current movement to designate high-level corruption an international crime against humanity.

Think of it as the ghost of the Reformation rising ...

3:

The justice system, and the hypothetically disinterested government that manages it, evolved because it facilitates our escape from the security dilemma of anarchism. There's nothing religious about it. It's a self-organizing paradigm which persists because it promotes social propagation. Problems arise when the societies which use government on a mass scale become so large that they stop functioning as a collective of individuals and evolve into groups of coalitions, factions, and special interest groups, which sometimes become large enough to take over the machinery of government and divert it away from its original purpose, resulting in a return of the Hobbesian trap.

4:

Lawyer comment: Justice is not religion, justice is part of the magic system of government. Proof: acolytes of justice can cast spells to bring things into being that didn't exist before. For example, "I now pronounce you man and wife."

5:

The argument relies on the premise that the concept of fairness is associated with religious intent. There are many religious figures who like to promote such ideas, but atheists are generally opposed to the notion that their lack of religious belief in any sense implies a lack of morals or sense of fair play.

You've never struck me as a religious firebrand, so the post is an odd one. Aren't you really just noting the human tendency to attribute some variation of intent, expertise or supernatural causes (or all of the above) to pretty much everything? Baristas as the priests of the caffeine religion, etc? Lucky stock traders as financial geniuses? Etc.

Both law and medicine, for instance, are moving on from using Latin jargon as a way to maintain authority and set themselves apart. Nonetheless, the justice system relies on having the authority to enforce fairness - and other outcomes, sadly, on too many occasions.

I wouldn't argue that it has never used quasi-religious trappings such as Latin and fancy outfits to maintain that authority. But it would be naive cynicism to therefore simply wrap up justice as a religious cult.

6:

Can I just point out that the law and justice aren't the same thing, are barely even connected.

In your metaphor, if justice is the belief in a supernatural deity, then the law is a holy book - superficially related; but in reality full of nasty bits like slavery, hatred, bigotry, and unthinking obedience.

The priests (lawyers, and thus judges) are concerned with the book, the words, the B&W, and will debate how many angels can dance on the head of pin - but conveniently forget the bit about justice, fairness, doing what's 'right' etc. in pursuit of the normal aims: money & power.

How the hell could they ever *be* connected, when you need money to exercise the law, and when lawyers win by lying (which is what twisting facts into pretzels really is)?

As for all governments are theocracies - nope.

All governments are concerned with the obtaining, maintenance, and exercising of power. Religions are also about these things; they just word it slightly differently and use adjacent tools. Thus they stem from the same fount; they are brothers, not father and son. Sometimes the quarrel, and sometimes they gang up. And sometimes they pick up the toys of the other and use them for their own particular ends.

In the end they are both siblings of greed. The only debate is who's the mother in this metaphor?

7:

Modern justice is the confession of sins without the promise of forgiveness - the act of a victim forgiving the malefactor is rare indeed, and seems absurd as the state forgives no-one.

Even those convicted of crimes in the UK and then have those convictions quashed, are neither forgiven, nor found innocent.

The State and the Judiciary are infallible, and even alleging the Justice system's might have made a mistake is tantamount to calling holy scripture into question.

During the MPs expenses farrago I was surprised by the parallels with

Simony - these men sold themselves to obtain the sacraments of legal power.

Inquisition - most are guilty, but we will punish only a few to intimidate the rest

and

Scapegoating - those are the guilty ones. We, and the system are purified by their conviction and punishment. NOW, QUESTION US NO MORE, AND AVERT YOUR GAZE.

Heaven forbid that the flock should influence the making of the law, even in a self-styled democracy.

8:

I'm not sure I agree with all of your initial points. The legal system certainly has trappings of religious activity around it still, but while some view it in religious terms I'm not sure it is generally seen that way. Too many miscarriages of justice and failures of the system for it to work as a religion I think - it's a very human system that is trying rather than a perfect system that operates on faith.

But while I have issues with your set up, I particularly have issues with the final one. Like you, I live in a country without the death penalty and it hasn't had the death penalty through my life. It seems to me, from the outside, that judicial capital punishment is not about sacrifice, it is more about sanctified eye-for-an-eye retribution. More of a sense of "we can't let the hoi-polloi run amok take retribution and acting like vigilantes but we need to give them their pound of flesh" then a sacrifice in the sense of making holy, dedicating them to the Gods. But perhaps I'm wrong.

And a bit like Ian S, I suspect you're seeing meta-parallels. There are more people that want power and influence than can have it. Otherwise they wouldn't want it. As systems and numbers allow, more routes towards power develop - religion, law, force of arms that has evolved towards political government, finance, the media etc.

Some of the methods and mechanisms of each are unique, because they're internally geared to advancement within the particular system, but in as much as they're tools for people with that desire to influence "the masses" they have strong similarities because the targets are the same, en masse the levers to move us are the same.

Governments aren't all theocracies, all "-archies" have similarities because as soon as it's about rule you're balancing how you do what you want, how you get your message across with how you react to the external environment.

9:

Hmm... I'm open to various evo-psy approaches to criminal justice history, and looking out for baselines in behaviour that tend to remain permanent, but I'm not sure about all these theses.

The thing is, about 200 years ago, EnglishandWelsh justice underwent a massive revolution.

Before, most theives got let off, often on odd and (especially to us) bizarre technicalities. But an unlucky minority of them were hanged. The best theorist of this system is a man named William Paley, who, as it usual, wrote a defence of it when it was coming under attack.

The attack was delivered in its most handy-to-quote form by an Italian jurist called Beccaria, who argued that we'd change criminal behaviour if, rather than a 10% chance of an awful punishment, criminals would get a 100% chance of a lesser one. Not only that, but if we put more resources into policing, we would catch more criminals in the first place. Terror should be replaced by certainty.

And that, to a first approximation, is what happened. It's such a difference that it leads me to suspect that we're not dealing with a permanently operating factor (such as, forex, young men taking risks), but a consequence of choices being taken by a modern powerful state.

10:

Lawyer rebuttal:

"Magic" is at least quasi-religious, and government is religious to the extent that it involves faith in something larger than ourselves. This is how money works. ("Full faith and credit" is printed on the bills here in the U.S.) Also, it makes us believe in all kinds of things that don't exist in the natural world, like corporations. We maintain faith in the government to the extent that we do, because it's do better than the alternative. (Yes, feel free to bitch about it. As a constituent of Rand Paul I will certainly acknowledge its flaws. But I would still rather live here than anyplace that doesn't have a functioning democracy.)

I spent ten years as a public defender. Yes, I lied to get guilty people less than they might have deserved. Yes, cops and prosecutors lied to keep innocent people in jail. And yes, I don't do that job anymore in part because of those reasons. But most of what I saw and did involved under-resourced people trying sort out a lot of desperate and cruel behavior. There wasn't much faith to be found in those who worked there every day.

11:

Speaking of pop sci, the study titled "Markets, Religion, Community Size, and the Evolution of Fairness and Punishment" (Science 2010) supports your theory that justice is a socially evolved concept but suggests that fairness is ALSO a socially evolved concept. On the other hand, it mostly is talking about the degree of fairness, not the presence of fairness. I wonder if one could measure religious intent vs degree of fairness? Do you think the five females from two social groups of capuchin monkeys studied in the link you gave have religious intent?

12:

@5: Baristas as the priests of the caffeine religion

Suddenly many things about my life have become clear to me. It seems I have been a reformed-orthodox Caffienista of the Tea-drinking variety for some time now.

PS. While we may have a number of doctrinal differences with our Coffee drinking bretheren, we recognise that the Church of Caffeine is a broad church, and toleration is the order of the day.

PPS. Drinkers of instant coffee are clearly heretics, and beyond the pale.

Ahem.

The religious establishment and the legal system both have many features in common, simply because at heart they are both structures created for the ordering of society. Indeed, they overlap significantly; to the extent that religious leaders are frequently de-facto also temporal leaders. (Although temporal leaders being de-facto religious leaders, our dear Queen aside, seems less common.)

All the great religions, including the non-Abrahamic ones, prescribe much the same 'rules for living': honesty, truthfulness, fair dealing, respect for existing social hierarchies, respect for the persons and property of others -- all of which is no coincidence. It's the only way we've discovered to make a long term successful society out of a bunch of unruly apes.

From which we may conclude that such concepts are independent of whatever God is supposed to have decreed them and hence must be the invention of man As such even the most religious should find no inherent contradiction in atheists behaving according to such moral principles.

Law says much the same thing, except the retribution it promises is real and timely and in the physical world, rather than in some mysterious metaphysical realm. Religion teaches; Law enforces.

13:

The thing is, about 200 years ago, English and Welsh justice underwent a massive revolution. Before, most thieves got let off, often on odd and (especially to us) bizarre technicalities.

Like Benefit of clergy, for example?

One quasi-ecclesiastical judicial rule, supplanted by "all those who are guilty are punished" and banished to the wilderness [Australia] or gaol.

Very Biblical.

14:

evolved because it facilitates our escape from the security dilemma of anarchism.

That's an interesting hypothesis. Can you explain why primate troupes, early pre-sapiens hominids that lived in tribes, and contemporary hunter-gatherer societies manage to structure their behaviour without "anarchism" (in your sense of the word -- I believe I'm using it differently) or legal codes?

Here's a hint: I don't think it's a coincidence that legal codes (such as the code of Hammurabi) appear at about the same point in the historic record as the use of money to facilitate exchange between centers of power in agricultural societies.

15:

Our Tories usually more so, and from here it looks that way for Republicans in some of the North American states.
I think most of us regard law as pragmatic. I tend to think of the Church of England as a vaccine of the mind, most people exposed to it get immune or a mild persistence but a few get the full blown phenomenon. Unseparation of religion and secular law, and justice, I'd speculate might lead to more frequent more virulent persistence of the memes. I'd regard that as less good.

16:

The argument relies on the premise that the concept of fairness is associated with religious intent.

No it doesn't.

It relies on the premise that the concept of justice as an abstraction emerges from much the same cognitive error as the concept of god.

17:

I don't agree.

Every modern body of law can be based on predominantly atheist moral philosophy. For example if you look at influential figures like Kant, he doesn't use god to justify anything, only acknowledges him as a separate concept (At least that's the impression I'm getting from his critique of pure reason, which I'm currently working through, and cursory reading of other materials).
But the definition of religion is too narrow, the statement "all governments are theocracies" is plain wrong if you look at how modern bodies of law are built, until you drop the gods from Religion and extend the term to organized world views in general. That would work.
But where does the rest of your argument end up then? Substitute Religion with organized world views, and you end up saying that monkeys and primates evolved to organize and sometimes take shortcuts in their thinking. Duh.

18:

Yeah, obviously both need to be written down.

19:

the statement "all governments are theocracies" is plain wrong if you look at how modern bodies of law are built, until you drop the gods from Religion

There are god-free religions out there. Buddhism often gets cited (although the overlap with other religious doctrines is so slippery that they tend to squeeze in, depending on your flavour of Buddhism). Confucianism qualifies, as does Taoism, and for an occidental equivalent you could look at Stoicism -- maybe Epicureanism at a pinch -- and possibly Scientology.

20:

It's a bit more complex than that. I suspect any working hypothesis taking a stab at answering it needs to involve Dunbar's Number at some point in the argument ...

21:

Primate troupes, etc., establish their coalitional affiliation on kin relations, and are fairly structured dominance hierarchies. Inter-coalitional violence is nearly constant and prosecuted savagely. Internally, they're authoritarian; externally, they're anarchist.

I can't claim to be the author of this hypothesis; I'm paraphrasing heavily from Steven Pinker's "Better Angels".

22:

I wrote way too quickly here, what I was trying to say was:
1. You can't have really good evidence of things that were traded down orally. So the earliest evidence you're going to have is primitive writing.
2. Where there's money, there's Bookkeeping, and indeed a lot of the preserved clay tablets were used for just that.
So this technology (writing) comes around, and two other technologies start using it right away, and it looks like they popped up at the same time.

So yes there's a connection between the two, but I would think of dunbar's number as a limit and writing as an enabler to get around it.

23:

There wasn't much faith to be found in those who worked there every day.

It's one of the curious quirks of religion that the professionals are often privately the least devout.

I'd say the main difference between justice and religion is self-awareness. We know that justice is something we've invented for our own needs; the religious trappings are just a way to borrow authority.

Islamic countries excepted, obviously.

24:

I'm fairly dubious about explaining human by analogy with that of other primates. Chimpanzees are strictly socially controlled and a single social misstep can get a chimpanzee beaten to death. Not a hippie commune. I think you're trying to sell us Rousseau.
Legal codes tend to be written down when you have writing. But illiterate societies have had formal legal codes. You have to be a bit of a Celt like myself to remember this.

25:

Of course British Justice also included the concept of the debtors' prison, where transaction between private individuals were redefined by the state as theft, effectively.

The prisons were run for profit [of course], the gaolers fees effectively impoverishing the debtor and his descendants.

Very biblical.

The indebted one could not work to make money to pay off the debt whilst in prison, and was kept there at the creditors whim [when the Fleet prison was closed in 1842, one inmate had been imprisoned there for thirty years, longer than any judicial gaol sentence, imprisonment NOT being regarded as a punishment in that era]

Even after a lifetime in prison, the debt remained to be paid.

Purgatory in the world of the living.

Of course the creditor almost certainly owed money himself, but the chances of the creditor being imprisoned as well were small.

One wonders how capitalism functioned under such a legal system.

This state of justice existed until 1869, in Britain.

26:

...and of course many prisons were operated on a for profit basis - by the church!

27:

Even godless religions such as Buddhism include spiritual elements, which is why I think it counts as a religion. Scientology is an interesting case, but I would think of them as a totalitarian organization, complete with a few founding myths, a bit like German fascism. I don't know Confucianism and Taoism well enough, but Stoicism doesn't feel very spiritual to me and imo doesn't qualify.

Generally it's hard to tell religion from non-religion and the title is often jealously defended or rejected, but I think organization (top-down like catholicism or scholar-pupil like buddhism) and presence of spiritual elements are some of the harder criteria.

28:

At the OP and Point four. I would posit that death is not the worst punishment you can inflict upon a person, but denying them the right to civil liberty for the rest of their life is, because being locked away and denied freedom corrodes ones personality and reduce a person to less than a slave. YMMV.

29:

I'm not going to comment on the general issue of justice as a cult, because I don't have anything well thought out to say about it. But as for capital punishment, I think your comments about it are using the wrong metrics.

* "Does it deter people from committing crimes?" is a popular question among right-wing intellectuals; I find that dubious because it seems to lead to reigns of terror and draconian penalties. But "Does it rehabilitate criminals?" is a popular question among left-wing intellectuals; I find it equally dubious because it doesn't seem to me that we have either a reliable method for rehabilitation or a reliable test for whether it's occurred, because (as C. S. Lewis argued) it's really perilous to license the state to remake human minds, and because I suspect that from an evolutionary perspective there may be some point in keeping criminal behavior in the behavioral mix. But neither of these is what the general public asks. They ask, "Is this paying the criminal back?" And I don't know of any theorist of criminal justice who's looked at the matter from that angle since part 2 of "The Genealogy of Morals."

* If you look at the "tit for tat" argument, it makes sense to return good for good: You motivate people who have benefited you to do so again, and you provide them with resources that enable them to do so. But it makes equal sense to return evil for evil: You deprive people who harm you of the ability to harm you again, and you establish yourself as a person who can't be messed with. Returning good for evil is as rational as putting out food for the coyotes who just ate your cat. It makes perfect sense to me that emotionally we should find paying people back appealing.

* We have an imperfect system for returning good for good; it's called a market economy. And we have an imperfect system for returning evil for evil; it's called a legal system.

* On the other hand, reifying the legal system into Justice or Right or Morality does not help clarify our thinking, any more than any other sort of Platonism does. So I think maybe I'm partially with you on the other propositions.

30:

Are you using justice in the sense of "the legal system" (as in "the legal system is a religious cult" would be equivalent to your phrasing of 1.)? Or in some other sense?

If yes, wouldn't the legal system being an explicit and jointly agreed upon formalisation of the ethical frameworks of the individuals forming a community not be a simpler and better-fitting explanation? Or would you argue that ethics are impossible without religion?

To me, the hierarchy is reverse - ethical impulses come first (as the evolved behavioural drivers necessary for a fixed group of organisms to cooperate over the long-term), with religious law and secular law as human attempts to add structure. Think the ability to vocalise expanding to ideographic and phonetic alphabets. In this sense, saying "justice is religion" would be equivalent to saying "pictograms are phonemes".

31:

And there were earlier changes; the Bloody Code was much bloodier than would have been acceptable a few hundred years earlier, and medieval people were happy to have a dozen intersecting and overlapping legal systems instead of a hierarchy. Medieval English jurors had rough and ready notions of self defense, and when one of the Henries tried to punish most homicide with hanging, it was remarkable how often the coroner's jury declared that a killing precisely met the legal standard for self defense.

Our generous host might want to read the beginning of Bergman's “Law and Revolution” on written and unwritten law; I am not sure what to recommend on early Mesopotamian law, but there are handbooks on that.

32:

The state, and law, steps in to make justice impersonal and therefore make personal vengeance and hence vendetta both unnecessary and illegal.

33:

Let me put in a plug for The Evolution of God. I don't know how universal this is, but according to Wright, the Big Three Abrahamic religions were political instruments from the get-go.

34:

Here's a fairly decent review of the aforementioned book.

35:

(3) breaks down because in most countries the judicial system is not the government.

Especially western states embrace the separation of powers: legislative, judiciary and executive. So if you view the judiciary as a religious cult, why not the others? They may lack in the funny robes and holy scripture department, but they make up for it with irrational beliefs and strange rites.

36:

No, it does because the government appoints the judges who interpret and enforce the law in a way favourable to the government, or favourable to the establishment.

Speaking for England and Scotland, separation of church, state and judiciary has never really caught on, the three arms being intertwined for so long - over a thousand years.

The government of Britain frequently implores us to trust it, have faith in it, and believe certain thing contrary to the available evidence [Austerity works, perhaps?]

They have usurped the power of church, or have been hiding behind it since time immemorial.

37:

"the Bloody Code was much bloodier than would have been acceptable a few hundred years earlier" - the Code was, but the results weren't. There were lots of capital offences by 1770, but the vast majority of executions were for the same old same olds: murder, robbery, burglary.

We know a lot more about the C18th, but the execution rate, especially for theft, was higher in the C17th - and higher still in the C16th. There was a lot less clemency knocking around in the 1590s than in the 1790s.

As for murder, the more we find out, the less of it there was: magistrates, coroners, judges and juries, especially a long way from London, were highly reluctant to call killing murder in the C18th. Pretty much everything was labelled either manslaughter or justifiable.

38:

Yes, exactly.

Most legal systems are quite explicit about the fact that they were made by people, for people, and can be changed by people. Reverence of the Constitution in the USA might almost rise to the level of a religion... but even then, the Constitution has been amended, and probably will be again.

We have micro-legal systems which make this obvious. The byelaws of, say, a local sports league or a beer appreciation club have been created from the ground up because people find organisation useful, not handed down from on high.

As a result, people aren't as emotionally attached to their laws as they are to their religions. Religious groups tend to regard outsiders as highly suspicious at best, hellbound manifestations of evil at worst. People who live by different laws... are just people who live by different laws. For example, reasons for friction between the English and Scots are many and various, but (having lived on both sides of the border) I really don't think the differing basis of their legal systems comes into it.

39:

I wonder if what you've been seeing is not a lame explanation for the why behind the upswing in populist movements. That is, perhaps popular media are framing more stories in terms of religion, law and political systems because they are incapable of understanding what's going on in any other terms/frame-work. The popular journalistic philosophy of 'story is everything and understanding doesn't sell any newspapers' only perpetuates myths.

It's hard to stick to and not question a religion (or religion-derived) legal system when one is continually encountering/working with very bright, hard-working, compassionate and successful people that one's childhood religion/political system had painted as idiots, lay-abouts, sinners/villains and ne'er-do-wells. This shift in the perception of an ethnic group is (probably) directly attributable to the Internet and affordable computing/connectivity.

Advocates of American-style democracy probably don't appreciate the spread of the Internet and its correlation with the decline of American international prestige/power. When major U.S. news networks focus on reporting the bickering in Congress and the Senate in the midst of another economic derailment, and pouty-mouthed celebs portrayed as role models ...Who in their right mind would want to turn their country into that?

I suggest tossing the other traditional 'estates' into the mix for this discussion: journalism, which is thriving as it continues to provide mostly glib/superficial narrative, and academia/science which is supposed to provide us hard-earned understanding in the midst of funding cuts. I think these two estates nicely balance law (day-to-day rules, i.e., how) and religion (personal/social values, i.e., why). Mapping the headlining stories/issues along these axes might yield some interesting insights.


40:

3. Governments embody mechanisms for creating and enforcing laws. It follows that all governments are theocracies.

Discuss point (3).

Semantics.

You know what, I agree. All governments are theocracies. Sure, why not. Now lets discuss why the theocracy of Norway is so much better than the theocracy of Saudi Arabia.

(Hint: it's the other cult the Saudis have)

42:

Well, they sure have a lot of cults...

43:

I see government as a way to mediate interactions between people. As you grow beyond Dunbar's Number, you can't have social pressures keep transactions fair; therefore the need for government to mediate those interactions. While my argument has been based more on explaining why we need more government these days (more complex world means more interactions with people you never actually meet -- traffic, engineers designing infrastructure and products, pollution, etc.), I would say that it is similar to religion in that it is another emergent property of groups to keep them organized and united, I think the goals differ slightly. Religion I would argue is an attempt to unify morals in a way that is self-enforcing, where government enforces what could be seen as morals without caring if they're self-enforced or externally enforced.

Darn but you ask the hard questions, Charlie...

44:

There's a fundamental difference between justice and religion, though: Laws of justice can be questioned, debated, changed. They are based on the collective judgement of the people it governs (in theory, anyway), and, as such, if attitudes change, laws change. Now, laws of religion... are something different entirely. Admittedly to a varying degree depending on the religion in question, the laws of religion are non-negotiable, since they were carved in stone by someone long dead (i. e. prophets) or otherwise not available for follow-ups (i. e. deities, Gods, or what have you).

45:

Religion kept you in line because it told you that an invisible god was watching your every movement so you'd better behave ... the Internet is one up on god because it's been demonstrated repeatedly that it
can watch and record your every waking moment. (As Weiner discovered.)

I've heard about a 'reputation economy', but is there a functioning 'reputation political system'? Could be interesting.

46:

I feel that they are only related superficially. Society is a game. Religion is a game. Games of all types have rules, rewards, and penalties. But, to say that football is poker would be stretching it. Is a casino a church and their dealers the clergy? While we the congregation submit to their rules for the chance of fortune. I think that would be reaching.

47:

Charlie, there is another pattern/underlying assumption in your argument that you seem to take so much for granted that you don't recognize it explicitly (and all the above commenters apparently join in):


0. Justice is about punishment.


That's by no means a given. What about restorative justice? Which is not at all a fancy new invention, but a staple of how justice is still understood and done in traditional societies all over the developing world today. It works without a written law and without a strong, centralized political authority. It's just as much about healing the community as it is about the individuals involved—victim and perpetrator. Thus it may have been the default system of justice in communities smaller than Dunbar's Number.

48:

0. Justice is about punishment.

Oh hell, yes -- but I knew that if I started out by talking about restorative justice it would just muddy the waters completely.

I mean, the punitive aspect of western judicial systems seems to be to some extent an attempt at abstracting revenge mechanisms so that a state can clamp down on blood feuds or related revenge cycles (presumably to reduce the damage they do to a society). Adding the idea of healing damage rather than punishing offenders or taking revenge risks tipping the whole discussion into a spiral of tail-chasing over what the goals of justice are, rather than where justice comes from.

49:

1. Justice is a religious cult.

2. Law is holy scripture.

3. Judges are priests.

4. Judicial capital punishment is human sacrifice.

Problem with this is that there's good evidence that justice precedes religious cults, although primitive tribal or clan-based justice can be incredibly crude: it is compensatory, not punitive.

Such justice is still practiced, for example in Somali Xe'er, which some libertarians love to point to as an example of homebrewed law (NOT shari'a, although they're Muslim) without a state to enforce it. Without a state, legal rulings are enforced by the (male) members of a tribe or clan, all of whom are expected to be armed and ready to fight to enforce the rulings of their judges.

With that context, we can discuss

#1. Justice as a religious cult. Depends on how you define cult, but I tend to believe that justice is ultimately a basic expression of the desire not to be cheated, which can be traced further down to Axelrod's Evolution of Cooperation from the Iterated Prisoner's Dilemma. Since even bacteria play games analogous to the Iterated Prisoner's Dilemma and punish cheaters, I'd suggest that a desire for justice, the ability to punish cheaters, in interactions is very primitive in life.

#2. Xe'er is a great counter-example of a body of law that's anything but sacred. Laws tend to be what works to settle disputes. As Jared Diamond points out in The World Until Yesterday, the problem with primitive justice is that the alternative to primitive compensatory justice tends to be warfare of the eye-for-and-eye variety. It can easily lead to generations of feuding over things like arguments about pig ownership. One of the nice things about state-based law is that they suppress these kinds of feuds: If the state kills or imprisons a murderer, the victim's family doesn't have to risk their lives performing the deed. According to Diamond, the death toll under primitive justice is five-ten times higher than it is under even the nastiest legal systems, due to deaths from feuding.

#3 is linguistically true, but otherwise suspect. The term priest comes from the Greek Presbyter (elder), which is why the executive body in a Presbyterian Church is a group of elders selected from among the congregation, not the minister. In most cases, justices are elders in the community, valued for their experience. If we're thinking of priests as trained religious practitioners, that doesn't fit judges at all. In the US, for example, they're elected or selected, and they don't get sent to judge school or serve terms as acolyte justices. AFAIK, US Supreme Court justices don't even have to be lawyers.

#4. See #2. One could argue that, if the alternative to the death penalty is multigenerational feuding that kill innocents and bystanders (cf: the Hatfields and McCoys), then perhaps the death penalty kills fewer people. That's the context of powerful state law vs. weak state law. In a state that truly monopolizes violence a place where vendettas are rare or unknown, we don't need the death penalty, only imprisonment.

In the US, a grim irony is that the death penalty may be necessary in some states, due to the weakness of the judicial system in preventing feuds. In other states, the death penalty is unnecessary, because the injustices inherent in the way it's implemented mean that the most fair thing is to outlaw it.

50:

I thought justice comes from inside our heads.

I've started distinguishing between slavishly following the law, and justice as an actual ideal to be aimed for.
It is very easy to use the law as a stick to beat people with, because they are walking whilst black or because they made a bad joke on twitter. Usually in such cases many people see that the law is in fact unjust.

Related is the concept of fairness, and I've been asking why, if life is naturally unfair, we don't try to make it fair, but then that leads to some tail chasing and confuses some kinds of people.

51:

Anarchism is variable enough that I'm not sure I would want to bring it into this debate. But there are forms of anarchism which seem able to handle big problems. Perhaps the key distinction is that power develops from the bottom up, and modern democracies are an attempt to maintain big-man power structures in the face of "power to the people".

I wouldn't say that an anarchist system couldn't have judges. A quasi-religious status might be part of how they can fend off protests at their decisions.

I've thought, a few times, that in the USA, an election is seen as something magical. Sometimes the difference between religion and magic seems a bit fine

52:

Justice is a restoration of balance

53:

Law is impersonal - it frees individuals (family, friends) from having to personally invest in a dispute, take sides. Law also limits society's responsibility toward the victim (including anyone touched by the victim). So - law is convenient (easy and quick) and cheap.

Justice is personal - the focus is on the individuals involved and less so on the act.

The death penalty is a convenient way for a society to 'fix' a problem that it's unable to address or doesn't want to admit it has.

54:

Magic is more primitive than religion. I.e., religion derives from magic, not the converse.

Therefore calling law a magic system of government does not imply that it's religious, merely that it's "like a religion" in certain ways.

N.B.: If you think of animism as a religion, then you could make the argument work, but each rock would end up with it's own god, and possibly each electron. (SOMETHING's got to decide which slot it goes through in the two slot experiment.) This could reasonably be called a religious view, but it's not much like any modern religious view. Look up, and consider the implications of, the term "genius locus" (more commonly "genii loci"). And remember that the Romans were FAR from a primitive religion.

55:

You might want to look into the case history of a Chimpanzee called Paradise. A multiple serial murderess, who essentially killed off her troupe of Chimpanzees.

Also, may non-violent relations between Chimpanzees are between those who AREN'T closely related. (I'll grant that it's a small percentage.)

OTOH, fear of the stranger is clearly a good survival strategy. But that doesn't mean you always either run or fight.

56:

Religion is a human invention. Justice is a human invention. Laws are human inventions. The idea of doing justice through laws is a human invention. Moreover, shoes are a human invention, and the idea of wearing shoes out of doors is a human invention. Therefore all criminal justice systems are in the business of providing a specialised variety of shoes, and all governments are cobblers.

Chris - have you got a ref for that bit of Beccaria? I'm intrigued, because it runs directly counter to an unfinished paper I've been sitting on for a while, in which I argued that uncertainty is fundamental to the law & law-abiding behaviour. If deterrence were perfect - if you were certain that action X would bring about consequence Y and guided your behaviour accordingly - there would be (or have been) no morally-informed choice to make: you'd simply be living in a differently-shaped environment, in which certain choices were either costly or unavailable. Deterrence, in other words, is more like taxation (or situational crime prevention) than it is like the criminal law. Bit of Benjamin goes here.

57:

I think I agree with Stross, but I would formulate the points differently.

The first point that Justice is a religious cult is, in my opinion, poorly worded.

For one thing, "cult" is almost as inflammatory as the other 4-letter word that begins with c. For another it's almost always applied to small groups of people. I think it's a bit strange to label most of the population of the world as a cult.

But the point aside from that works with a small leap from what I would normally say.

What I would say is that every religion has a faith component. Some necessary thing that must be believed to be true without sufficient evidence.

The Justice concept certainly fits. One must believe--against all rational evidence--that if one does what is right, others will do the same. And we will magically live in a "just" world. It's not necessary to have a universally defined concept in order to subscribe to this concept. And, indeed, the fact that there are multiple concepts of justice tends to lead one down the faith path.

Not only do you have to believe that people will do what is "right", but you must also believe that they will do your version of "right."

It strikes me as an almost no-brainer to put justice in the faith category.

The leap I think I see here is that Stross is suggesting that any system with a faith component is, by definition, a religion. If you are willing to accept that leap, then all the other points follow easily. If you do not accept a faith component as both necessary and sufficient conditions of a religion, then you obviously disagree.

I'm comfortable with the leap, so I agree.

The disagreement from some posters seems to come from the attitude that x isn't a religion because I don't call it a religion. I think that's a lazy way of thinking about the topic.

58:

Just so people understand where I'm coming from (I'm new to this blog and its comments) I think that all faiths are tantamount to insanity.

Faith in something--by definition--is believing something to be true without sufficient evidence. That is, in many circumstances, the definition of insanity. If one had sufficient evidence, it wouldn't be called faith. It would be called knowledge.

59:

Ahem: where I come from, "cult" is a blanket term that covers all superstition-based belief systems. In other words, the Roman Catholic Church is as much a cult as the Church of Scientology.

(Also, you probably want to reconsider talking about me in the third person when we're having a conversation.)

60:

Seems the discussion is focused on origins, how about where law and justice are heading, and what forces are likely to shape them in the future?

I don't know what status neuroscience/psychology currently have in law/justice systems worldwide. These sciences are already being used to evaluate individuals brought up on charges, potential jury members up to a point in the Western world. How well is it working? How does use of such sciences change how law is practiced? Who benefits?

Knowing (measuring) this would impact the transitioning from 'faith-' to 'fact-based' law.

61:

Seeing as you're going for "Justice as a religion", I'm surprised that no-one has gone for "Political ideology as a religion", or do we all just agree that as a given?

After all, if you were a Communist Party member in the USSR, you had an advantage (in job selection, education, promotion); the ideologists were the priests; and heretics suffered. The same applied to the NSDAP. True believers receive their reward, no need for an afterlife.

Not meaning in any way to conflate US domestic politics with the above two examples, but it's got two religions, not one. When one gets the upper hand, there are reappointments across Government (see: Ambassadors and Judges as political appointees). It becomes difficult to operate at local government without the support of one of the two parties (see: elections for Sheriff, Mayor, county dogcatcher). There is an impressive level of vitriol between them (see: Fox News), and statements are made on the basis of faith not fact (see: Santorum and the Dutch / Mapmakers and Moose migration).*

Britain hasn't got the same vehemence, unless you count "minority politicians desperately seeking votes" - is this the result of having three major parties in England (four in Scotland and Wales) that have thin and orthogonal relationships with the "actual" religions?

Looking at countries with more fractured politics, and a history of coalition, do they have a less religious view of voting habits?

* Snopes says the Mapmaker thing is false.

62:
4. Judicial capital punishment is human sacrifice.

This is just the specific case of a more general rule, that any judicial punishment offered as solely a "deterrent" to stop crime is a sacrifice in the same way that burning goat carcase on an altar is a sacrifice to bring the rains.

63:
Adding the idea of healing damage rather than punishing offenders or taking revenge risks tipping the whole discussion into a spiral of tail-chasing over what the goals of justice are, rather than where justice comes from.

For the communities that I'm thinking of the answer to the question where justice comes from seems quite clear: from the community's perception that it has been hurt (or damaged), and that this damage has to be repaired, which is (as everything is) a community effort. The perpetrator is part of the community (and remains part of it), thus it's their effort as well. But the community as a whole (with—in many traditional societies—the elders as its exponents/speakers/leaders) is bearing the responsibility.

Thus I'm proposing that justice at its core is a community-self-repair-mechanism. In other words: it's inherent to human communities. (I'm sticking to the term 'community' rather than 'society' because I want to keep it clear that I'm having rather small groups in mind.) No recourse to religion needed.

By the way: not only in Xe'er society, but in much of sub-Sahara Africa traditional community justice (which you may call 'restorative' or 'compensatory') and western influenced law live happily side by side. The Tanzanian constitution for instance explicitly recognizes the traditional (tribal and clan-based) justice system.

64:

A few of points.

  • Your point 3 is really not interesting unless you just want to kvetch. Sure, governments are theocracies. So what?
  • Any killing governments do is human sacrifice, not just capital punishment. It's got the same causal relationship to the desired outcome as human sacrifice has, so it's human sacrifice. However, there is no god being propitiated, so in a sense it's even stupider.
  • The really interesting thing you pointed out is that justice is the same sort of cognitive error as believing that bad weather is a punishment meted out by the gods. So the really interesting corollary to that is that there is science to be done. That is what we should be discussing.
65:

Equating two ill-defined concepts like "justice" and "religion" seems to be an effective troll bait. Especially since English speakers are handicapped by having one word "justice" for several things:


  • justice = equity / fairness
  • justice = judiciary
  • justice = judge
  • justice = law

I think we should concentrate on the second meaning here. Justice as equity/justness is an illusion anyway, or to quote a practitioner:

"Justice is incidental to law and order."

66:

I'm thinking more about the 12th through 14th centuries, where I have the strong impression that the English crown maimed and executed less people for more serious offenses than its 18th century counterpart did. But that period is not my specialty.

It still seems to be axiomatic that people want to achieve justice because justice is the way things ought to be, but in #45 Charlie seems to say that he wants to talk about what makes a situation just. That's a good question, but a bit too big for me right now.

67:

Another reason why (3) is wrong: theocracies get their legitimization from religion.
But modern governments don't get their legitimization from providing justice (or from any other religion); they are legitimized by elections.

68:

Point (4) is more questionable, but if one notes that capital punishment is not a necessity for crime prevention (and it certainly isn't rehabilitative!) then one is forced to ask why it's associated with justice.

Proponents of capital punishment usually point out the low relapse rate.

In my view it's more the classical three-step fallacy of human politics:
Something must be done - Executing people is doing something - So we must execute people.

69:

In response to the low relapse rate, I like to cite the high false-positive rate (running at 10-15% in the UK, historically, for pre-1965 capital cases reviewed using DNA from retained evidence), and the low-recidivism rate among prisoners released after serving a life sentence for murder (recidivism rate << historic false positive rate). Upshot: capital punishment in the UK probably killed more innocent people than it saved.

70:

I meant no disrespect. I don't know you. I was trying to be polite by not assuming a first-name basis.

71:

Well, my opinion is that calling anything a religion is bad enough. For reasons I explained in my second post. I guess my point is that if you want people to buy into your ideas, you need to perhaps not antagonize them so much.

Then again, William S. Burroughs.

So perhaps you win.

72:

Hm, so how would you write a "todays-troll-bait.html" without antagonizing anyone?

73:

OK, 'I'll try a s slab...

1. Justice is a religious cult.

One of the problems I have with this is the lack of a definition of "religion". You already mentioned it's somewhat debateable "religions" need a god. As for the examples, "classical" Buddhism is not exactly atheist, it's just being a deva means still being subject to the circle of life, death and rebirth. They are subject to the law of dharma, where this law might have some similarities to "Tao" or "Logos".

In Scientology, which might include freezoners, we all are actually "gods" or thetans, we have just been brainwashed by Xenu to forget it (Hm, might make for a nice KULT campaign).

As for Confucianism, Taoism, and Stoicism, i'm not that much into Chinese belief systems, but first of, at least Taoism somewhat blends into Chinese folk religion, which has some "gods" or powerful spirits:

http://en.wikipedia.org/wiki/Chinese_folk_religion

Second of, even if you want the pure unadulterated "tao" in Taoism or "logos" in Stoicism, there might be a certain tendency to apply personal attributed, or "godhood" to it. In Stoicism, some Greek Stoics of course identified the "logos" with Zeus, there is a famous hymn about this:

http://www.utexas.edu/courses/citylife/readings/cleanthes_hymn.html

And of course, there is also a Christian tradition of equating the "logos" with Jesus, building on earlier ideas in Hellenistic Judaism:

http://en.wikipedia.org/wiki/Logos#Logos_in_Hellenistic_Judaism

Epicureanism, OTOH, is quite a funny case; like Buddhism, it's not atheist, Epicur makes it quite plainl gods exists, but they don't care for us lesser humans and don't interact with us. Opinions why he did so differ somewhat, one school of thought says he wanted to evade the fate of Socrates, another indicates he kept them for aesthetic reasons. As for us humans, we dissolve into our atoms as we die, which includes the special "soul atoms". as for Epicur's naturalism, we tend to think of him as some kind of pre-Modern Enlightenment guy, but it seems like the main impetus of Epicureans searching for "natural" explanations was to eliminate supernatural ones and fear. If so, they would have had little time for scientific uncertainties.

So, let's assume there are three factors to religions, first of "things happening are subject to a reason, sometimes hidden", second of "things around us have a personality just like us", and third of "there is a certain way things are meant to happen". For the first two, there might be some dynamics, e.g. maybe early humans thought everything happened thanks to spirits, later on, some of these spirits were conceptualized as basic forces or laws, note, Greek "daimon" seems to be somewhat inbetween

http://en.wikipedia.org/wiki/Daemon_(classical_mythology)

and later of, some of these laws are personalized as gods.

Sorry for the excursion, it seems clear that justice is somewhat close to the third aspect, especially with the "natural law" guys. In our case, the second aspect doesn't fit in, but as seen with some religions, it might. But most defenders of justice would be quite fast to cite the first aspect for things which might happen if justice is violated.

2. Law is holy scripture.

Again, I see some overlap with the idea of "natural law". Though we could argue "Law" is more like exegetical literature that can be changed. Though the boundary is somewhat complicated, as can be seen with the Talmud.

3. Judges are priests.

If we analyse legal systems as religions, this is somewhat inevitable.

4. Judicial capital punishment is human sacrifice.

AFAIK there is one school of thought in ethnology capital punishment WAS originally a human sacrifice, the crime has disturbed the "way things are meant to happen", so we need a sacrifice to pull it right. Of course, there are other reasons like revenge etc. Might be an explanation for capital punishment for victimless "crimes", of course, hanging for practised male homosexuality, for example.

As for the corrolaries:

1. Justice-as-religion implies a seat of absolute authority from which judgements may be passed

Actually, when I explained religion with three factos, I forgot a fourth one; there is a tendency to unite the reasons and personalities in question. Might mean monotheism and TOE are somewhat related.

So, no, I don't think this means the has to be ONE seat of absolute authority, it might happen later on, with one rulebook, but ther is nothing against playing be multiple ones.

2. Anarchism is hated and loathed by the followers of the Cult of Justice because it occupies a role equivalent to Atheism in the context of religions

Having something of a soft spot for Kropotkin, I think that depends somewhat on the definition of "anarchism". There are quite some libertarian socialists who seem to be ardent followers of the Cult of Justice. Just ask Noam Chomsky. OTOH, I guess you differentiate somewhat between capital-J Justice, e.g. a legal system, and small-j justice, e.g. the belief in fairness in human society. Most libertarian socialists would be strong believers in the latter, but be somewhat sceptical of the former.

If what you means by "anarchism" complies more with what's called "anomie",

http://en.wikipedia.org/wiki/Anomie

well, yes, but again, most "anarchists", and I'm talking both libertarian socialists, individual anarchists and even anarcho-capitalists would call for certain norms. Even if it's just sanctity of of property. OTOH, Stirner and Nietzche might be more difficult to pidgeon-hole.

3. Governments embody mechanisms for creating and enforcing laws. It follows that all governments are theocracies.

Sensu strictu only if the judges are the rulers. ;)

OTOH, most gouvernments are quite tied in with "there is a certain way things are meant to happen", so I don't think that one really that shocking.

If you excuse me, I have to pay my regards to the cult of late-night caffeine consumption.

74:

As to (2), the policy of following precedent makes law not only scripture, but also continuously growing scripture.

To be able to make a decision, a judge must follow the scriptures, research all the new decisions that the barristers have put before him, and engage in amazing feats of pilpul to make a decision that fits the individual case. This then becomes precedent other judges must follow, thus new scripture.

This argues that the justice system, at least, is a unusual kind of theocracy, one in which the God is present and adding to the scriptures. With the judges as her avatars, perhaps (:-))

--dave

75:

With regard to the idea that fairness at the heart of this, it might be interesting to note that fairness is a strongly cultured concept.

I can't find the paper at the moment, bit there was quite a fuss a few months ago when some standard economics experiments were repeated outside of North America.

In other cultures resource splits deemed optimal were much less likely to be even - if for instance taking from someone exposed you to an obligation.

76:

The fact that certain elements of the structure and culture of the legal system bear a superficial resemblance to religious organizations shouldn't be considered evidence that they have the same (or even a similar) metaphysical foundation. It could just as easily be said that corporations are religions as well, that the CEO is the prophet, the executives his disciples, the managers his acolytes, the other employees the laity, and that their product line are relics being sold as indulgences to people with a promise of salvation (which in this context is material comfort and psychological validation).

78:

Besides which, the essential element of all religions that sets them apart from other ideologies is the promise of life after death. Without that, it's not a religion.

79:

You haven't been watching Apple in the last about 15 years, have you? ;)

80:
the essential element of all religions that sets them apart from other ideologies is the promise of life after death.

Err, life after death is even more variable across multiple religions than the idea of gods.

Greek and Roman religion were originally quite uninterested in it, Saducee Judaism didn't believe into life after death, Buddhism thinks something stays after death, the dharma, but they stress it's no soul...

81:

People organize their ideas and values into ideological frameworks, certainly, and work to promulgate them to augment their own affirmation, or in some cases to "defend" them from refutation, to protect themselves from cognitive dissonance. That can be found in every sphere of human endeavor. It really only deserves to be called a "religion" if there is an explicit promise of surviving death for believing in it and/or obeying certain commandments.

82:

Well, as already mentioned, I think there are quite some religions that are either not that interested in life after death or flat out deny it. I agree with the commandments, of course, reglementation of behaviour seem central to all religions, e.g. in Taoism you act in accordance with the "Tao".

If I'd have to pull an explanation out of my ass, many cultures are not that concerned with the individual, thus personal existence after death is not that important, survival of the group is. If you don't obey, your country is invaded and your are killed and/or raped etc.

Life after death only hangs on when you get a hefty dose of individualism or self-actualization.

83:

As to whether innocent people have died unnecessarily through the death penalty, Kai Lung:

"In cases of absolute wrongdoing, it is impossible for even the least experienced official to deviate from the iron rule of conduct. Cause and effect; effect and cause: these two facets of an absolute system corollorate with absolute precision. Two persons having committed a Category One crime, two persons will automatically suffer a Category One punishment, and the Essential Equipoise of justice will therefore be painlessly maintained. "

"It is what the scrupulous would look for," assented Chun.

"It is what they will inevitably see," replied the magistrate. "Should your leisurely footsteps chance to turn in the direction of the public execution ground on the occasion of the next general felicity, your discriminating eyes will receive assurance that that the feet of the depraved will find no resting-place on the upright soil of Hoo-Yang."

"It is indeed a matter of rejoicing that your penetrating gaze recognised the degraded miscreants who will thus be brought to an appropriate end."

"If," the magistrate remarked profoundly, "so sublime a principle as justice should depend on so fallible a thread as a single human attribute, all feeling of security would be gone for ever. The two misbegotten harbingers of shame who attacked this hard-striving person will sooner or later meet with a fate that will be both painful and grotesque. In the meantime the wholesome moral of retribution will be inculcated in wrongdoers by two others (doubtless quite as abandoned in their various ways) demonstrating that authority does not slumber."

"It has been claimed that there is equally one law for the just and the unjust," assented Chun, "and in a certain guise --"

"Your loyal approbation nourishes the roots of our endeavour," interposed the magistrate, rewarding the speaker with a handful of melon seeds cast in his direction.

Kai Lung Unrolls His Mat, Earnest Bramah, 1928

84:

The parallels between religion and law/justice may be functional.

A religion is arguably a method for getting people to behave a certain way while investing a low amount of effort in enforcement- you don't have to have a priest following every parishoner around to get them to behave. It does this by convincing the controlled that the system is both powerful (omnipotent deities, inescapable karma, etc) and moral. If the perception of either breaks down, people abandon the religion.

Legal justice does much the same- by attempting to convince the citizenry it polices that it's both mostly able to enforce the law and that the laws should be followed because they're basically just. If the public perceive either to be untrue, cue the riots and revolution...with the unpleasant side effects that the entire body of law may be tossed aside (taking the chance to nick a TV from a store window during a riot, say).

85:

It's good troll bait, but it doesn't stand up to the atheist's main objection against religion: that it assumes a source of immutable, absolute and perfect morality. Justice, for all its flaws, allows that its own laws are indeed mutable and imperfect. In fact, the English common law system (as opposed to the continental statutory system) starts out with the assumption that every case is treated on its individual merit, and it is up to the judge and jury to use their own judgement and vision of fairness to determine whether a crime has been committed.

86:

Point (3) feels a little bit like a forced conclusion from the structure of the underlying arguments.

I feel like there are more interesting parallels to look at in the idea of self-contained systems.

Both our legal and religious structures are essentially societal codes, right? They're a collection of ideas that we've codified into a structure that gives them the authority to carry out their mandates.

We accept forms of collective governance that make sense to us. We might quibble about the details of implementation, but most rational people will agree we need *some* kind of public cooperation, be it roads, telecommunication networks, political structures, etc.

Atheists would disagree, but most believers in a religion would take the position that the moral good from their religiousness outweighs the drawbacks (i.e. some of us are a bit too enthusiastic).

kda @22 pointed out that bookkeeping, religion and government all started to get organised around about the time they could write things down. There are some good thoughts to be had over how *much* our tendencies to organise, group, and heuristic our way through life influenced those early-civilisation developments.

If 'all governments are theocracies' is true, then 'all theocracies are governments' also holds true. The application of theocracy looks a lot like the application of government.

TL,DR: government and justice are both organised ideas.

87:

I doubt if respect for the awful majesty of the law survives much contact with it. After a recent interview with, God help me, one of my lawyers, I texted a friend, 'In Albania I'd deal with this with a 9 mm.'

88:

one of the funs of hailing from a family of musicians is being quite close to the local clergy. since talent is somewhat rare and regretably doesn't obey religious schisms, any clergy, or at least both catholic and protestant ones.

suffice it to say i'm not that surprised quite a few comedians had stints as church musicians or acolytes...

89:

Cannot agree
I'm with H Beam Piper in that a theocracy is the absolute worst form of guvmint.
See DPRK, for a truly horrible example of this.
Or are you reacting to the way Camoron is echoing the vile Blair & "doing god", abetted by the simplistic-to-the-point-of lunacy Warsi?

El @ 8 nails it IMHO - there are too many failures & in public, too, for law-aa-a-theocracy to work.
Even the real religions are falling down all over the place, as information spreads. Even in the religion of submission, actually.

SoV
OF COURSE the "Abrahamic" religions are political - tools of control. Nothing new at all, there .....

Charlie @ 59 - ahem - didn't Jack Chalker once suggest that once a cult had 15-20% of the poulation following it, it was upgraded to a religion?
[ He was taking the piss, of course. ]

Perhaps the killer to your proposition, is this quote:
A temple was worth a dozen barracks; a militia-man carrying a gun could control a small unarmed crowd only for as long as he was present; however, a single priest could put a policeman inside the head of every one of their flock, forever.
Ian M. Banks: “Matter”

90:

Nearly every single person in "the West", especially in the Anglosphere, has an essentially modern, Protestant-influenced idea of what "religion" is or does. That's why people often say that religion requires a deity, or a belief in life after death, or a faith-based set of premises, et cetera.

Quibbling about whether or not Chinese folk religion, this or that form of Buddhism or Hinduism, or whatever else you might care to name qualify as "religion" doesn't really matter much if you're using the common Western idea of what "religion" is, which only includes these very different traditions under its umbrella by misrepresenting or misunderstanding what they're about.

A better question is whether or not Charlie is correct to frame the concept of "justice" as, essentially, a common superstition of society with attendant rituals, functionaries, and other cruft, which seems to be what he basically means by "religion".

The answer to that, I think, really depends on whether or not you think either there's a more effective way to achieve the "justice idea" than the institutionalised system we have, or whether or not there's a way to reform the system we have to achieve a more grounded, less mythical goal than "justice".

I tend towards the latter; to my mind, we need some kind of system to deal with those who offend against the common good and the rights of others, but that doesn't mean that we need to mythologise it beyond the practicalities of "how do we minimise this sort of thing from happening?" Indeed, I suspect that the idea of "justice" gets in the way because people become more concerned with some kind of "payback" or "just deserts for what he done", which gets in the way of effectively figuring out how, for instance, to get people who steal from or hurt others to stop doing that.

In essence I suspect that the most effective methods of prevention and rehabilitation we can implement will fail to be so implemented because it will look to too many like "they" are "getting away with it".

91:

Cannot agree
I'm with H Beam Piper in that a theocracy is the absolute worst form of guvmint.

Now, it wouldn't be just to tar all theocracies over the same brush. Just imagine a theocracy that knows two competing cults: a barrista cult which worships coffee and a tea ceremony cult. Both would urge their followers to follow their rites only and the one which has the most followers gets to form the government. A barrista government might impose a tax on consuming boring drinks like coke, water or wine (or tea); a tea ceremony government might subsidize the import of tea leaves. Both would of course pass any number of laws which have nothing to do with the consumption of hot beverages at all. Depending on the general happiness of the public the followers would shift from coffee to tea or back, thus allowing a peaceful change of government.

What would be so bad about such a theocracy?

92:

the mate rebellion?

p.s. on another note, anybody else planning to come to 30c3?

93:

What would be so bad about such a theocracy?

<grand-guignol>It would kind of suck if the radical wing of the barrista cult seized power and began fuelling their brews using lard melted from the corpses of the tea-drinking heretics they executed by burning on their sanctified bean-roasters, wouldn't it?</grand-guignol>

94:

I could get behind that...

95:

* Goes to kitchen to make another mug of tea *

96:

"Mother! What now!"
Alice Todd snapped off two rounds of 6.5mm Mauser from the doorway, and ducked back. "Behind the bag of flour."
Andromeda Todd had to almost crawl into the store-cupboard, there was a half-hidden space forced by the corner of the kitchen. She wriggled back out with an olive-green metal box. She read out the label. "M34 Smoke WP 6 off" She paused. "I thought they'd made using this stuff a war crime."
Alice grinned manically. "Those guys don't like Hot Chocolate."
Andromeda nodded. "Works for me." She peeled off the foil seal under the lid, took out a grenade, and started screwing in a fuze. "I'll fuze two of them."
"Make it three. Some of those bastards drink Ovaltine."

97:

I try to rephrase my objection to the "justice equals religion" theory:

You're taking a particular way of practising justice (with written laws, professional and learned judges, and a focus on punishing the perpetrator), and try to stipulate nothing less than "patterns of human behaviour" from it, without asking how representative the way of practising justice that you have chosen is for humanity in the first place. Isn't that just another form of the WEIRD fallacy cited in one of the comments above?

The way in which the practise of justice is put in scene in our court rooms as we have become accustomed to is certainly borrowing heavily from religious imagery. I don't doubt that. There is a goddess—Justitia—watching over the entrance to many a court house, after all. And the judges are dressed just like protestant ministers (in Germany that's because in Prussia they were among the people who got to wear academic gowns in public: professors, judges, pastors, and rabbis). And everybody uses an arcane and slightly archaic language.

So yes, this particular way of practising justice bears some similarity to religion (or rather to a particular way of practising religion). But that doesn't say anything about either "justice" or "religion" in general.

I mostly agree with your statement at the end:

so "justice" is a by-product of the mechanisms that allow primates to socialize with one another without intra-group predation. It emerges not as a pre-formed body of rules, but as a predisposition to divide behaviours into "good" and "bad" categories

with the caveat that there's no need to put religion into the picture. "Good" and "bad" can be most obviously defined as "good or bad for the group". No transcendence needed, it's about what allows the group to continue functioning as a group.

98:

actually, when I talk about "religion", I keep thinking not so much about Christianity but the system the term was first used for, e.g. the Ancient Roman one:

http://en.wikipedia.org/wiki/Religion_in_ancient_Rome

And in Ancient Rome, religious rites were everywhere, permeating every aspect of lie. And they kept them around a long time. In fact, quite a few of our ceremonies, both religious and secular ones, are continuation of Roman religious practices, e.g. in marriage.

Funny thing is, I guess at least with Augustus, very few actually believed in the actual Jupiter stick. If we look at the Roman emperors, quite a few were members of fashionable philosopher's religions like stoicism, some were that kind of former atheist that realizes himself to be god, some came from different ethnoreligious groups and tried to get them accepted in Rome, some were into esoteric mystic religions, and of the latter, finally they became Christians, at least in name. But all of these guys also held the title of "pontifex maximus", the supreme priest of Rome:

http://en.wikipedia.org/wiki/Pontifex_Maximus

And they finally dropped it only with Gratian, about 10 years after Julian, the last non-Christian emperor. Afterwards, it became somewhat loosely affiliated with the pope. And as you can see with the article, in fact the "pontifex maximus" did quite a few things besides sacrifices and was quite tied in with the administration.

IMHO part of the problem is we have still no working definition of religion; we could try "supernatural explanation", but the problem is the very idea of supernatural is somewhat specific to the religions we know, I guess jinns and like are just as natural to some desert dwellers as the gravitational force is to us.

OTOH, in "Rule 34", OGH has one not so neurotypical culprit muse about day-to-day life, with people not behaving in a certain way "because the could be found out", with said culprit pointing out this is highly unlikely. Maybe part of impetus for the idea of an omniscient god and life after death with punishment for sins is a rationalization of these feelings. Saying "Err, because the ghost see everything and punish me, and after death I have to suffer for it." carries somewhat less cognitive dissonance than admitting you only do so because you feel like it to any divergently Theory of mind-ed.

99:

Death those who bruise the hallowed leaf to make the heresy that is black tea! We can then get into the arguments over whether a special dispensation is allowed to those who live at high altitude, for the sin that is "infusing the hallowed leaf in water temperatures other than 100C".

(I'm mostly a Darjeeling drinker at home, with occasional forays into Assam and "English Breakfast", but have failed to persuading the wife of the validity of Rooibosch. At work, it's Colombian brown death-march juice).

100:

I experimented with making tea in an espresso machine once. What is the punishment for that?

101:

Bear with me while I re-state your argument, because when I broke it down this way there was some really good stuff that falls out.

Humans are driven by the need for fairness. All human societies express this in the concept of Justice, the idea that behaviors actually cause rewards and punishment. (I'm with you so far, and I think terms like "poetic justice", "karmic retribution" and every kid ever screaming "that's not fair!" make your case nicely.)

This is logically extended to the premise that all human civilizations incorporate the concept of Justice as a key mechanism for balancing self-interest and group-interest. Civilizations use institutions - government, religious, military, economic, academic - to codify and enforce laws that reward and punish behaviors.

We can then observe that 99% of the time historically and currently these institutions are dominated by a small number of men who have risen to the apex of these institutions and are heavily invested in sustaining their positions and the strength of the institution. This results in a second set of laws designed to prevent challenges to the authority of those institutions. Additionally and inevitably, institutions grant privileges to those with the power to directly sustain that institutional authority.

Governments, Corporations, Churches, and Armies do not understand this human need for Justice. The inevitable erosion of fairness in the service of institutional authority and individual privilege is a universal theme across all human civilizations.

This raises some great SF themes:
1) Can any species without the concept of Justice evolve a civilization? What could those look like?
2) Can any human civilization support the concept of Justice without institutional embodiment?

102:

I never understood the attraction of tea or coffee anyway.

103:

You may jest, but the machine in my kitchen is capable of making either expresso1 or tea.

1 It's perfectly capable of making espresso too, should I use an Italian blend rather than a French one.2

2 And there's a whole holy war there as to that spelling, all because Italian avoids the letter 'x'

104:

What makes you think that justice is a by-product? It may be the best mechanism known.

105:

how did it turn out?

106:

"Related is the concept of fairness, and I've been asking why, if life is naturally unfair, we don't try to make it fair, but then that leads to some tail chasing and confuses some kinds of people."

That's usually my rebuttal to American conservative "rub a brick on it" morality. "No, nobody ever said life is fair, but wouldn't it be something to strive for? Nobody ever said we should have clothes or central heating or beer, none of that exists in the natural world, all of it is man-made. Why not have fairness to go along with vaccines and the internet?"

107:

"The first point that Justice is a religious cult is, in my opinion, poorly worded."

Secular Religion is often used in this context. It's often said that a cult is a small, unpopular religion and a religion is a large, popular cult.

You can often end up in a war of definitions with this sort of thing.

108:

"Saducee Judaism didn't believe into life after death"

This I was never quite able to wrap my brain around. So they believe in the existence of a God who creates human life but He also has no interest in preserving us after death? I know the personal God thing is more Christian but it seems strange to me that one could imagine God and not imagine he would preserve us after death.

109:

Modern Justice has to be a religion, because we keep using the same methods even though they are demonstrably ineffective.

110:

Some countries do; others learn from their mistakes and appear to have better penal systems (and societies in general), if you want to reduce offending that is. If you just want to kill as many people as possible, then the USA is one of the really good places.

111:

Well, first of all, 'believe'-->'believed'---there are no Sadducees left, their beliefs too tied-up with the Temple to survive its fall, and their lack of a life post-death being too harsh seeming for a people who saw no justice in this world.

Plenty of people believe in a God who creates canine and feline life but doesn't care to give it an existence past the death of the body. More fundamentally, the Bible (as opposed to Apocryphal and Christian fanfic) all-but-says that the grave is the end of all life, and the Sadducee's fundamental difference to the Pharisees (scribes) was their insistence that only the Bible were authoritative.

(Luther might have liked them...scripture only and 'the grave' where others translated-in 'Hell', but like Muhammed, he started by approving of the Jews but grew increasingly hostile as they kept on refusing to give him their imprimatur by converting to his reformed faith.)

Didn't Turing once speculate that eternal life was God's emulating us?

112:

Without our US justice system, how would we punish people for their high melanin content?

113:

A lot of scared, typically ignorant people, think the law means significantly more than it is. Many American's think of law in a religious way: it is the foundation for their ethics, not just constraints on the rights. They may not agree with legal decisions, but they are legal in the same way that most of these same people expect religions to be the foundation of all truth. Laws are worth establishing, but they are not the reason we do not kill and maim each other. We do not kill and main each for practical (mostly secular) reasons, not because the justice system says we should not.

114:

Sorry - got a little off topic there. I'll shut up now. :)

115:

I can't agree, but there are some who believe that retributive vengeance is not only a practical idea but a moral imperative.

Haidt's work on the moral foundations of (American) liberals and conservatives places a much higher importance in Authority and Purity in the conservative camp, though far from exclusively so. To the mind interested in Purity, the presence of the Impure defiles all and every, as ink stains a bottle of milk (as an old catechism I found once illustrated).

116:

If we assume #3 to be true, justice is the only religion to construct a reasonable functional facsimile of its own god, consciously -- which is amusing, albeit tangential.

117:

Depends on the institution you have to answer to. If it's the Roman Inquisition, if you speak some Italian and look the part, I guess you have to confess your sins and are subjected to some weeks of arrest, during which you have to learn how to use the machine. Maybe afterwards you are given to the secular powers for further punishment, but we're speaking Rome in Italy[1] here, so I guess you can bribe your way with some luck.

As for the Spanish Inquisition, they are subject to the Spanish state, so expect some lectures on EU regulations for making tea or coffee. Oh, and I guess afterwards they will kill you in some gruesome way, likely with said machine. One Spanish neighbour brewing an especially fiendish concotion, I have some ideas about caffeine overdose, my last experience would indicate something like "totally calm and concentrated, while you want to do some marathon running, dancing all night and cleaning the house, of course all at once".

[1] The one thing Southern and Northern Italians agree on is Rome is "cazzo"

118:

One word: neuroadaption. AFAIR about 100 mg of caffeine a day is enough to upregulate adenosine receptors. Which means after a few days you need the stuff just to stay normal. Mistaking ease of withdrawel symptoms for stimulation, we poor buggers go on and on in our fiendish ways.

119:

Well, first of, the God we're speaking about is also the God of the Pentateuch, who is generally known not to be that nice a chap to be around. Later on, he mellowed up somewhat, but I guess these parts were not that much in favor with the Saducees, interpreting it as becoming too soft.

Which brings us to the second point, we have not that much data on the Saducees, but it seems they were a conservative movement of the upper class, while "progressive" movements like the pharisees or what was to become Christianity cartered to the common people and believed into a life after death. So maybe before that they were somewhat undecided on the issue, but later on adopted a strict stance against an afterlife in opposition to those other groups.

120:

agree broadly with heteromeles(+1), library.mole(+) et al above ..

justice is a subjective political view of a group - and becomes Justice once a single group holds sway.

Before there was Justice, and single-group domination by hammurabi or the curia or whomsoever, societies broadly shared lore concerning recompense (not 'justice') that would dampen smoldering vendettas.

I found an icelandic saga quite illuminating about the roots of common law: Burning Njal http://www.gutenberg.org/files/17919/17919-h/17919-h.htm

also of interest: brehon law
http://ua_tuathal.tripod.com/law.html

121:

I was initially inclined to reject the Governments as Theocracy proposition but on closer examination it has a few correlations.

Governments control initiation into the cult through citizenship procedures and rituals.

Governments create castes whose function it is to keep the cult running.

Governments exert a claim on peoples loyalty based on their birth into the nation. I think it is the expectation which most closely associates them with religion. We say this is an 'American' child with every bit of the thoughtlessness with which we label a child a Christian or what have you.

On the con side though I cant really see how Governments base their authority on some sort of divine revelation. Even fairly harsh legal codes are more flexible than religious dogmas (except where they are the same of course)

122:

'It's often said that a cult is a small, unpopular religion and a religion is a large, popular cult. '

I prefer the definition that a cult is a tight community with associated belief system joined in adulthood, whereas a religion is something you are born into. It's generally predictive of behaviour, and doesn't tie you into knots trying to classify juche, liberalism, Buddhism, etc. Two engineering students who join Maoist and Islamist groups have a lot more in common with each other than either has with a Bangladeshi or Tibetan villager.

Similarly, an explicit theocracy that has no religious organisation outside the state has little to distinguish it from an atheist regime that successfully destroyed or coopted all such institutions[1].

I mean, you would pretty much have to actually believe in magic to think a belief system being explicitly supernatural could have a causal impact on the properties of the associated community or state. If not magic, what's the proposed mechanism by which the distinction would manifest itself?

[1]North Korea, by most accounts, successfully did this back in the 1960s. More recently, Burma/Myanmar appears to have, ultimately, failed to do so. It could kill the monks, but it couldn't persuade its generals that carrying on killing the monks was the best available long term plan. Perhaps because they weren't being invaded at the time...

123:

one of the saner ideas with oswald spengler is him likening the various sects of judaism (let's include the jesus worshippers here), bastard childs of zarathustra like mitras et al., chaldeans etc. to magical nations.

seeing how "ethnicity" was tied to religion in the ancient world, you basically were a good example of integration if you sacrificed to the local gods, it makes quite some sense.

124:

actually, the fact recent converts are somewhat strange is not that new; don't get a fellow sf nerd who once lived in a rc seminary started on "konvertiten".

on another level, one could argue about the merits of pc talk, but afaik the term usually used when studying religions is "new religious movements". the unitarian universalist i met didn't look very cultish.to me...

125:

I ama little leery of your first point and unsure of 2 and 3

On #1 I've personally seen non Primate animals, Corvids in particular with something akin to a court and I don't think they have relgious ideation.

A crow was surrounded by a half circle of other crows who sqwaked at him. The crow who I assume was the defendent assumed a subsmissive aplogetic posture, the other crows responded and the "defendent" flew away.

Other people have reported crows executing crows for whatever offense merit the Corvid death penalty as well. I've never seen that though.

Snopes on the topic here (sorry I am not familar with the HTML tags)

http://msgboard.snopes.com/cgi-bin/ultimatebb.cgi?ubb=get_topic;f=74;t=000758;p=1

and here

http://www.wildaboutbritain.co.uk/forums/british-birds/77564-crows-courts.html


As for the last, as some very conservatove people once sneered in reply to my making point #4, well than incarceration is just ritaulized kidnapping

Well yes it is. It has to be. The ritaul serves the purpose of creating legitimacy. Without that "defusing" mechanism all law would degenerate to fueds.

To make human society much above a tribe work, you need to create legitimacy of some kind, custom, tradition or as our current leaders seem to be doing, trick people into it.

As long as the system is percieved to be working as intended to some degree even if people are being shafted, it can stand.

Justice is not immune to this necessity at all.

However I don't see it exactly as a religion in some cases so much as a faith in a system or social contracts , relgion after all kind of implies divine beings.

126:

@ 121
But, as I said way back ... DPRK is a classic example.
It's a totally theocratic state, ruled by hereditary God-Kings.
All competing religions are persecuted, which isn't a suprise, when you look at what all the others do (or have done) when in absolute power.

127:

I know enough about making espresso properly to say that the punishment should be to make you drink the result withotu milk or sugar!

128:

Single word description: "Unpleasant"

More specifically, a thin, bitter flavour with few redeeming features. After effects indicated a fair caffeine concentration. No plans to do it again.

@127: That's what I did, and it was indeed a suitable punishment.

129:

Very good point. I'm just a hobby scientist but in my understanding any form of inherited fairness/justness is a form of evolution teaching us applied game theory. And because even learning-enhanced evolution is slow to adapt it doesn't like to have all it's eggs in the same basket but prefers variety instead. So no surprise that there's a fair amount of different views on what is fair/just.

On the other hand, religion is an evolutionary method to explain something that we don't understand and to make things bearable that we can't change, helping us to cope with situations that we couldn't cope with otherwise. And it can help to provide group cohesion against outside threats, another thing that has proven hugely successful in human (and ape, wolf, ...) evolution.

Both fairness/justice and religion are passed on, maintained and evaluated by the same learning methods and thus it's inevitable that they intermingle to some degree. But I wouldn't equate them even though, for some people, they are the same.

The biggest stumbling block for me is when it comes to discriminatory rules. Obviously there's s***loads of them, they're not fair/just and we've got a pretty hard time getting rid of them. Is this a failure, unwanted side effect of evolution? Are the discriminatory practices just group cohesion enforcing facilites or learning facilities gone wrong? Or is there an evolutionary purpose behind it? (I seriously hope not but I wouldn't claim that evolution is nice.)

130:

I normally drink my coffee like this. Does that make me a flagellant?

131:

Nice point - brings in another dimension to compare/contrast ... learning (evolution) vs. dogma.
From this perspective, law is less dogmatic than religion: law recognizes that change happens and includes mechanisms for adapting to change, i.e., passing new legislation, tossing out out-dated legislation.

132:

Alternate hypothesis:

1. Communities are shared narratives.
2. Governments are attempts to fix the narratives and who gets to create them.
3. Laws are created by authors and administered by editors.

133:

A source I stumbled across after I made my post mentioned that there are no primary sources for the Sadducees, at best we have characterizations of their beliefs as given by their detractors. So it might well be like trying to reconstruct Judaism without Torah and Talmud, just a moldering copy of the Protocols of the Elders of Zion. Another point made is that the afterlife a Sadducee might believe in differed from what others considered the proper afterlife so by not believing in the "correct" version, they don't believe at all, the same way a fundamentalist Christian could think of a devout Muslim as "godless."

134:

Working in politics, without juridical training, I realized after some time that law is not only structurally speaking very similar to religion (something I found out in university, both theologians and law students seemingly learning to read voluminous books in the right way), but that indeed, law is code. Or something very similiar to code. It doesn't look like code, because the language isn't that formalized, but I'd guess looking from the right angle at law, it's not that different from a Turing machine. Or from other, more formalized programming languages. Including definitions, operators like "if" and "case selection", links to different paragraphs, and even here and there complex algorithms. D'Hondt implemented in law speak, for example.

Coming back full circle, this could mean that computer science also is a religion.

(Which brings to mind 1960s SF with big central computers interpreting the law, creating the one and only just society (or the one and only dictatorship-by-code))

135:

I'm with you about 1. and 2. but I'd probably refer to Gramsci if I want to explain who get's to do 2.

Laws usually aren't narratives (except maybe the preamble). Instead they are the antithesis to narratives by abstracting from the context and making the outcome predictable.

So if 1. is true and laws kill narratives, what does that tell us about the judicial system?

136:

They don't like stories?

137:

Everyone likes stories; that's the nature of homo narrans.

But if stories define a community and laws disrespect/disrupt/kill stories then you can't expect the judicial system to be the thing that binds communities together.

138:

but then, there is always the narrative of the gestation of the law in question. or what would happen if we would break them.

also, i don't see the inevitabiliy of an antagonism between narrative and abstraction.

and last but not least, this is not necessarily the case with case law, and even with abstract systems like the german bgb, there is a need for commentaries.

barring the question of narratives are really the only foundation of communities; i guess most exposing that view are literary people, economists would stress transfer of goods, behavioural biologists certain signals, bdsm-freaks power structures. makes a nice narrative, btw.

139:

Yellow card.

Please do not refer to people of alternative sexuality as "freaks". It's demeaning and rude.

(I'm going to make the assumption that it was a brain fart this time, rather than active prejudice.)

140:

I'm going to take a bit of issue with this. Yes, historically law and religion were closely intertwined, which should come as no surprise; in archaic societies there is little to no distinction between religious, legal, and moral obligations.

However, the question of why and when we should obey laws is very much a matter of debate, and the validity of law is by no means taken as an absolute, not even by us lawyers. The answer to that question essentially depends on your legal-philosophical viewpoint. Those who subscribe to the concept of natural law believe in ethical and normative axioms which no legitimate legal system may break. Extreme legal positivists take law as fact and don't really care about any ultimate source of legitimacy of law: The state can create and enforce laws, and the fact that laws exist as fact is enough for them.

However, a third major set of theories exists: Discursive theories of justice. To greatly simplify, adherents of those theories generally acknowledge (i) that we can't function as a society without a legal system to order conflicting interests, (ii) that Kant pretty much killed the idea of a universally valid natural law, and (iii) that extreme legal positivism and relativism end in unacceptable consequences and in an intellectual cul-de-sac. As a result, they try to tease substance out of form, specifying various conditions under which rational solutions taking into account arguments and interests of all affected parties are reached (such as Habermas' ideal discourse).

Of course, reality doesn't resemble these theories too closely. Or at all. But discursive theories do raise an important point: For laws to work, they have to be regarded as legitimate by a critical mass of the population. A dirty little secret which neither politicians nor administrators nor lawyers like to talk about us that it's impossible to enforce laws if people decide to break them the moment they think they can get away with it. The resources required for that would be impossible to acquire and maintain. And since the populace at large does not consider law as religion (as it is not a derivative of religion anymore, by and large), law has to take their interests into account to some extent. If it doesn't, it may well lose its legitimacy and eventually its force.

As for why capital punishment remains on the books, in practice laws reflect prejudices and ideologies of the lawmakers and the populace. There is no guarantee that a measure intended to achieve something is empirically able to do so (hello, European fiscal pact). After all, ideal discourses are hypothetical optimums, and a lot of the time, political and public "discourse" can barely be called that.

Moreover, capital punishment is in part based on an ethical viewpoint, that evil inflicted on a perpetrator can balanced out the evil that the perpetrator committed. That's an ethical, philosophical, and moral standpoint that's unprovable: You either subscribe to it or not.

141:

sorry for that. i was thinking about "freak" more in the sense of "very enthusiastic into it", not so much as "deviant behaviour i don't approve of". for a technical subculture as an example, see "phreaking". sorry for offending.

of course, i was not actually thinking about people into bdsm as sexual practice, which afaik is more abour playing with power structures than actual pain, but people concentrating on power structures, which can be somewhat stressing in real life, thonk every "hello" interpreted as an "i'm here, this is my territory, i'm boss, entertain me". i thought it somewhat apt to use bdsm as a proxy for that, just as marxists use "fetishism" for something else:

http://en.wikipedia.org/wiki/Commodity_fetishism

sorry for that.

as for personal prejudices, this is somewhat treading on thin ice, and i hope this doesn't get me an upgrade to a red card, but...

if we could institute some corporal punishment for this, administered by some dark or red-haired girl in high leather boots, i'd appreciate that. err, yes, i know it's more about the mental state than physical pain.

*ducksforcover*

142:

Bit late but there is a lecture at Gresham college (holbourn london) on this very topic tonight

http://www.gresham.ac.uk/lectures-and-events/law-as-a-new-religion-and-other-topics

143:

Err, having browsed around

http://en.wikipedia.org/wiki/Freak

and like, I can easily see what OGH objected to and can assure him it was most definitely not meant in that way. That is not to say I don't have my prejudices. But then, "homo sum, humani nihil a me alienum puto".

Personally, I thought it somewhat on the same level as "geek", e.g. sometimes used pejorative, but usually describing just some variance from the norm, but keeping to certain limits. If I wanted to offend, I'd have used words like "weirdo" or "creep". Actually, it seems like "kink" is used for a slight deviation,

http://en.wikipedia.org/wiki/Kink_(sexual)

though I thought it somewhat offensive; for me, "kinky" somehow implies something with raincoats

http://en.wiktionary.org/wiki/raincoater

or raw eggs in beer or...

Err, long story short, sorry for me being offesive, back to text.

144:

That's okay; just chalk it up to the evolution of word usage.

145:

There's case law and statutory law. I think we agree that statutory laws aren't narratives. Do we agree that case law consists of narratives?

Then there's the distinction between religion (which has holy books) and witchcraft (which does not). See Boyer's "Religion Explained".

The statutory law/case law distinction seems vaguely analogous to the religion/witchcraft distinction, but it's undermined by the fact that most of text I've seen in holy books consists of narratives, not statements like "Thou shalt do this and that".

I'm confused now.

146:

Titus @ 140
You are also discussing the very important difference between "English Common Law" ( Often taken to = "Natural Justice" ) and prescriptive systems, especially the closeley-aligned pair of "Roman Law" & "Code Napoleon" - & its & their children.
A lot of people are very suspicious, here of "Code Napoleon" syatems - it's one of the underlying causes of distrust of the EU & the European Court { Not the EHCR - which is different again - but often confused with the former }

Also mjwalshe77 ...
Be careful, very careful with anything at Gresham College. They are very good, I've been to quite a few of their lectures over the years ... but.
They have a very, very strong religious (protestant christian) "ethos" & often can't be trusted when supposedly "ethical" issues arise. They somehow, always seem to end up telling you that the christian "solution" is the best one. They're very good at it.

147:

I agree that case law relies more on narratives (in Germany where I live case law is only of minor importance).

Narratives are the oldest and most effective technique of our collective memory.
Compare how easy it is to memorize a fairy tale compared to a shopping list. So it's natural that many cultural institutions rely on narratives. When people try to codify narratives, either as law or religion or something else, human intellect fights back and adds narratives back to it (eg. commentary to statuary law).

I don't agree about your distinction between religions and witchcraft: holy books are not necessary for religions. Also the three monotheistic "book" religions are different in that their holy book *is* interpreted as law.
I see witchcraft as an aspect of religions, not as a belief system of its own. Cf. Wicca vs. Voodoo vs. Exorcism in the catholic church - similar superstitions but totally different belief systems.

148:

Very interesting sub-thread. I think it's another case of completely different use of words. Quite recently (possibly on this very page) Charlie told us that in Scotland the c-word (or the f-word, for that matter) are by far not as offensive as in the US. It's basically the same with this case.

As a fellow German I can confirm that in my view "freak" is indeed basically synonymous to "geek". In combination with a preceding noun I'd define it as "someone into ". "Ökofreak" or "Motorradfreak" would come to mind immediately as perfectly normal German words. While these terms would mainly be used while making fun of the person in question (so they are mildly derogatory), the main reason for this is that in the speaker's view the person such described is a little overdoing it, to the point of being only defined by being into their thing and having very little life beside it.

So, on an offensiveness-scale from 0 to 10, I'd rate the typical usage of the term by a German speaker at about 1, raisable by extremely pointed exclamation all the way up to 3.

And (apparently just like Trottelreiner) I wasn't aware at all that this would be different for British people (well, for Charlie at least). It would be interesting to learn whether it's the same for English speakers from other parts of the world.

149:

Interesting parallell, but remember that it not only says things about the cult of justice, but also of the legal framework of religions.

Several years ago I had an epiphany about the religious rite of confession, that the very act of telling someone else served as practical psychology. If one read a lot of early religious laws, they similarly serve practical purposes: rules that helps you avoid getting sick from food in the desert, rules on how to behave to friendly groups and not-so-friendly groups, and so on.

In the same way, I think you can claim a lot of modern bureaucracies (which are indespensible for a functioning large-scale bureaucracy) goes back to the churches - one can probably make a case that the Catholic church was the first fully modern bureaucracy. And the scientific method has similiarities to the early Christian councils (but now I'm arguing more for the heck of it).

But a lot of these mechanisms and structures are about keeping a functioning society, and what matters then (for human beings) is more the confidence in justice, fairness, and a hard-boiled egg; not the actual presence of such. Thus, religion can be viewed as an emergent trait of the human need to make sense of the world in general, not simply of natural phenomena.

150:

Oh, and another thing that can provide food for thought: the currently ongoing merry-go-round around Sture Bergwall (formerly Thomas Quick) here in Sweden.

The latest development is from a book published this autumn which partially is a biography over the psychologist Margit Norell, who served as therapist and mentor for a lot of the people involved in the therapy, prosecution, and investigation of Bergwall's "confessions". A lot of the dynamics within that group is described as being similar to a sect, and the term is used explicitly as well.

151:

BTW, in the field of hedonism, there is also the term "fiend", like in "drug fiend" or "sex fiend", optionally alien. No idea how this is thought about.

Problem is, and I was aware of this, there is the term "freak show", which would be somewhat akin to "Kuriositätenkabinett" in German. So you could translate it with "Fehlbildung", "Mißbildung" or "Mißgeburt". But then, there is a whole spectrum of congenital variants, and German pediatricians would use the term "Normvariante" for light congenital variations; incidentally, that would also be the term applied to some syndromes like AD(H)D and autism. There is also a joke of "anatomische Normvariante" being doctor slang for a person with an attractive body, BTW, so it's not that derogatory. Which could get us into a long discussion about definitions of "health", both captal and lower h.

As for BDSM, having just gotten my confirm for 30c3 payment, if they put up a dting service like last year,

http://events.ccc.de/congress/2012/wiki/Dating

I'm going to put up a sign about searching a Herrin to apply ample punishment for my transgression. Though maybe not being perceived would be better punishment?

I digress...

152:

Speaker of NZ English here: I concur. In casual language I would append the word 'freak' to something to refer to a person who was extremely enthusiastic about it, perhaps to the point of mild obsession. It can - but does not necessarily - have mildly derogatory connotations indicating excessive interest in the subject. I'm aware of other meanings of the term, but they would be used very rarely in everyday casual language.
The overall offensiveness of the term is very low. Insofar as it has any, this is mostly related to what one is a freak about or the degree of obsession.

In fact, the most common use of the term I encounter is in the context of "freaking out", which means becoming very anxious, panic-stricken, or otherwise highly concerned about something. Sometimes this is described as "being freaked" i.e. scared or alarmed.

Just my $0.02. YMMV, etc.

153:

I am having to log in with a different Browser. Opera 18 is throwing up errors over cookies when I try to use my Google ID here. The messages seem to come from Google, but the login to Google works OK. There have been several UI changes in how stored passwords and stuff are dealt with by Opera.

Opera also has shifted to a completely different way of handling bookmarks, which may be better suited to touchscreen computing. I was slowly getting used to it, and then this started happening.

154:

Charlie, you argue that the derivation of justice from fairness is of the same type as the derivation of religiousness from theory of mind. So far so good, and premise granted.

But then you make the leap that this means justice and religion are an identity. But how is that a valid inference? How does the fact that they derive from the same kind of cognitive error make them one and the same, in spite of the fact that the original concepts they derive from are not one and the same?

(I actually think your idea has merit. But I feel that by stating an invalidly strong claim, you are misspending its controversy potential.)

155:

I don't remember where I saw the study, but dogs have also been shown to have a sense of fairness. (The test was something along the lines that if Dog A did a behavior and was rewarded, and Dog B did the same behavior and wasn't rewarded, then Dog B would stop doing the behavior faster if it saw Dog A being rewarded than if it didn't see that.

(I love the experimental design on this stuff.)

156:

A state, in order to exercise (its model of) justice, needs to be viewed as legitimate. But its constituents don’t need to have faith, on the scale of religious faith, in order to believe in its legitimacy. It would be enough for those constituents to have a rationally supported belief that even though the President-for-Life is a right bastard, if he were deposed, there would be an inter-ethnic civil war and everyone would be even worse off.

157:

Well, as for Christian confessions as a way of lay-psychotherapy, that's a somewhat interesting story. First of, yes people often feel compelled to confess their sins, if that one really helps or is akin to the OCD-Catch 22, e.g. you feel compelled to look after something or do some ritual, if you do so, you have to look you did everything right, so you check again etc. ad nauseam, no idea.

Second of, well, it seems like early confession was a public affair. And if you look at similar rituals in somewhat extant groups, it gets really interesting:

http://en.wikipedia.org/wiki/Self-criticism#In_Communist_movements

There are somewhat similar procedures in the always funny intersection of psychotherapy and NRM, where anecdotal evidence says the results can be REALLY messy.

So in a way, private confessions are a way to avoid certain excesses of mob mentality.

Of course, this leads to the criticism the RC church wants to know your secrets, to blackmail you. Which, with some Protestant groups, lead to reinstituting public confessions. Well, we all know revolutions always go 360 degrees...

(Sorry for digging that one up, recent events in the DPRK had me looking into Stalinist rituals again, where I was reminded of this posting)

158:

>I don't agree about your distinction between religions
>and witchcraft: holy books are not necessary for
>religions.

That's a matter of definition. I'm using the definitions from "Religion Explained" because it's the best model I've come across explaining why people believe these things, and it provides some hints about which weird things are believable. For example, experiments apparently show that the optimal number of bizarre properties of an object to make it stick in people's minds is one. So you have statues that bleed, and gods that talk to you when they aren't there, but a statue that both bleeds and talks to you when it isn't there is less likely.

But let's take your definitions. Can you point to a religion, however you want to define it, that has no holy book?

It can't be any sect of Christianity, Islam, Buddhism, Hinduism, Judaism, Scientology, Taoism, Satanism, or Cthulhu-worshipping, since they all have books.

I don't know enough about Jainism, Sikhism, or Zorostrianism to know if they have books.

There are cargo cults, but perhaps if the choice is to call that a religion or witchcraft it's easy to call it witchcraft.

What's your counterexample?

159:
But let's take your definitions. Can you point to a religion, however you want to define it, that has no holy book?

This depends somewhat on how you define "book". Let's take the various Indian religions, the first Indian script we know of was the Brahmi script, which dates to the third century BC:

http://en.wikipedia.org/wiki/Brahmi_script

We might assume the first examples were somewhat older, but still, there are even some Greek ambassadors who stressed the Indians using no writing system.

If we assume a "book" has to be written, this means people in India had no religion before adopting the Brahmi script and relied on "witchcraft"; this would incidentally include one Siddharta Gautama, nickname "Buddha", who lived in the fifth century BC.

Of course, we know India had vibrant, err, "religious" traditions already then, including not just rituals, e.g. what could be called "witchcraft"

http://en.wikipedia.org/wiki/Yajurveda

but also mythology, ethics and like, but it was transmitted orally, supplied with certain mnemonic techniques. And we can see some of those texts are quite old:

http://en.wikipedia.org/wiki/Rig_Veda#Dating_and_historical_context

There is a similar situation with the Celts in Europe, where we know next to nothing about the content, just that becoming a "priest", e.g. druid took a long time and was much memory work.

So we might include some oral traditions in our "book" definition, problem is, where do you draw the line? And what if some culture crosses said line, e.g. when somewhat unorganized Germanic beliefs crystalized into the Edda, possible only after said Germanics encountered Christianity?

It can't be any sect of Christianity, Islam, Buddhism, Hinduism, Judaism, Scientology, Taoism, Satanism, or Cthulhu-worshipping, since they all have books.

Jesus wrote no book, though according to gospels he could write; the first gospels date from the late frist century AD; Paulus is somewhat earlier, though I guess he was a somewhat controversial figure in early, err, "Christianity". Though one might argue Jesus' followers before that had a holy book, since they were still one of many Jewish sects.

There is some debate on the literacy of Mohammed:

http://askanislamicist.wordpress.com/2011/04/24/could-muhammad-read/

Early Buddhist, as already said, most likely had no holy book, they had the teachings of the Buddha, though if we went by this, what about oral techings of some witchdoctor?

http://en.wikipedia.org/wiki/Witch_doctor

Hinduism is a somewhat interesting case, I was always somewhat interested if we could use those guys as a model for early Vedics,

http://en.wikipedia.org/wiki/Kalash_people#Mythology

but from what I could gather it's more of a "Indra makes rain by playing polo" than an elaborate religious literature. Which would mean the Kalash and "rustic" practitioners of Hinduism would be stuck in "witchcraft", while Hinduism as a religion would be confined to certain strata.

As for Satanism, which one are we talking about? LeVayan? Likelly. Theistic Satanism? Depends on the strain. Most self-identified Satanists? More liekly a collection of rituals, e.g. "witchcraft", with some eclectic mingling of LeVay and maybe the usual Right Libertarians. BTW, I guess the discography of Emperor doesn't qualify as an (un)holy book.

I leave the rest as an execise to the reader.

I don't know enough about Jainism, Sikhism, or Zorostrianism to know if they have books.

Jainism is in a similar situation to Buddhism, though the actual authorship is somewhat up to debate, Jainism aknowledges several somewhat legendary predecessors of its founder, but there is some discussion about at least one of them being historical.

Sikhism developed with the contact of Hinduism and Islam, and, yes, it has a "holy book".

Zoroastrianism seems to share some of its background with Hinduism, e.g. Indo-Aryan beliefs of the second millenium BC. After that, it gets somewhat, err, complicated, starting with the person of Zoroaster himself:

http://en.wikipedia.org/wiki/Zoroaster

Actually, to me the distinction between "religion" and "witchcraft" by "holy book" is just a glorified version of the Islamic distinction of Ahl al-Kitāb

http://en.wikipedia.org/wiki/People_of_the_Book

Though one might argue for Mohammed it was not so much about scripture (as already noted, there is some tradition he was illiterate, and if we see the Quran as a poetic "oral collection", there were poetic "oral collections" in Arabia before Mohammed) but about revelations respected by Muslims. "Witchcraft" is a term for the various folk beliefs that are around, which are likely somewhat unorganized. From time to time, some guy is able to crystalize some synthesis from these beliefs, be itz Mohammed, be it Homer or Hesiod. You might call these guys founders of a religion, reformers, collectors or just plain believers. If you're an ethnographer in the bush, well, it depends somewhat on the guy you ask about their beliefs, get an individual with some eloquence and a talent for story-telling, maybe a case of Williams-Beuren, the whole culture has a religion. Get a hurried healer on a way to an emergency,m with too little sleep, maybe a slight case of autism, bang, the whole culture is stuck with the epithet "witchcraft".

This is not to say belief systems might not undergo a qualitative change when they develop a "holy book", as OGH hinted at when comparing written law to religion, but then, if biology is the science with no law without an exeption, we wouldn't even dare to speak of anything related to "cultures" or "societies". For an example of similar ideas, see

http://www.safarmer.com/neuro-correlative.pdf

though I still haven't made up my mind if this is a genuine topic of research or just some interesting ideas garnered with some cybernetic technobabble. Reminds me too much of a story by Lem in some places... ;)

160:

But let's take your definitions. Can you point to a religion, however you want to define it, that has no holy book?

Sure. Shinto.

I'd argue that much of modern paganism lacks a holy book too. Note that your argument that, if it's written down, it's therefore a holy book, is amusingly quaint. By that definition, there is no bookless religion, because we're writing about them on the internet, and Our Words Have Power. There's a non-subtle difference between having a book or two that are widely read but not regarded as scripture (as in paganism), and something like the Koran, the Holy Bible, The Guru Granth Sahib, or the various Buddhist Sutras.

162:

Err, sorry to ask, but could you quote the definition from Boyer's "Religion Explained", preferentially with some context?

Having somewhat skimmed through it with Google Books, I have a feeling that you might have misunderstood him somewhat; IMHO Boyer denotes as witchcraft a belief that some individuals are very powerful at influencing our situation and sees this as one example of our "agency detection module" running wild. Which might contain a hefty dose of what psycho jargon calls "magical thinking", though I somewhat think conspiracy theories are likely a secular variant. Though as we all know, some conspiracies are real. See Snowden et al.

I don't know how witchcraft figures into religion for Boyer, maybe he thinks it's one of the phenomena that give rise to it, personally I think ritualistic thinking is another contender, but then, I have no idea about the number of persecutory delusions in the environment of said ethnographers, and I have quite some slight cases of OCD in mine, so this might be somewhat coloured by personal experiences.

Another possibility is him channeling Feuerbach somewhat, e.g. "witchcraft" is a personalized phenomena centered on humans, abstract the mana from the witch and sublimate it somewhat, and you're left with a pantheon of invisible sky daddys and mummies. No idea, I haven't read him and don't have the book.

Personally, I'm not that sure about "magical thinking" being qualitively that much different from "rational thinking". Talk to me about hidden causations, and I'm quite likely to agree on those, though I'd call them gossip behind your back, bacteria and other pathogens, mirror neurons acting as emotional contagion etc. I think these are "scientific" explanations, but then, I guess some people into parapsychology also think their explanations "scientific", and a shaman likely thinks himself rational, too. We might argue about "experimental evidence", but then, AFAIR we're still not that sure if there are even mirror neurons in HSS, not speaking aboit the phenomena they are involved in. I could say there are phenomena that are explainable by them, but then, witchcraft explains some things, too. And we might argue science is always falsifiable, problem is, falsified beliefs have this odd tendency to stick around long after their date. Any serious nerd can testify to the unending fight against urban myths and like.

BTW recently my "scientific" ideas about "hidden causations" grew somewhat bizarre after too little sleep, though one might argue about the actual degree; fetching my brother's new car, we were first of sent to the waiting room, later on called by name by some poor clerk soul. Cue speculations about some pschologists and ethologists working out the exact color of the furniture and the waiting time needed to make you somewhat nervous and elevating the company and the product by denigrating you to some degree, but not so long to make you angry of them. Cue the realisation said statistics will have to cope with human variability, and will likely be tailored to the majority. Cue the mental picture of a devastated waiting room with the caption "Restrisiko" or "residual risk". Needless to say, I really try to get enough sleep usually...

163:

btw, on the text by farmer et al. i linked too, imho their main idea is the heightened long term communication, use of written texts or mnemonics and establishment of local specialists called priest etc. lead to a qualitative change in the nature of the belief systems involved. which likely was not a abrupt change, but an accelerating, self-reinforcing process. i guess you can guess what i'm pondering, it's the dreaded s-word.

so, if today's religions and law systems, let's not forget literature, are the result of singularity 1.0 transforming tribal belief systems and half explicit, half implicit ethical systems, there is the old idea what singularity 2.0 does to them. witzel, one of the authors, is an indologist, and afair he once wondered about reconstructing some kind of cvs of the vedas. this is a somewhat banal idea, but maybe one could work with it.

164:

Hi Charles, late to the party here, but -- I'm a sociologist and your post is basically Emile Durkheim's 1912 theory of religion in a nutshell.

Cheers!

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