Papers
Afficio Undergraduate Journal
Creating the Cosmological: A Critique of Groarke
Winner, Lower Level Humanities
Author: Merren Russell
Merren Russell
Dr. John MacKinnon
Philosophy of Law 2333.2
April 11, 2020
CREATING THE COSMOLOGICAL: A CRITIQUE OF GROARKE
Paul Groarke describes the aspects of tribal law in an effort to demonstrate a spiritual connection between the moral and legal inherent therein. His concepts of cosmological forces, social control and cohesion are each contrasted with positivist legal systems to demonstrate a natural connection between the legal and moral. In this paper, I evaluate each of these concepts, beginning with Groarke’s depiction of positivist law, followed by evaluations of each of the aforementioned concepts. In the critical discussion that follows, I argue that the inaccuracies in Groarke’s depiction of tribal society undermine his argument that there is a direct connection between law and morality in tribal law.
Groarke’s chapter features several readings that he uses to navigate his explanation of the origin of law. His first reading, written by Frederick Pollock, introduces the concept of law and concludes that treating law simply as a series of commands issued by the state is clearly “the mistake of the layman” (Groarke, p. 7). I am inclined to agree with this sentiment. However, Groarke eventually uses this as a premise on which to base the conclusion that “Law is enforced by the state because it is law…,” (Groarke, p. 7). He takes it too far, concluding that there must be Natural Law. This erroneous conclusion ignores the concept of law as a system of rights and, by being incomplete, fails to cement the relationship between law and morality that Groarke later tries to support. That law is more complicated than a series of commands does not automatically imply that there is law other than what the state enforces, or what human lawmakers posit as law.
Groarke asserts that law has existed from “time immemorial” (Groarke, p. 14) and that laws regulating behaviour existed before states had any means of controlling them. These were the abstract laws that supposedly guided the early peoples. Groarke claims that laws created by humans were “foreign to early peoples,” (Groarke, p. 14); a claim which is unsupported in his paper. This assumption is far too grand and unrealistic, especially from the perspective of those who created the first primitive religions and laws. Groarke seems oblivious to the human capacity for deception, delusion, and creativity; and does not acknowledge that on many occasions ancient shamans could well have been motivated to invent supernatural elements in order to coerce their followers into obeisance. The tribal laws produced using these supernatural elements are the results of human creation, and this seriously weakens his claim that tribal law is inherently connected with morality. A natural morality, providing laws above human creation, cannot be defined as such if it is created by humans. The fact that tribal law is created by people reveals the flaw in his reasoning. I will concede that a form of abstract law can be found in tribal law, based on Groarke’s account. For example, the justice of revenge involved in tribal feuds he mentions demonstrates a rudimentary application of morality.
Groarke is naïve in his depiction of tribal law. He claims it is based on a “natural order” because of its cosmological components. He fails to include the concept of human nature in his analysis of tribal law. His constant assumption that tribal law is guided by actual cosmological forces reduces his credibility because he fails to acknowledge the human “interpreters” of said forces. This undermines his argument that there is a direct connection between the moral and legal in Tribal law. If Groarke does not concede to believe in the same magical forces believed in by the tribal members that he describes, he needs to acknowledge that the tribal elders who do “not see themselves as agents of social control” (Groarke, p. 8) are simply those who are positing the law. It absolutely is posited because it is law created by people.
Groarke compares Western law with tribal law, stating that the former is secular, while the latter is religious. What follows is his strange conclusion that “there is no need for an external mechanism to enforce tribal law” (Groarke, p.15). Apparently, these religious beliefs are internalized in the individual, thus making the law unbreakable. Groarke seems to be assuming that people always strictly follow their own beliefs and that humans never contradict themselves. The religious aspects of tribal law themselves constitute a form of external mechanism that enforces tribal law. While he recognizes that religion is internalized in the individual, he fails to acknowledge that these religious values (and associated laws or customs) were instilled in those people by those in positions of authority. This makes them external because dogma is neither an internal nor a natural process. Furthermore, it is inaccurate to define Western Law as purely secular. From noise-reduction laws on Sundays, to “In God We Trust” brandished on legal tender in the United States, one can find innumerable instances of religion, as valid as the religious elements from Tribal societies, sprinkled throughout Western Law.
I maintain that tribal societies use social control and coercion because of the aggressive sanctions imposed on tribe members who violate their social order. Now, Groarke may persist in saying that, though the elders are well respected, “their authority is not obligatory” (Groarke, p. 9). However, the actual application of this non-obligatory authority in Tribal societies renders his argument unsupported by the evidence that Groarke himself supplies. The gruesome accounts of tribal sanctions cited in his paper are certainly beyond the doings of spirits. From blood feuds in Wales to the chastity belts of the Cheyenne girls, these accounts hardly describe ethereal moral laws (Groarke, p. 9-13). They describe, rather, frantic attempts by homo sapiens to organize their societies and maintain social order. The claim that banishment is the “ultimate tribal sanction” (Groarke, p.19) relies on the religious notion of personhood that Groarke describes as being part of Tribal life. To be banished would include rejection by an individual’s own family, and spiritual banishment. I would argue that the threat, anxiety, and emotional torture experienced by a banished individual are evidence of that harsh psychological coercion inflicted by tribal elders. Indeed, Groarke’s accounts of the “consensus” achieved by tribal societies are not based on interviews with members of tribes. They more than likely reflect his romanticized notion of harmonious tribal societies.
Groarke’s romanticized notion that Tribal Law does not rely on social control is a dubious inference from the premise that tribal societies lack the large-scale measures to achieve social control found in societies with centralized governments. However, what he describes as cohesion, others might describe as social manipulation. Tribal rules, often enforced by violent consequences at the behest of vengeful spirits whose guidance only the tribal elders could interpret could easily have been employed for social control. In fact, Groarke demonstrates these principles using examples of Angakkuuniq from Inuit shamanistic law. According to the account provided by Groarke, if a member of the tribe breaks the titigusiit (rules), the corresponding punishment is to be killed by a shaman’s tuurngaq (vengeful spirit). This form of law is not orthodox as far as societies with centralized governments are concerned and thus, it makes sense that Groarke would consider the practice to be distinct from western law, yet the broken rule is definitively a law, nonetheless. Another example of Groarke’s commitment to establishing the morality endemic to Tribal law is based on the argument that, since animals have tarniit, (a term for soul) “hunters have to respect and not abuse them” (Groarke, p. 9). Groarke is trying to argue that morality is associated with the hunting practices of Tribal societies. Although the moral evaluation of hunting is outside the scope of this discussion, I would argue that having ‘respect’ for an animals’ tarniit is irrelevant, because the inevitably violent result of hunting remains the same from the animal’s perspective, regardless of human imagined notions of ‘respect’. Our perceptions of events do not alter them. Groarke’s argument would be strengthened if he mentioned any tribal society practice that improved the process for humans and animals alike. Sadly, he does not produce any such evidence.
Groarke attempts to support his central argument by demonstrating the cohesion of societies that adhere to Tribal law, especially compared with Western society. The notion that “cohesion mitigates the need for coercion” (Groarke, p. 15) is yet another example of Groarke confusing an end for its means. Cohesion may be a common condition of tribal life, but it is often achieved by coercion. This is akin to arguing that having clean teeth mitigates the need for brushing your teeth. It is a ludicrous notion when the former requires the latter. The notion that tribal law engenders social cohesion because it is based on a set of customs, or “way of life, rather than majority rule” (Groarke, p. 16) is an incomplete argument. Following a set of customs does not automatically entail cohesion. Groarke compares Western society with Tribal society by arguing that the “fundamental irritant in the modern law” (Groarke, p. 21) is absent from Tribal society. This “irritant” is the concept that individuals living under the state often reject laws they disagree with. Groarke takes for granted that members of Tribal societies happily follow any law set before them by their leaders. The assertion that “Tribal Law is consistent across many cultures” (Groarke, p. 6), based on Pollock’s reading, furnishes Groarke the grounds on which to generalize about Tribal Law. However, it gives rise to many questions. Eventually, the constant generalizations in Groarke’s claims lead to a weakening of his arguments. He may have been able to strengthen his position had he included references to modern tribal societies, who often must interact with Western societies, providing a more practical context for interpreting his work.
The lack of attention given to the reality behind the cosmological nature of Tribal law is the key flaw in Groarke’s paper. His somewhat stereotypical depiction of a tribal society living in cohesion and free from social control reveals his biased worldview. Tribal law is akin to an underdeveloped positivist legal system, lacking checks and balances, but certainly not based in any universal morality, as Groarke implies. Groarke’s impression of Tribal society is built on fantasies and generalization that ultimately weaken his arguments. Despite his best efforts, the connection between law and morality remains a mystery, one not elucidated by Tribal law.
Works Cited
Groarke, Paul, and Frederick Pollock. “Tribes and the Origins of Law.” Legal Theories: a. Historical Introduction to Philosophy of Law, Oxford University Press, 2013, pp. 1– 26.