39 stripes - revisited

A while back I posted a comment on the usage in Southern law books of "39 lashes" as the specific punishment given to slaves for select crimes, such as publicly speaking out against the slave system. When I asked, "why 39?", after some searching I found that (supposedly) any more than that was considered a death sentence under Jewish law. So for example, Paul was given only 39 lashes, 5 times, by the Jews, according to 2 Corinthians 11.

There are several rationale given for making the maximum at 40, according to different versions of the Bible:

• Punishing an Isrealite with over 40 lashes would cause the punisher to be publicly humiliated ("your brother [the punisher] will be degraded in your eyes")
• In some cases, a bit worse than the above: "thy brother will become despicable in thine eyes"

 According, however, to written Jewish law, apparently they capped it at 39 because 40 was considered "full judgment" delivered by God, according to passages from Genesis and Numbers (and other references to 40 in the Old Testament). The 40 in Genesis, for example, refers to the 40 days and 40 nights of flooding. In Numbers, it refers to God punishing those who sinned by making their children serve as Shephards for 40 years. So accordingly, one might think that 40 was actually considered a death sentence, or at the very least, was considered entirely unthinkable as a punishment carried out by anyone other than God.

This seems to be the most plausible reading of the issue. Here is the source used for some of this discussion: http://bible.cc/2_corinthians/11-24.htm.

Ques. Do you not find yourself mistaken now? Ans. Was not Christ crucified.

Christopher Tomlins on Walter Benjamin, Max Weber, and Nathaniel Turner's Confessions:

Why did Memnon's reverberations haunt Thomas Roderick Dew? What was the sound that the broken, thrown-down statue of an Ethiopian warrior-king made when touched by the rising sun every day, day after day? Pausanias says it was like 'the breaking of the string of a lute or lyre.' Perhaps that was what Turner's voice sounded like in Southampton's courtroom -- the breaking of an 'endless pagan chain of guilt and atonement.' Not guilty.

Read more here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2034443

"is there truth in interpretation?" dworkin on law, literature, and history

columbus day

Arawak men and women, naked, tawny, and full of wonder, emerged from their villages onto the island's beaches and swam out to get a closer look at the strange boat. When Columbus and his sailors came ashore, carrying swords, speaking oddly, the Arawaks ran to greet them, brought them food, water, gifts. He later wrote of this in his log:

They ... brought us parrots and balls of cotton and spears and many other things, which they exchanged for the glass beads and hawks' bells. They willingly traded everything they owned.... They were well-built, with good bodies and handsome features.... They do not bear arms, and do not know them, for I showed them a sword, they took it by the edge and cut themselves out of ignorance. They have no iron. Their spears are made of cane.... They would make fine servants.... With fifty men we could subjugate them all and make them do whatever we want.

These Arawaks of the Bahama Islands were much like Indians on the mainland, who were remarkable (European observers were to say again and again) for their hospitality, their belief in sharing. These traits did not stand out in the Europe of the Renaissance, dominated as it was by the religion of popes, the government of kings, the frenzy for money that marked Western civilization and its first messenger to the Americas, Christopher Columbus.

From chapter 1 of Howard Zinn's A People's History of the United States (pg. 1)

gender roles: other explanations?

In the previous post, I mentioned recent research highlighting how economic historians think about gender roles and labor. Regardless of any problems that may exist with their econometric technique, it's clear that their overall framework is more economic than historical.One could even say that the economic historians' creed -- at least in modern research -- is path dependence, which is mainly a mathematical concept which has been criticized for its ahistorical characteristics by many historians.

Labor or legal historians are generally more interested in the details behind why cultural norms and beliefs persist, even in the presence of economic change. Intuition for why we might go this route: 1. institutions have significant inertia; 2. economic change does not necessarily lead to political changes given the existing power structure in society as a coercive force; and (similar to 2) 3. pre-existing political structures have been shown to determine the trajectory of economic change, particularly the choice of technique (i.e. technological change). All of these factors are things that economic historians can learn from historians and represent a way that they can strengthen their  own arguments.

(1) is something that even mainstream economic historians would probably agree with, though they would still want to assert that the adjustment mechanism is largely driven by material (market) forces. Intuition behind (2) can actually be found in the frontiers of research on political economy, most notably the work of Daron Acemoglu (see his Political Economy lecture notes , for example). (3) Is somewhat more radical but has been a mainstay in the political science and history literature for many years -- see for example Robert Brenner's explanation for the transition from feudalism to capitalism. (3) is, without a doubt, an extremely important idea.

To see how these ideas work, consider a recent example from economic history.

A classic example of the "gender roles" debate among economists and legal/labor historians in the American context highlighting the relevance of both (1) and (2) above is Geddes and Lueck's (2002) article, published in the American Economic Review, on the growth of women's rights in the 19th and early-20th centuries. They attempt to explain the emergence of women's rights using the fact that their increasing participation in the market economy increased their relative bargaining power in the household, leading to political change in the form of the decline of femme covert. Geddes and Lueck, both being economists, are rather ahistorical in their account, trying to place some economic forces regarding bargaining power at the forefront of historical change.

Geddes and Lueck fail to mention -- both in their paper and in their bibliography -- Norma Basch's (1979) work, Invisible Women, in which she uncovers significant historical detail to show how gender norms actually persisted throughout the 19th century. For example she cites the institution of judicial review, representing the power of courts and law more generally to overturn statutes which may have been passed to improve women's condition, as a means by which  the gender system was maintained and propagated throughout society. In other words, the courts were a key reason why many legislative attempts to overturn femme covert ended in failure. So while some laws did change, the underlying application of those laws maintained considerable inertia and was influenced by political forces clearly against expanded political power for women.

As a final side note: in my critique of Alesina et al.'s paper, I mentioned the issue of endogeneity. That mainly addresses point (3) above, regarding the importance of pre-existing political structures in the direction of material (technological) change. Essentially, I would like to know how the adoption of the plough or other technologies may actually have been explained by pre-existing gender norms in select cultures, or how pre-existing gender norms may have prevailed regardless of the adoption of technology. As I mentioned in my review, I believe the weakness of the authors' geography instrument and its failure to capture the variables I suggested above means more work needs to be done.

But regardless of these failures, legal or labor historians are simply not interested in "origins"-types of theses. At any point in time, many paths could have been taken by society. Understanding that variation should be under the purview of the economic historian's craft.

gender roles and labor: path dependence

Alberto Alesina, Paolo Giulliano, and Nathan Nunn have a recent paper on the origins of gender roles.

They test the hypothesis that the cross-country variation in the cultural presence of gender norms today can be explained by looking at how different countries arranged their agricultural production prior to their Industrial Revolutions. Their framework is simple: one choice of technique did not require specific physical attributes, while the other was more capital-intensive and also required significant physical strength. Specifically, the latter technique was the plough, and given that the plough required "significant upper body strength", leading to the need for men to "specialize" in working the plough, the hypothesis is that societies that used the plough developed clear gender roles. (For agricultural tools with no biological need for specialization, women were also able to work in the fields and thus no specialization needed to occur.)

Their initial empirical strategy is to do a brute-force test of the hypothesis given country and ethnographic data on gender roles. On a crude first-pass through the data, they find a positive association between use of the plough (vs. the less-specialized and less-capital-intensive technique) and gender inequalities today. Given that this story is not really robust (gender discrimination most likely has its origins even further back than early industrialization, and indeed choice of technique could be endogenous to gender inequality -- i.e. gender inequalities prior to adoption of the plough may have influenced the economic trajectory of the region), they move on to a other possible tests of the hypothesis.

One other possible test they do is to use geographic factors as instrumental variables for the use of the plough. Ploughs are not appropriate for all types of crops, so the question becomes whether pseudo-random (based on geography) assignment of ploughs vs. other agricultural methods still ends up explaining gender inequalities. If so, then they can more confidently say that it was the plough itself, and not pre-existing gender norms favoring the adoption of the plough, which led to the gender inequalities we see today.

This second test of the thesis (i.e. the geographic origins thesis) is much more interesting and nuanced than the first. Doing so requires moving beyond OLS. Simple OLS estimates are not appropriate because plough use is most likely endogenous to existing social conditions (i.e., a more male-dominant society is probably highly correlated with the use of certain technologies and production methods). So what of these second (IV) estimates?

The authors begin by citing Engels' (1902) discussion of gender norms and agriculture. In Engels' discussion, according to the authors, intensification of agriculture led to the emergence of private property which, in turn, led to a male-dominated institutional regime overturning matriarchy. This is essentially how Engels argued it in Origin of the Family, Private Property, and the State. Intensified agriculture led to an agricultural surplus, leading to the need for market relations and private property, which gave rise to male power. Thus for Engels, it is not the capital-intensive or the use of specific physical exertion in agricultural technique which leads to male domination -- rather, imposing private property for accumulation of a surplus creates unequal power in a society.

The authors address Engels' alternative argument by including a set of controls which are intended to consider the possibility that historically patri-local marriage rules are the real driver of the variation. In the OLS estimates these "patriarchy varialbes" are not found to have an impact on the statistical significance of the main variable (plough use) -- though the estimate on plough use does drop by roughly 30% with the inclusion of these controls, highlighting that they may have some explanatory power. In other words, it seems that Engels' theory is validated, at least partially, in this analysis -- and even to the extent that the authors want to throw out Engels' theory, doing so is not justified simply through the use of OLS.

The more important point is, of course, the endogeneity issue: won't plough use be correlated with gender norms that exist prior to its adoption? The geographical IV is employed to solve the issue -- seeing whether geographies more conducive to the plough give rise to gender roles more strongly than geographies not conducive to heavy plough use. But there are problems with this strategy too: plough use according to the tables (pp. 35-36) is highly correlated with industrialized countries today. In other words, I am sure that plough use is a much better predictor for modern development than it is for gender inequalities. Still, the authors find a statistically significant impact of geography on cultural beliefs, showing some evidence for their hypothesis.

Overall, it is the presence of the significant correlation between plough use and modern economic development which sticks strongest with me as a key weakness in the authors' study. The main hypothesis is just too simple -- that the need for specialization in agriculture in particular is what led to the formation of gender inequality. Perhaps the authors simply lose a bit too much by going on such a macro-level scale.
And path dependence, as I've mentioned before, is not the most rigorous of historical methods. More about that in the next post.

further thoughts on workplace democracy: importance of law

While it has been immensely fruitful to have scholars from political science, economics, and philosophy contribute to the debate on workplace democracy, one field has been surprisingly absent from that conversation: law. A quick check over at the Workplace Prof blog, for example, does not give any evidence of the debate being discussed. The Legal History Blog has also not engaged.

That's really too bad, because I believe that law can shed a useful perspective on some of the misconceptions held by those on both the right and the left in this debate.

First, on the right, Tabarrok chimes in with his discussion of worker quits. I actually already replied to him in this post -- but allow me to briefly flesh out the idea more.

The big event in early 1800s labor law was the conscious choice of applying Master-Servant law to all contract labor, not just contracts of servitude (i.e. indentured servants). Master-Servant law, as you can imagine, is more than simply "free contract"! It permitted judges to assume a substantial degree of authority into the labor contract as a contract which implies a degree of obedience of the worker to the capitalist. Such a law is, as Karen Orren states, essentially feudal. But Master-Servant law was a conscious choice of the judges at this time! Talking about this aspect of labor law is, I think, more crucial for understanding how workplace democracy has been prohibited over the history of capitalism.

On the left, Konczal replies to Tabarrok on quits, choosing to fight Tabarrok on his own turf rather than direct the workplace democracy debate in a more fruitful direction. Even Corey Robin commits a similar error by talking about pee breaks.

In short, the point is not about freedom to exit or not to exit, the point of workplace democracy is to control the conditions of one's work -- rights over how production is actually managed. Quitting or peeing may be part of that question, but on a more fundamental level we must recognize a legal system which implicitly assumes a degree of obedience and master authority which has existed and still exists to this day.

It would be interesting to see what legal scholars have to say about the space for expanding workplace democracy, or the history of workplace democracy over time. Yes we know a lot about unions, but we don't know as much about other forms of participation as sanctioned (or not) in the law.