Dennis Claxton wrote:
> [CLIP]
> I bring this up here because the overwhelming majority of the Nahuatl
> texts that historians have found concern legal cases. Nahua suing
> Nahua.. The point being, the adversarial legal system is not
> something "Western" that's been mechanically imposed
> everywhere. It's something that seems to make sense across
> cultures. At least we have a lot of evidence that's the case.
>
> That's a long way of answering your question about can we conceive of
> how to address disruptive or damaging behavior without preformed
> institutions. I don't know. But as Chuck said, we haven't yet.
>
The earliest 'study' of this with which I'm acquainted is Aeschylus, Oresteia, which can be regarded as sort of an alternative ending to the Odyssey. So let's start with the Odyssey. Odysseus leaves home with nearly a whole generation of Ithavans. Twenty years later he comes home leaving that generatio dead behind him but bringing with him a huge fortune in gifts. And what is the first thing he does when he arrives home: He slaughers off a goodly portion of the generation that has grown up in his absence. (And incidentally, Ithaca got along perfeclty well without a king for tose 20 years.) When the remaining mebers of that generation object, he is about to slaugher them to, but Athena interventes.
NOW NOTE: We only have about 2 or 3 lines of the poem left to handle this impossible contradiction. There is no way on earth to resolve this "justly." How does one handle it in two lines. Easy: "Athena made peace between the contending parties."
And oh yes: along the way he hangs 50 maidservants mostly for the fun of it, though there's a sort of tacked on reason for their "getting what they deserve." But think about it: his oikos presdumably needed all those servants, and presumably there are replacemnets available. This makes sense if (and I think only if) you remember that in that world there were no laundries arund the corner, there were no flour mills, there was no refrigeration, no va uum cleaners, no textile mills, AND NO MOENY. So what was the use of bing rich if there was nothing available to buy with the money one didn't have anyway. Well, one needed an immense supply of free domestic labor. And hence varieties of slavery, serfdom, 'traditions' of getting gifts from peasants, required labor sevices from peasants, etc. Hesiod produced his poem, Works and Days, at about the same time, and that poem contains a number of crucial passages. The one immediately relevant is "gift-devouring lords" (I forget the Greek word for which I use "lords" here, but it refers to the extraction of goods and services from the farmers/peasants by a powerful nobility.
Now, when we jump a couple of centries ahead to Aeschylus, we land in the midst of democratic Athens (rule by the _demos_, the people, i.e. peasants and artisans). And Fifth-century Athens has driven ruling-class idealogues batty for two and half millenia, caused "the rich man to tear his hair adn cry" (GKuthrie). And what that democracy had as its core was the self-rule of the _deme_ (the peasant village preeminently) and the abolition of compulsory service to the "lord." The aristocacy of Athens was able to go along, however reluctantly (see Plato) because slavery replacved that household labor formerly requsitioned from the peasantry. (Slavery was probably not much used in production, agricultural or 'industrial.' And one of the features of that democracy was the proliferation of lawsuits by individuals against other individuals, the 'cases'resembling more political debates in a legislature than a modern court. Moreover, there was great suspicion of written 'evidence,' oral evidence even in the case of contracts being regarded as more trustworthy than any written document. (Which, of course, made "perjury" a crime which threatened the very foundations of civilization. Also, "Thou shalt not kill" was a civil not a criminal matter. That is, murder was a tort, and subject to'civil' suit by the victim's relatives to collect proper damages. And a group of deities, supposedly living under the hill of the acropolis, called the eumenides, were aprticularly charged with the punishment of perjury.
Aeschylus, a moderate democrat, starts where the Odyssey ends, a Homecoming from Troy, with a rather different welcoming by the hero's wife: she kills him. That creates a horrible tension within the family: how avenge a death when the murderer is within the family. Apollo orders the son to go ahead and kill his mother, which he does, with his siteer's approval, in the second play, and he is immediately pursued by the Furies, deities who punish matricide. Orestes flees to Athens to appeal to it citizens to absolve him of hte crime, and we have arrived at the end of the Odyssey: an insoluable contradiction within the old order. And again Athena is called on to make peace between the contending parties (who this time are divine: Apollo and The Furies. Apollo argues that Orestes did not shed kinsblood because the mother only incubates the seed sown by the father. The Furies argue that Orestes is blookdin only of his mother, not of his father, and therefore owed nothing to his father. Athena convenes the first court in human history (we are a bit euro-centric here) but anounces that if the jury is tied she will cast the deciding ballot for Orestes (but not on any principle of 'justice,' beccause justice does not exist yet and cannot be appealed to); she merely notes that she has a father but no mother and therefore will take the male side. The 'jury' is tied, she absolves Orests, and The Furies threaten undending t error to Athens for the great crime against them the oldest of deities. Now, the word Perusasion has echoed through this third play, and Athena launches into an attempt to Perusaude, not force, the Furies to accept the verdict, and the prize she offers them is a palce of honor in the new society as great as the place they occoupied in the old ('matrilinear'?) society: they will punish perjury and Athenians will provide them with a place of residence. Justice has been created in a social order split between contending powers of equal legitimacy. Public persuasion, not private vengeance, will hencforth handle contradictions among the people. Hence the Athenian love of lawsuites as will as contempt for "private persons" (idiotes) has been 'explained.'
Leaving Greece behind, we can explain "Justice" as grounded in the wsocvial conflict which arises from social parties _both_ having conflicting interests_ AND being mutually dependend on each other. The fundamental clash of interests cannot be resolved by violwnce (as in the Odyssey) because of the mutual depenndence. Hence the necessary but profoundly unsatisfactory institution of Justice as a reconciliation of irreconciliable contadictions.
So Dennis and Eric are both correct. Justice has long been recognized as a vital core of ordered society all over the wrold, as Dennis suggests. It's not merely a capitalist ploy. But it is also prodoundly rooted in social conflict and repressvie, as Eric argues, and as Rosa Luxdmburg recognizied, those conflicts must be resolved (by force, not balancing both 'sides' but destroying one side) or else these conflict will result in endless barbarism or the mutual destruction of the contending classes.
BUT, of course, and I take it this is Dennis's point of departure, socialism (the realm of freedom) lies in the future (if at all), and we must live with these various conflicts. Hence we struggle with the need to 'preserve' but endlessly tinker with this historical necessity: Justice and machinery of justice.
There is obviously a lot more to say on almost every point raised here, but I've run out.
Carrol