1867 CE

False Binaries

Many of the false binaries that still exist in the Canadian legal system were imported at Confederation, while still others have been accumulated since.

1956 CE

Defining Culture

I dislike using the word culture without defining it, because its overuse has turned it into a bucket of thought terminating clichés into which society as a whole (but academics in particular) vomit deeply held prejudices about the "other".

From a sociological perspective, culture is simply the agreed terms by which individuals engage with each other. George Simmel's framework is useful for understanding how cultures develop, and why cultures develop differently based on their context.[1]

Simmel's three-stage formulation of the development of culture can be further subdivided to include two transition stages, as follows:

  1. Proto-Culture (Simmel/Coser).
    At this stage of development, there is no society. This is the stage at which all parties are strangers and encountering each other for the first time. They create between them some means of meaningful exchange: a way to greet each other, a way to signal peaceable intentions, a desire to trade, etc. none of which are binding on the parties.

    Norms have not yet developed, and there is not yet any culture with which to comply.
     
  2. Non-Binding Norms (transition stage).
    This is that state at which parties have met before but do not know each other well. Some shared meaning can be carried over from the initial encounter, but much is yet unsettled about how to proceed, and there remains room for misunderstanding.

    While norms are being established, there is not yet any enforceable culture. Compliance is still voluntary.
     
  3. Objective Culture (Simmel/Coser).
    This is the stage at which the parties are established trading partners, in society with each other. The minutiae of social relationships are settled (such as greeting each other with a handshake, discussions over a shared meal, understanding about who will pick up the tab, etc.). The larger terms of a trade are still open to negotiation, but the niceties are established.

    There is a loose culture with which compliance with social norms is expected, but not yet centrally enforced. Lack of compliance will be met with social ostracism by other members, but not punished per se.
     
  4. Laws (transition stage).
    At this stage the rules are not only established but written down as laws. A newcomer can learn the local culture by reading the laws, and thus can know in advance how not to contravene them.

    Laws that do not have the desired effect are still subject to amendment or repeal. Though already negotiated, culture is subject to renegotiation as necessary to allow for the better functioning of the society.

    Documentation of laws allows for external enforcement of culture. Bureaucracies can be built around enforcing compliance, eliminating the need for direct enforcement by the members.

    The role of unrelated third-parties (strangers to the contract) in enforcement of culture/laws, creates the (false) perception of objectivity and an expectation of fairness.
     
  5. Religion  (Simmel/Coser).
    At this stage, society has recognized the limitation of an enforcement bureaucracy that is neither omniscient nor omnipotent. Infractions that are not seen cannot be punished. Even enforcement of laws requires an omniscient/omnipotent observer, and thus one is created.

    An unintended by incidental consequence of creating an omniscient/omnipotent observer to enforce laws (or cultural compliance) is that law/culture become ossified, and unmoored from their intended purpose. Thus, a rational trade policy not to import fabrics from a competitor might become an irrational prohibition against the weaving together of wool and linen.

 
~~~~~
[1] Simmel's work is most commonly found in the writing of his students, as he failed to publish much of his work. See: Lewis A Coser, The Functions of Social Conflict (Glencoe, Ill.: Free Press, 1956). 

[2] Deuteronomy 22:11: “Do not wear clothes of wool and linen woven together.”

1980 CE

Individual / Collective

There is actually no such thing as an individualist culture.


~~~~~
[1] Hofstede, Geert, “National Cultures in Four Dimensions: A Research-Based Theory of Cultural Differences among Nations” 13 International Studies of Management & Organization 46, online: <https://www.jstor.org/stable/40396953>.

1993 CE

Law / Honour

I first encountered the writing of Richard E. Nisbett[1], because an article he wrote[2] was assigned reading in a sociology class. Nisbett is a psychologist (not a sociologist) by training, but his article touched upon the (then) nascent field of social psychology, which is the study of individual behaviour in the context of a social group.

Nisbett's premise is that there are qualitative differences (not contextual ones) between:

Cultures of Law in which members individually are law-abiding and look to authorities to remedy any transgressions of the law; and

Cultures of Honour in which members are more likely to resort to vigilantism and violence as self-help remedies for transgressions against them (and by implication as remedies for unproven perceived transgressions).

I found the assigned chapter impressive only to the extent that it demonstrated how completely the word culture[3] has become a bucket of thought terminating clichés into which society as a whole (but academics in particular) vomit deeply held prejudices about the "other".

Nisbett posits that children growing up in the agrarian Scottish highlands were taught to be ferocious shepherds in defense of their flocks and these cultural differences were carried with them when they settled in the Southern US.

What was carried to the new land was the Nisbett's WASPy willingness to dismiss others as scoff laws with the seemingly academic label Cultures of Honour.

If jumping to conclusion was an Olympic sport...


~~~~~
[1] I have no idea whether the assigned article exemplifies the caliber of Nisbett's other work. I expressly limit my comments to the article that I have read (though I understand that it may be the basis for his 1996 book on a similar theme).

[2] Nisbett, Richard E, “Violence and US Regional Culture” 48:4 American Psychologist 441–449.

[3] The WEIRD Bias in psychology would not be discovered until 2010. In 1993, Nisbett likely believed himself to be objective about his subject.

2010

WEIRD bias

Let’s assume for a moment that a society has reached the Laws stage (4) in its cultural development:

  1. Laws are written and publicly available to anyone who wants to read them.
  2. Laws apply to everyone equally.
  3. Laws are enforced by a third party (tax collectors, police, courts, etc.).

What happens when the bureaucratic enforcement mechanisms fail, or are simply not available when they are needed?

If the society is still a functional one, it creates a new rule, or it creates an exception to an existing rule. For example, legal recognition of PTSD from having been habitually abused by a perpetrator, and the ability to predict the next beating based on cues indicating escalating risk, lead to the creation of an exception to the laws against assault (Battered Woman Syndrome). When the bureaucratic body charged with enforcement of laws is not available to help abused women, the courts recognized that it was reasonable for them to help themselves.

But what about the sheep?

In the context of Nisbett’s stolen sheep, the shepherd can go all the way down the mountain to get the police, but by the time he returns, the sheep will have been slaughtered and eaten, or the thief will have absconded. The exigency of the moment demands a more immediate solution. The job of the shepherd is (after all) to protect the flock not to watch it be stolen and report the theft to the authorities. Self-help is right there in the job description.

How does this apply to segments of society who are actively denied the benefit of rule of law?

The answer is that not all parts of a civilization will necessarily be at the same stage of cultural development at the same time.

Remember the Proto-Culture stage (1) in which parties are still getting to know each other? There used to be a time when storefronts with “help wanted” and apartment blocks with “vacancy” signs could also be found displaying signs that read “no Irishman need apply”. If the Irishman arrives at a Laws culture and finds that the laws do not benefit him in any way, what reason does he have to join the local culture? He has no reason to join the local culture, and every reason to set up his own. These grey-market economies exist in parallel to main culture until their presence is normalized and absorbed. That is how one generation’s rum-runner becomes the next generation’s presidential hopeful.

What if they are never absorbed?

Some segments of society continue to be excluded from the benefit of being part of a Stage 4 Laws culture.
~~~~~
[1] Lessig, Lawrence, “Code is Law” 2000:1 Harvard Magazine, online: <http://harvardmagazine.com/2000/01/code-is-law-html>.

25 FEB 05

Scandal at the CBA AGM

Let's suppose that a society is at stage four (Laws) of its cultural development

~~~~~
[1] Lessig, Lawrence, “Code is Law” 2000:1 Harvard Magazine, online: <http://harvardmagazine.com/2000/01/code-is-law-html>.

Last Updated: 25FEB06

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