- Email: [email protected]
The origins of legal behavior
7. Social Biol. Strut.
1979
2, 43-51
The origins of legal behavior Margaret Program
in Human
Grutert
Biology,
Stanford
University,
USA
Law is seen as a living system which transcends narrow traditional definitions and is expressed through individual and group behavior, called ‘legal behavior’. The moral ideas or ethics which support the legal structure are flexible and change in relation to the environment. These moral concepts shape the individual’s sense of justice within the groups, replacing the rigid genetic commands governing social organization in other species. Precursors of legal behavior in non-human primates suggest that some elements of a sense of justice are transmitted genetically, i.e. legal behavior may be an innate biological mechanism, vital for survival. Ethological studies may provide models for flexible adaptations of law to environment. Findings suggest that in some important areas, legal structure must be based on the function of the relevant behavior if a species is to adapt and survive. Work with apes who can communicate by sign language or other means can elucidate the precursors of legal behavior and the development of the sense of justice. Long-term observations of free-living groups and experiments with semicaptive control groups of apes can enlighten us on the effects of environmental enrichment and deprivation on the social behavior of institutionalized individuals that can lead to medical and legal applications to the institutional care of humans. Research on brain reward relevant to legal behavior may lead to more accurate predictions concerning the effectiveness of specific laws.
Current
approaches
to legal behavior
Law is multidimensional. It is, therefore, difficult to define law in its totality. Definitions of law are influenced by different concepts about the origins of law and its function and structure. Several basic theories on the origins of law reappear throughout recorded history. One of these theories is that law is given to us by a deity or deities. Our Judaeo-Christian tradition sees law in the person of Moses receiving the Ten Commandments directly from God. Another theory holds that laws are the product of human reason. Both these theories have influenced and shaped the changing concepts of ‘natural law’ during the centuries. Today, ideologies, from Marx to Freud, are used to explain the origins of law. Legal scholars, influenced by the various theories on the origins of law, often provide very narrow definitions of law. Friedman (1975) and Llewellyn (1977) use the story of the three blind men and the elephant to illustrate this point--traditional definitions of law are not wrong, but cover only some of its dimensions. Law is a totality; it represents an evolving system which changes under the impact of the environment and is expressed in the behavior of the individual and the group. t Please
address
0140-1750/79/010043
all correspondence + 09 $02.00/0
to the author,
158 Goya @
1979
Road,
Academic
Portola Press
Valley, Inc.
CA 94025, (London)
USA.
Limited
M. Gruter Among the first to recognize this, at the beginning of the twentieth century, were an anthropologist of law (Malinowski, 1972) and a sociologist of law (Ehrlich, 1913). Ehrlich coined the expression ‘the living law’ to describe law in action as opposed to law on the books. Today, Friedman, a leading sociologist of law, uses the term ‘legal system’ for the interaction of law and behavior. The legal system includes law in action and law on the books, as well as subsystems, such as the courts. The structures and rules which are part of law have an impact on behavior, which in turn creates new norms and rules (Friedman, 1975). We may speculate that the concept of law may have been one of the first abstract ideas formulated by the human mind very early in the evolutionary history of the human species, when the awareness of rules freed human social organization from genetic commands. This paper discusses legal behavior-the group or individual response to the legal system, and its possible origins as observed in non-human primates. We will call this new approach an ethological or sociobiological perspective of law. Legal behavior and the sense of justice Individuals can obey the law, evade or ignore it, or disobey. Compliance and deviance are both legal behavior-the interaction of the individual with the legal system. A law is effective if the majority of those to whom the law is addressed obey the law. The bigger the majority, the more effective is the law. Motivations for compliance fall roughly into three categories: the first is the fear of punishment (or in the same category, but at the other end of the scale, expectation of a reward). Fear of the police, a fine or some other sanction can induce compliance, as can tax subsidies as a reward for compliance. A second motivation is peer group pressure and hierarchical patterns of group organization. We are more likely to obey the law if somebody is watching. The more important or influential the observer, the more likely is compliance. These two types of motivation are ‘rational’; they can easily be analyzed in cost-benefit terms and to explain obedience to certain regulatory laws, e.g. parking rules. We need go no further. But the individual’s response to other types of law, such as family law or laws concerning gambling, prostitution or birth control, is often influenced by ideology or religion. This is the third category of motivations: internal values, the ‘inner voice’, a devotion to an ideal, the sense of legitimacy. This type of motivation is shaped by the individual’s sense of justice and the concept of justice within his or her society. What is the concept of justice ? How does the individual sense of justice evolve ? The sense of justice is shaped by society. Society generates moral concepts and ideologies to support its structure and distribution of power (Friedman, 1975), which change as society evolves. Every new generation exposes some of society’s ‘basic truths’ as myths: falsehoods which help to maintain the status puo. The idea that the ‘rule of law’ is fair, impartial and free from politics is an important myth (Friedman, 1975). This myth helps to produce social stability, enabling people to obey the law without challenging its frequent injustices and inefficiencies. This myth is present in all legal systems, even in primitive ones (Malinowski, 1972). Myth is the glue which holds the structure together, to take over when reason fails, and is reflected in ritual and ceremony. Malinowski, reporting on law in primitive society, emphasizes the ceremonial element in the social machinery of binding force which sanctions obligations and rightful claims. We find possible precursors of ceremony in certain display behavior of chimpanzees (see Gz..a).
Origins of legal behavior
45
The legal system expresses and carries ideas and human values which influence law and legal behavior. The legal system does not produce these values (Friedman, 197.5)-they are the result of the interaction of the concept of justice within a society and the individual’s sense of justice in a given environment (Gruter, 1977). Reward and punishment or peer group and hierarchical pressures may also be present as motivations to obey rules in non-human species. However, the ‘sense of justice’ which serves as a yardstick in deciding between right and wrong seems to be uniquely human. Yet, precursors of this mechanism may be found in other species. Research to elucidate these earlier elements is relevant to a better understanding of the effectiveness of law. The emotional attachment to values is present in all human societies, from the most primitive to the most complex. It is closely related to the human ‘predisposition to religious beliefs which is the most complex and powerful force in the human mind’ (Wilson, 1978). Values can impose constraints, but can also motivate people to commit atrocities against others and sometimes against themselves. These controls, working through the censors and motivators in the emotive centers of the brain (Wilson, 1977), have evolved during millions of years of prehistory under conditions that to a large extent no longer exist. These emotive controls are part of human behavior and vital to survival, but to accept their guidance uncritically could lead to disaster. Continuing to value a high birthrate, for example, is an emotional attachment to a can be maladaptive and threaten the belief which, in a changing environment, species’ survival. New findings in the natural sciences may help provide clues to how values become the basis for laws, using a sociobiological approach to law. Sociobiology is ‘the systematic study of the biological basis of all forms of social behavior, in all kinds of organisms, including man’ (Wilson, 1975); the sociobiological approach includes ethology, comparative psychology, ecology and population genetics. Studies in these fields provide important historical perspectives on social structures and attempt to construct the general laws of genetics and social evolution. If these general laws can be extended to the social organization of human society, this can be of crucial importance to research on legal behavior. Of course, there is a tremendous difference between humans and other social species, such as insects. One species of African termites performs the most astonishing feats of engineering and construction, as thousands of individual termites co-operate to build air-conditioned nests,.but the individual termite has a brain capacity of only 100,000 nerve cells. The termites’ behavior is completely programmed, not guided by flexible laws created by group concensus or adaptable to a changing environment. Human beings, in contrast, possess a brain capacity of approximately 100,000 billions of neurons (Wilson, 1977). The explanation for the rigidity of insect societies’ behavior in comparison to the plasticity of human society may be the size of the brain. Yet, in spite of these enormous differences a number of new findings, e.g. the work done by Hamilton (1964), T rivers (1971) and others on reciprocal altruism, inclusive fitness and kin selection, apply to many species and may supply models which can be examined as possible bases for new and more effective laws. If the function of the law complements the function of the behavior which the law attempts to regulate, the law is more effective (Gruter, 1976). Throughout their evolutionary history, humans have had to adjust their sense of right or wrong to a changing environment. Value systems could only have come into existence because there is a cerebral mechanism which makes these adjustments.
M. Gruter Let us assume that the mechanism which serves this function is also instrumental in inducing the individual to obey rules. Do human beings have an innate propensity to discriminate when to obey and disobey in accordance with their ideas of right and wrong ? Can we find similar behavior, precursors of these human traits, in nonhuman primates-cultural behavior which is not shaped solely by rigid genetic codes ? Precursors of legal behavior in non-human primates A prerequisite for cultural behavior is the readiness to accept information which is not genetically transmitted. Ethological studies indicate that this readiness exists in non-human primates. One well-described example concerns a group of macaques that adopted two new eating habits within 6 years after introduction by one young member of the group (Gruter, 1977). Jane Goodall’s observations of wild chimpanzees in Gombe show that many habits-the choice of foods, use of tools, tool-making, even child care-are at least partly learned (Goodall, 1968). This combination of a propensity towards learning a certain kind of behavior and the reinforcement of the behavior by the environment is evident not only in positive, survival traits, but in destructive behavior also. Goodall observed intracommunity killing of infants in 1975, committed by a chimpanzee called Passion with her daughter, Porn, joining in this behavior. For unknown reasons, Passion instigated the killing of other females’ infants and ate their cadavers with her daughter, Porn (Goodall, 1977). An incident that occurred in September 1978 was reported by Goodall in a personal communication: When the baby (of another female, Miff) was about 4 weeks old, Passion made a very serious attempt to seize it. The field assistants threatened Passion-they said it was as though she was blind drunk-she was so intent on getting the baby that she did not seem to notice the mennot even when a stone hit her! However, Porn was scared. She made no attempt to join her mother. And so Miff (the mother of the infant) was able to fight off Passion. . . . Then Miff ran until she met Figan (the alpha male in this group) who was coming anyway, having heard the screams. MB’s screams changed to waa’s of aggression and rage and she led Figan back to Passion. Figan then displayed at Passion who fled, screaming.
We do not know what induces the desire in Passion to kill and eat other females’ infants, or if Porn has inherited this desire from her mother or has learned this behavior. Porn could be a case of an individual who has inherited a propensity towards a deviant trait (in 1975 this was the first observation of intracommunity killing in 15 years), reinforced by her environment (living with her mother). An interesting sequel was reported in October 1978. Porn became a mother and hid her own infant from Passion for a week, then introduced the infant very slowly. Porn cautiously rejoined the group only when there were no signs of attack by Passion. At last report, Porn’s infant is safe from Passion, and mother and daughter are as close as ever (personal communication, 1978). Has Passion decided that it is ‘wrong’ to kill her daughter’s infant ? Goodall’s observations are also of interest concerning the behavior of the alpha male. By responding to the screams of the threatened infant’s mother he acted as a protector; by displaying at Passion he attempted to ‘punish her deviance’. We can see in his behavior precursors of a social machinery attempting to sanction rules and, in his display, the origins of ritual and ceremony entailing public control and binding force (Malinowski, 1972). Another rudimentary form of ritual is the chimpanzee’s response to rain at the beginning of the rainy season. Chimpanzees dislike water and try to avoid contact
Origins of legal behavior
47
with it. They use stepping-stones when crossing streams, and their hair stands out while they do this, as it does during displays. Chimpanzees also display in front of waterfalls and are obviously uncomfortable when exposed to rain, but unlike other apes, such as the orangutans, they do not ever construct shelters from the rain. It seems that chimpanzees are so frustrated by the rain that they act out their frustration by displays. The impressive displays and dances at the beginning of the rainy season may be a rudimentary form of worship, similar to the worship of natural forces practiced by primitive human societies (Goodall, 1974). From these precursorsi the first rituals and religions may have evolved. The origins of law are rooted in these primitive religions, and law has remained closely connected with religion and ideology. The emotional need to live on good terms with supernatural forces and to accept these immutable forces may be closely related to a willingness to respect authority and established power. Man’s ability to believe and imagine creatively may serve to invest the law with conviction and persuasive power. During evolutionary history, this willingness may have been reinforced by dominance patterns-high-status individuals not only verbalized the rules but had the power to enforce them. It was probably necessary for the weaker individual’s survival to obey. The presence or absence of the most dominant members of the group influences all group behavior among the chimpanzees. Kinship-the status of the mother-influences the status of the adult offspring in chimpanzees and other primate groups. Dominance and kinship will to some degree determine legal behavior. However, dominance is not always decisive in competitions for desirable objects, even among non-human primates. There are examples of stronger individuals respecting the ‘rights’ of the weaker. Among chimpanzees, meat is a highly desirable food, usually hunted by several individuals joining together for this purpose. In order to obtain this desirable commodity, the group must find ways to co-operate, and develop rules adapted towards this goal. Once the prey has been caught and bigger chunks have been secured by some individuals, others will beg for shares from the possessors. Even the highest-ranking animal may beg for meat for hours from a weaker member of the group. He will not take it by force and will go without if the weaker animal refuses to share (Teleki, 1973). This suggests that dominance does not interfere with the development of rules which are based on reciprocity. The stronger as well as the weaker individual benefits from reciprocal actions, and the stronger as well as the weaker individual will beg from the possessor of desirable objects and respect him as a possessor. The prevalence of hierarchical systems in primate society may have encouraged the development of reciprocal rules. Similarly Kummer’s (1971) studies of hamadrayas baboons show that the strongest animal in the troop may not have the largest harem. The highly possessive males of this species have developed a mechanism which enables them to cope with a potentially dangerous trait which could destroy the group-rivalry over females. Once a female has been adopted by a male and has followed him for a relatively short time, other males will not challenge this relationship, regardless of their ranking in the group. The baboons’ propensity towards possessiveness, which could lead to dangerous competition, is complemented by a respect for established relationships. We may speculate that property rights and respect for possession developed on this basis (Gruter, 1977). Francine Patterson has observed a sense of right and wrong in Koko, the female gorilla who is being .studied at Stanford University. MS Patterson has been working with Koko since 1972, when Koko was 1 year old, and has taught the gorilla more than
48
M. Grutm
500 words of American Sign Language. Ms Patterson relates the following incident, which indicates that Koko has a sense of justice and is even capable of expressing it: Koko was introduced to a game, called ‘Keep away’ (two or more individuals compete in retrieving a ball after it is thrown). Over a period of 2-3 weeks, Koko learned this game and invented some new rules of her own. She insisted that others only pretend to retrieve the ball after it was thrown, but actually leave it to her. Or, in other words, Koko insisted on winning. When a new assistant played the game and actually beat her to the ball and took it, Koko bit him, Koko was asked why she bit the assistant, and replied in sign language, ‘Him ball bad’. MS Patterson next tried to take the ball away when she played the game, and Koko also playfully bit her! (Patterson, 1978). Koko was not just a bad loser, she justified her own behavior by blaming the other player for breaking the rules! These examples of precursors of legal behavior in non-human primates are not exhaustive or presented as conclusive evidence. But work with man’s closest relatives, the chimpanzee and gorilla, can provide new insights about the evolution of legal behavior-how it is adapted to the environment and changes according to group needs and goals, and how a yardstick for right and wrong develops.
New directions:
ethological and sociobiological to legal behavior
research
relevant
Reliable data of behavioral observations of apes are now available based on Goodall’s research of almost 20 years of one group of wild chimpanzees and Fossey’s studies of wild gorillas during the past 8 years (Fossey, 1975). Brindamour has studied the orangutan in the wild for approximately 5 years (Galdikas-Brindamour, 1975). Observations of captive chimpanzees and gorillas who have been taught sign language or other means of communication have also opened up new and exciting possibilities. A similar project of teaching sign language to an orangutan is under way at the University of Tennessee by Lynn Miles. From all these different approaches, we may be able to learn about the process by which rules are developed or acquired. Through direct communication with intelligent non-human primates, we may learn about the development of their sense of right and wrong! Planned as future research is the observation of Koko’s interaction with structured games. Once she has learned the rules, will she attempt to change them or to transmit them to human companions or to her gorilla companion, Mike ? How often and under what circumstances will Koko try to cheat, and how ? Will she always be a ‘bad loser’ or justify her own misdeeds by blaming others for breaking the rules ? Will she obey rules more readily if offered a reward for compliance, or avoid breaking the rules if threatened with punishment ? Will her degree of obedience increase or decrease in proportion to the length of time she has been following the rules ? Will she invent new rules of her own ? We can also observe her response to different kinds of games-games which depend on luck only, such as gambling; games which are partly or totally dependent on the player’s skill; and very competitive games which require great efforts or skill to win, such as athletics. Will she obey the rules better if she plays a solitary game or games that require two or more players ? We can also observe how Koko uses the concepts of right or wrong in relation to winning or losing, and whether she connects the concepts of ‘good’ or ‘bad’ with ‘right’ and ‘wrong’. The study of Koko’s behavior when playing structured games may demonstrate precursors of legal behavior. To play games one has to obey rules, and legal behavior
Origins of legal behavior
49
is the response to ‘the rules of the game’ within a legal system. Human children learn to perceive rules and use them at a very early stage in their development as soon as they begin to acquire language. In order to cope with the complex task of learning language, children ‘break the language down into its simplest parts and develop the rules they need to put the parts together again’ (Moskowitz, 1978). Could it be that the human ability to speak-the physical capacity to formulate words, the structures of lips, tongue and throat-is responsible for the human propensity to break down automatically into rules all visual and auditory impressions, leading to a subconscious awareness of rules and, finally, to legal behavior ? Is the human capacity for language responsible for human beings’ comparative freedom from exclusively or predominantly genetic commands concerning social structure ? Can an ape, given the opportunity to learn a sign language and thereby communicate, learn to develop new rules and a yardstick to evaluate their use ? Another exciting possible project concerns a group of approximately ten chimpanzees whose behavior has been recorded in much detail during the past 5 years at the Stanford Outdoor Primate Facility (SOPF). During this time, they have had easy access to food and did not have to exert efforts or use ingenuity to eat. We know that one of the major causes of distress to captive chimpanzees is often sheer boredom. In their natural habitat chimpanzees enjoy an extremely rich physical and social environment. They ‘work’ for about 8 hours a day to find and ‘prepare’ their food. Picking the ripe fruit and finding out by touch which fruit are not yet ripe requires time, as does taking nuts out of their shells or opening other hard-shelled or prickly fruit, sometimes with the help of tools, and termite fishing. All of these activities have been amply illustrated by Goodall’s movies (National Geographic, 1974-6). The chimpanzees at SOPF include individuals of different age groups, infants, juveniles and young adults of both sexes. The same group (including younger ones born within the group who are at comparable ages) can now be studied and their behavior recorded when changes are made to enrich their environment. Some types of food can be presented in such a way that the chimpanzees must ‘work’ for itjust as they have to work for termites and many other natural foods in the wild. Different food-dispensing containers, which necessitate tool use or other kinds of object manipulation before the chimpanzees can eat, will accomplish this goal. The following questions can be asked: How will this change in environment affect the social interactions among the group ? Will there be less aggression ? Will new individuals emerge as leaders ? Will there be more peer group formation or a stronger hierarchical order ? Findings may provide clues and models for enrichment of the environment in many areas of institutionalization. We can ask how enrichment of the environment by ‘work’ may affect legal behavior, recidivism, etc. ? Other possible avenues of biological research into legal behavior concern chemical actions and reactions within the brain. Two decades ago James Old found that ‘pleasure centers’ in the brain belong to a system of pathways which are important in learning and memory. Specific chemical substances are involved in stimulating these centers and in mediating these very complex processes. Further experiments showed that ‘brain reward’ can be traced to particular nerve cells and their fibres. In rats Routtenberg found that ‘the animals would forego food essential to their survival in order to obtain brain stimulation’. Similar results were obtained with rhesus monkeys which led Routtenberg to believe that higher primates, perhaps even human beings, will be similarly affected (Routtenberg, 1978). How does all this relate to legal 4
50
M.
Gruter
behavior ? Probably, ‘the inner voice’, the sense of justice, speaks to us in order to induce behavior which stimulates brain reward. What ‘feels right’ may be a literal description of processes which take place in the brain in relation to our concepts of right and wrong. Based on present and future research in all these various fields we may be able to develop models by which we can test the satisfaction or pleasure the individual experiences when obeying specific laws. By developing methods to observe the presence or absence of catecholamines, substances which have bee? connected with feelings of pleasure or depression, we can measure increase or decline of brain reward for obeying specific rules. This may enable us to predict to what degree the effectiveness of a specific law is influenced by the sense of justice and what conditions are most likely to strengthen the ‘inner voice’.
Acknowledgments I am greatly indebted to my teacher Lawrence M. Friedman, Professor of Law, Stanford University, for his interest, his constructive criticism and constant readiness to help by discussing and reading many drafts of this and previous papers over many years. I am also grateful to Dr Jane Goodall for her generous help in answering questions and sometimes finding new answers in areas far remote from her line of research. My thanks to Professor Konrad Lorenz who inspired me and encouraged me to ‘build a bridge’ from law to ethology. Thanks also to Professor Bernhard Hassenstein, University of Freiburg, Germany; to Professor Manfred Rehbinder, University of Ziirich, Switzerland; to Professor Michael S. Wald, Stanford University-Law School; to Professor Wolfgang Wickler, Max-Planck-Institut, Seewiesen, Germany, for stimulating discussions and reading previous drafts.
References of the Sociology of Law (transl. W. L. Moll). Cambridge, Mass. : Harvard University Press. First published in German in 1913. Fossey, D. (1975). Search for the Great Apes. National Geographic Movie. Friedman, L. (1975). The Legal System. New York: Russell Sage Foundation. Galdikas-Brindamour, B. (1975). Nat. Geogr. 148, 444. Goodall, J. (1968). Anim. Behav. Monogr. 1, 161. Goodall, J. (1974). Stanford University Lectures. Goodall, J. (1974-6). National Geographic Movies. Goodall, J. (1977). Folia Primatol. 28, 259-282. Grater, M. (1976). Die Bedeutung der Verhaltensforschung fiir die Rechtswissenschaft. In Schriftertreihe ZUT Rechtssoziologie und Rechtstatsachenforschung (E. E. Hirsch & M. Rehbinder, Eds). Berlin : Duncker & Humblot. Gruter, M. (1977). Florida State Univ. Law Rev. 5, 181. Tallahassee, Fla. Hamilton, W. D. (1964).J. theor. BioZ. 7(l), 1. Kurmner, H. (1971). Primate Societies, In Worlds of Man, Studies in Cultural Ecology (W. Goldschmidt, Ed.). Chicago-New York: Aldine-Atherton, Inc. Llewellyn, K. N. (1977). Recht, Rechtsleben und Gesellschaft. In Schriftenreihe zur Rechtssoziologie und Rechtstatsachenforschung (E. E. Hirsch & M. Rehbinder, Eds). Berlin: Duncker & Humblot. Malinowski, B. (1972). Crime and Custom in Savage Society. Totowa, N.J.: Littlefield, Adams & Co. Originally published in 1926. Moskowitz, B. A. (1978). Scient. Am. 239(S), 92. Patterson, F. G. (1977).J. Gorilla Foundation 1, 2. Patterson, F. G. (1978). The gestures of a gorilla: language acquisition in another pongid. In Brain and Language 5, 72-97. Stanford, CA: Academic Press, Inc.
Ehrlich,
E. (1936).
Fundamental
Principles
Origins of legal behavior Routtenberg, A. (1978). Scient. Am. 239, 154. Teleki, G. (1973). Scient. Am. 230, 33. Trivers, R. L. (1971). Q. Rev. Biol. 46, 35. Wilson, E. 0. (1975). Sociobiology: The New Synthesis. Cambridge, Press of Harvard University. Wilson, E. 0. (1977). Daedulus 2, 127. Wilson, E. 0. (1978). On Human Nature. Cambridge, Mass.: Harvard
51
Mass.: University
The
Belknap
Press.
1979
2, 43-51
The origins of legal behavior Margaret Program
in Human
Grutert
Biology,
Stanford
University,
USA
Law is seen as a living system which transcends narrow traditional definitions and is expressed through individual and group behavior, called ‘legal behavior’. The moral ideas or ethics which support the legal structure are flexible and change in relation to the environment. These moral concepts shape the individual’s sense of justice within the groups, replacing the rigid genetic commands governing social organization in other species. Precursors of legal behavior in non-human primates suggest that some elements of a sense of justice are transmitted genetically, i.e. legal behavior may be an innate biological mechanism, vital for survival. Ethological studies may provide models for flexible adaptations of law to environment. Findings suggest that in some important areas, legal structure must be based on the function of the relevant behavior if a species is to adapt and survive. Work with apes who can communicate by sign language or other means can elucidate the precursors of legal behavior and the development of the sense of justice. Long-term observations of free-living groups and experiments with semicaptive control groups of apes can enlighten us on the effects of environmental enrichment and deprivation on the social behavior of institutionalized individuals that can lead to medical and legal applications to the institutional care of humans. Research on brain reward relevant to legal behavior may lead to more accurate predictions concerning the effectiveness of specific laws.
Current
approaches
to legal behavior
Law is multidimensional. It is, therefore, difficult to define law in its totality. Definitions of law are influenced by different concepts about the origins of law and its function and structure. Several basic theories on the origins of law reappear throughout recorded history. One of these theories is that law is given to us by a deity or deities. Our Judaeo-Christian tradition sees law in the person of Moses receiving the Ten Commandments directly from God. Another theory holds that laws are the product of human reason. Both these theories have influenced and shaped the changing concepts of ‘natural law’ during the centuries. Today, ideologies, from Marx to Freud, are used to explain the origins of law. Legal scholars, influenced by the various theories on the origins of law, often provide very narrow definitions of law. Friedman (1975) and Llewellyn (1977) use the story of the three blind men and the elephant to illustrate this point--traditional definitions of law are not wrong, but cover only some of its dimensions. Law is a totality; it represents an evolving system which changes under the impact of the environment and is expressed in the behavior of the individual and the group. t Please
address
0140-1750/79/010043
all correspondence + 09 $02.00/0
to the author,
158 Goya @
1979
Road,
Academic
Portola Press
Valley, Inc.
CA 94025, (London)
USA.
Limited
M. Gruter Among the first to recognize this, at the beginning of the twentieth century, were an anthropologist of law (Malinowski, 1972) and a sociologist of law (Ehrlich, 1913). Ehrlich coined the expression ‘the living law’ to describe law in action as opposed to law on the books. Today, Friedman, a leading sociologist of law, uses the term ‘legal system’ for the interaction of law and behavior. The legal system includes law in action and law on the books, as well as subsystems, such as the courts. The structures and rules which are part of law have an impact on behavior, which in turn creates new norms and rules (Friedman, 1975). We may speculate that the concept of law may have been one of the first abstract ideas formulated by the human mind very early in the evolutionary history of the human species, when the awareness of rules freed human social organization from genetic commands. This paper discusses legal behavior-the group or individual response to the legal system, and its possible origins as observed in non-human primates. We will call this new approach an ethological or sociobiological perspective of law. Legal behavior and the sense of justice Individuals can obey the law, evade or ignore it, or disobey. Compliance and deviance are both legal behavior-the interaction of the individual with the legal system. A law is effective if the majority of those to whom the law is addressed obey the law. The bigger the majority, the more effective is the law. Motivations for compliance fall roughly into three categories: the first is the fear of punishment (or in the same category, but at the other end of the scale, expectation of a reward). Fear of the police, a fine or some other sanction can induce compliance, as can tax subsidies as a reward for compliance. A second motivation is peer group pressure and hierarchical patterns of group organization. We are more likely to obey the law if somebody is watching. The more important or influential the observer, the more likely is compliance. These two types of motivation are ‘rational’; they can easily be analyzed in cost-benefit terms and to explain obedience to certain regulatory laws, e.g. parking rules. We need go no further. But the individual’s response to other types of law, such as family law or laws concerning gambling, prostitution or birth control, is often influenced by ideology or religion. This is the third category of motivations: internal values, the ‘inner voice’, a devotion to an ideal, the sense of legitimacy. This type of motivation is shaped by the individual’s sense of justice and the concept of justice within his or her society. What is the concept of justice ? How does the individual sense of justice evolve ? The sense of justice is shaped by society. Society generates moral concepts and ideologies to support its structure and distribution of power (Friedman, 1975), which change as society evolves. Every new generation exposes some of society’s ‘basic truths’ as myths: falsehoods which help to maintain the status puo. The idea that the ‘rule of law’ is fair, impartial and free from politics is an important myth (Friedman, 1975). This myth helps to produce social stability, enabling people to obey the law without challenging its frequent injustices and inefficiencies. This myth is present in all legal systems, even in primitive ones (Malinowski, 1972). Myth is the glue which holds the structure together, to take over when reason fails, and is reflected in ritual and ceremony. Malinowski, reporting on law in primitive society, emphasizes the ceremonial element in the social machinery of binding force which sanctions obligations and rightful claims. We find possible precursors of ceremony in certain display behavior of chimpanzees (see Gz..a).
Origins of legal behavior
45
The legal system expresses and carries ideas and human values which influence law and legal behavior. The legal system does not produce these values (Friedman, 197.5)-they are the result of the interaction of the concept of justice within a society and the individual’s sense of justice in a given environment (Gruter, 1977). Reward and punishment or peer group and hierarchical pressures may also be present as motivations to obey rules in non-human species. However, the ‘sense of justice’ which serves as a yardstick in deciding between right and wrong seems to be uniquely human. Yet, precursors of this mechanism may be found in other species. Research to elucidate these earlier elements is relevant to a better understanding of the effectiveness of law. The emotional attachment to values is present in all human societies, from the most primitive to the most complex. It is closely related to the human ‘predisposition to religious beliefs which is the most complex and powerful force in the human mind’ (Wilson, 1978). Values can impose constraints, but can also motivate people to commit atrocities against others and sometimes against themselves. These controls, working through the censors and motivators in the emotive centers of the brain (Wilson, 1977), have evolved during millions of years of prehistory under conditions that to a large extent no longer exist. These emotive controls are part of human behavior and vital to survival, but to accept their guidance uncritically could lead to disaster. Continuing to value a high birthrate, for example, is an emotional attachment to a can be maladaptive and threaten the belief which, in a changing environment, species’ survival. New findings in the natural sciences may help provide clues to how values become the basis for laws, using a sociobiological approach to law. Sociobiology is ‘the systematic study of the biological basis of all forms of social behavior, in all kinds of organisms, including man’ (Wilson, 1975); the sociobiological approach includes ethology, comparative psychology, ecology and population genetics. Studies in these fields provide important historical perspectives on social structures and attempt to construct the general laws of genetics and social evolution. If these general laws can be extended to the social organization of human society, this can be of crucial importance to research on legal behavior. Of course, there is a tremendous difference between humans and other social species, such as insects. One species of African termites performs the most astonishing feats of engineering and construction, as thousands of individual termites co-operate to build air-conditioned nests,.but the individual termite has a brain capacity of only 100,000 nerve cells. The termites’ behavior is completely programmed, not guided by flexible laws created by group concensus or adaptable to a changing environment. Human beings, in contrast, possess a brain capacity of approximately 100,000 billions of neurons (Wilson, 1977). The explanation for the rigidity of insect societies’ behavior in comparison to the plasticity of human society may be the size of the brain. Yet, in spite of these enormous differences a number of new findings, e.g. the work done by Hamilton (1964), T rivers (1971) and others on reciprocal altruism, inclusive fitness and kin selection, apply to many species and may supply models which can be examined as possible bases for new and more effective laws. If the function of the law complements the function of the behavior which the law attempts to regulate, the law is more effective (Gruter, 1976). Throughout their evolutionary history, humans have had to adjust their sense of right or wrong to a changing environment. Value systems could only have come into existence because there is a cerebral mechanism which makes these adjustments.
M. Gruter Let us assume that the mechanism which serves this function is also instrumental in inducing the individual to obey rules. Do human beings have an innate propensity to discriminate when to obey and disobey in accordance with their ideas of right and wrong ? Can we find similar behavior, precursors of these human traits, in nonhuman primates-cultural behavior which is not shaped solely by rigid genetic codes ? Precursors of legal behavior in non-human primates A prerequisite for cultural behavior is the readiness to accept information which is not genetically transmitted. Ethological studies indicate that this readiness exists in non-human primates. One well-described example concerns a group of macaques that adopted two new eating habits within 6 years after introduction by one young member of the group (Gruter, 1977). Jane Goodall’s observations of wild chimpanzees in Gombe show that many habits-the choice of foods, use of tools, tool-making, even child care-are at least partly learned (Goodall, 1968). This combination of a propensity towards learning a certain kind of behavior and the reinforcement of the behavior by the environment is evident not only in positive, survival traits, but in destructive behavior also. Goodall observed intracommunity killing of infants in 1975, committed by a chimpanzee called Passion with her daughter, Porn, joining in this behavior. For unknown reasons, Passion instigated the killing of other females’ infants and ate their cadavers with her daughter, Porn (Goodall, 1977). An incident that occurred in September 1978 was reported by Goodall in a personal communication: When the baby (of another female, Miff) was about 4 weeks old, Passion made a very serious attempt to seize it. The field assistants threatened Passion-they said it was as though she was blind drunk-she was so intent on getting the baby that she did not seem to notice the mennot even when a stone hit her! However, Porn was scared. She made no attempt to join her mother. And so Miff (the mother of the infant) was able to fight off Passion. . . . Then Miff ran until she met Figan (the alpha male in this group) who was coming anyway, having heard the screams. MB’s screams changed to waa’s of aggression and rage and she led Figan back to Passion. Figan then displayed at Passion who fled, screaming.
We do not know what induces the desire in Passion to kill and eat other females’ infants, or if Porn has inherited this desire from her mother or has learned this behavior. Porn could be a case of an individual who has inherited a propensity towards a deviant trait (in 1975 this was the first observation of intracommunity killing in 15 years), reinforced by her environment (living with her mother). An interesting sequel was reported in October 1978. Porn became a mother and hid her own infant from Passion for a week, then introduced the infant very slowly. Porn cautiously rejoined the group only when there were no signs of attack by Passion. At last report, Porn’s infant is safe from Passion, and mother and daughter are as close as ever (personal communication, 1978). Has Passion decided that it is ‘wrong’ to kill her daughter’s infant ? Goodall’s observations are also of interest concerning the behavior of the alpha male. By responding to the screams of the threatened infant’s mother he acted as a protector; by displaying at Passion he attempted to ‘punish her deviance’. We can see in his behavior precursors of a social machinery attempting to sanction rules and, in his display, the origins of ritual and ceremony entailing public control and binding force (Malinowski, 1972). Another rudimentary form of ritual is the chimpanzee’s response to rain at the beginning of the rainy season. Chimpanzees dislike water and try to avoid contact
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with it. They use stepping-stones when crossing streams, and their hair stands out while they do this, as it does during displays. Chimpanzees also display in front of waterfalls and are obviously uncomfortable when exposed to rain, but unlike other apes, such as the orangutans, they do not ever construct shelters from the rain. It seems that chimpanzees are so frustrated by the rain that they act out their frustration by displays. The impressive displays and dances at the beginning of the rainy season may be a rudimentary form of worship, similar to the worship of natural forces practiced by primitive human societies (Goodall, 1974). From these precursorsi the first rituals and religions may have evolved. The origins of law are rooted in these primitive religions, and law has remained closely connected with religion and ideology. The emotional need to live on good terms with supernatural forces and to accept these immutable forces may be closely related to a willingness to respect authority and established power. Man’s ability to believe and imagine creatively may serve to invest the law with conviction and persuasive power. During evolutionary history, this willingness may have been reinforced by dominance patterns-high-status individuals not only verbalized the rules but had the power to enforce them. It was probably necessary for the weaker individual’s survival to obey. The presence or absence of the most dominant members of the group influences all group behavior among the chimpanzees. Kinship-the status of the mother-influences the status of the adult offspring in chimpanzees and other primate groups. Dominance and kinship will to some degree determine legal behavior. However, dominance is not always decisive in competitions for desirable objects, even among non-human primates. There are examples of stronger individuals respecting the ‘rights’ of the weaker. Among chimpanzees, meat is a highly desirable food, usually hunted by several individuals joining together for this purpose. In order to obtain this desirable commodity, the group must find ways to co-operate, and develop rules adapted towards this goal. Once the prey has been caught and bigger chunks have been secured by some individuals, others will beg for shares from the possessors. Even the highest-ranking animal may beg for meat for hours from a weaker member of the group. He will not take it by force and will go without if the weaker animal refuses to share (Teleki, 1973). This suggests that dominance does not interfere with the development of rules which are based on reciprocity. The stronger as well as the weaker individual benefits from reciprocal actions, and the stronger as well as the weaker individual will beg from the possessor of desirable objects and respect him as a possessor. The prevalence of hierarchical systems in primate society may have encouraged the development of reciprocal rules. Similarly Kummer’s (1971) studies of hamadrayas baboons show that the strongest animal in the troop may not have the largest harem. The highly possessive males of this species have developed a mechanism which enables them to cope with a potentially dangerous trait which could destroy the group-rivalry over females. Once a female has been adopted by a male and has followed him for a relatively short time, other males will not challenge this relationship, regardless of their ranking in the group. The baboons’ propensity towards possessiveness, which could lead to dangerous competition, is complemented by a respect for established relationships. We may speculate that property rights and respect for possession developed on this basis (Gruter, 1977). Francine Patterson has observed a sense of right and wrong in Koko, the female gorilla who is being .studied at Stanford University. MS Patterson has been working with Koko since 1972, when Koko was 1 year old, and has taught the gorilla more than
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500 words of American Sign Language. Ms Patterson relates the following incident, which indicates that Koko has a sense of justice and is even capable of expressing it: Koko was introduced to a game, called ‘Keep away’ (two or more individuals compete in retrieving a ball after it is thrown). Over a period of 2-3 weeks, Koko learned this game and invented some new rules of her own. She insisted that others only pretend to retrieve the ball after it was thrown, but actually leave it to her. Or, in other words, Koko insisted on winning. When a new assistant played the game and actually beat her to the ball and took it, Koko bit him, Koko was asked why she bit the assistant, and replied in sign language, ‘Him ball bad’. MS Patterson next tried to take the ball away when she played the game, and Koko also playfully bit her! (Patterson, 1978). Koko was not just a bad loser, she justified her own behavior by blaming the other player for breaking the rules! These examples of precursors of legal behavior in non-human primates are not exhaustive or presented as conclusive evidence. But work with man’s closest relatives, the chimpanzee and gorilla, can provide new insights about the evolution of legal behavior-how it is adapted to the environment and changes according to group needs and goals, and how a yardstick for right and wrong develops.
New directions:
ethological and sociobiological to legal behavior
research
relevant
Reliable data of behavioral observations of apes are now available based on Goodall’s research of almost 20 years of one group of wild chimpanzees and Fossey’s studies of wild gorillas during the past 8 years (Fossey, 1975). Brindamour has studied the orangutan in the wild for approximately 5 years (Galdikas-Brindamour, 1975). Observations of captive chimpanzees and gorillas who have been taught sign language or other means of communication have also opened up new and exciting possibilities. A similar project of teaching sign language to an orangutan is under way at the University of Tennessee by Lynn Miles. From all these different approaches, we may be able to learn about the process by which rules are developed or acquired. Through direct communication with intelligent non-human primates, we may learn about the development of their sense of right and wrong! Planned as future research is the observation of Koko’s interaction with structured games. Once she has learned the rules, will she attempt to change them or to transmit them to human companions or to her gorilla companion, Mike ? How often and under what circumstances will Koko try to cheat, and how ? Will she always be a ‘bad loser’ or justify her own misdeeds by blaming others for breaking the rules ? Will she obey rules more readily if offered a reward for compliance, or avoid breaking the rules if threatened with punishment ? Will her degree of obedience increase or decrease in proportion to the length of time she has been following the rules ? Will she invent new rules of her own ? We can also observe her response to different kinds of games-games which depend on luck only, such as gambling; games which are partly or totally dependent on the player’s skill; and very competitive games which require great efforts or skill to win, such as athletics. Will she obey the rules better if she plays a solitary game or games that require two or more players ? We can also observe how Koko uses the concepts of right or wrong in relation to winning or losing, and whether she connects the concepts of ‘good’ or ‘bad’ with ‘right’ and ‘wrong’. The study of Koko’s behavior when playing structured games may demonstrate precursors of legal behavior. To play games one has to obey rules, and legal behavior
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is the response to ‘the rules of the game’ within a legal system. Human children learn to perceive rules and use them at a very early stage in their development as soon as they begin to acquire language. In order to cope with the complex task of learning language, children ‘break the language down into its simplest parts and develop the rules they need to put the parts together again’ (Moskowitz, 1978). Could it be that the human ability to speak-the physical capacity to formulate words, the structures of lips, tongue and throat-is responsible for the human propensity to break down automatically into rules all visual and auditory impressions, leading to a subconscious awareness of rules and, finally, to legal behavior ? Is the human capacity for language responsible for human beings’ comparative freedom from exclusively or predominantly genetic commands concerning social structure ? Can an ape, given the opportunity to learn a sign language and thereby communicate, learn to develop new rules and a yardstick to evaluate their use ? Another exciting possible project concerns a group of approximately ten chimpanzees whose behavior has been recorded in much detail during the past 5 years at the Stanford Outdoor Primate Facility (SOPF). During this time, they have had easy access to food and did not have to exert efforts or use ingenuity to eat. We know that one of the major causes of distress to captive chimpanzees is often sheer boredom. In their natural habitat chimpanzees enjoy an extremely rich physical and social environment. They ‘work’ for about 8 hours a day to find and ‘prepare’ their food. Picking the ripe fruit and finding out by touch which fruit are not yet ripe requires time, as does taking nuts out of their shells or opening other hard-shelled or prickly fruit, sometimes with the help of tools, and termite fishing. All of these activities have been amply illustrated by Goodall’s movies (National Geographic, 1974-6). The chimpanzees at SOPF include individuals of different age groups, infants, juveniles and young adults of both sexes. The same group (including younger ones born within the group who are at comparable ages) can now be studied and their behavior recorded when changes are made to enrich their environment. Some types of food can be presented in such a way that the chimpanzees must ‘work’ for itjust as they have to work for termites and many other natural foods in the wild. Different food-dispensing containers, which necessitate tool use or other kinds of object manipulation before the chimpanzees can eat, will accomplish this goal. The following questions can be asked: How will this change in environment affect the social interactions among the group ? Will there be less aggression ? Will new individuals emerge as leaders ? Will there be more peer group formation or a stronger hierarchical order ? Findings may provide clues and models for enrichment of the environment in many areas of institutionalization. We can ask how enrichment of the environment by ‘work’ may affect legal behavior, recidivism, etc. ? Other possible avenues of biological research into legal behavior concern chemical actions and reactions within the brain. Two decades ago James Old found that ‘pleasure centers’ in the brain belong to a system of pathways which are important in learning and memory. Specific chemical substances are involved in stimulating these centers and in mediating these very complex processes. Further experiments showed that ‘brain reward’ can be traced to particular nerve cells and their fibres. In rats Routtenberg found that ‘the animals would forego food essential to their survival in order to obtain brain stimulation’. Similar results were obtained with rhesus monkeys which led Routtenberg to believe that higher primates, perhaps even human beings, will be similarly affected (Routtenberg, 1978). How does all this relate to legal 4
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behavior ? Probably, ‘the inner voice’, the sense of justice, speaks to us in order to induce behavior which stimulates brain reward. What ‘feels right’ may be a literal description of processes which take place in the brain in relation to our concepts of right and wrong. Based on present and future research in all these various fields we may be able to develop models by which we can test the satisfaction or pleasure the individual experiences when obeying specific laws. By developing methods to observe the presence or absence of catecholamines, substances which have bee? connected with feelings of pleasure or depression, we can measure increase or decline of brain reward for obeying specific rules. This may enable us to predict to what degree the effectiveness of a specific law is influenced by the sense of justice and what conditions are most likely to strengthen the ‘inner voice’.
Acknowledgments I am greatly indebted to my teacher Lawrence M. Friedman, Professor of Law, Stanford University, for his interest, his constructive criticism and constant readiness to help by discussing and reading many drafts of this and previous papers over many years. I am also grateful to Dr Jane Goodall for her generous help in answering questions and sometimes finding new answers in areas far remote from her line of research. My thanks to Professor Konrad Lorenz who inspired me and encouraged me to ‘build a bridge’ from law to ethology. Thanks also to Professor Bernhard Hassenstein, University of Freiburg, Germany; to Professor Manfred Rehbinder, University of Ziirich, Switzerland; to Professor Michael S. Wald, Stanford University-Law School; to Professor Wolfgang Wickler, Max-Planck-Institut, Seewiesen, Germany, for stimulating discussions and reading previous drafts.
References of the Sociology of Law (transl. W. L. Moll). Cambridge, Mass. : Harvard University Press. First published in German in 1913. Fossey, D. (1975). Search for the Great Apes. National Geographic Movie. Friedman, L. (1975). The Legal System. New York: Russell Sage Foundation. Galdikas-Brindamour, B. (1975). Nat. Geogr. 148, 444. Goodall, J. (1968). Anim. Behav. Monogr. 1, 161. Goodall, J. (1974). Stanford University Lectures. Goodall, J. (1974-6). National Geographic Movies. Goodall, J. (1977). Folia Primatol. 28, 259-282. Grater, M. (1976). Die Bedeutung der Verhaltensforschung fiir die Rechtswissenschaft. In Schriftertreihe ZUT Rechtssoziologie und Rechtstatsachenforschung (E. E. Hirsch & M. Rehbinder, Eds). Berlin : Duncker & Humblot. Gruter, M. (1977). Florida State Univ. Law Rev. 5, 181. Tallahassee, Fla. Hamilton, W. D. (1964).J. theor. BioZ. 7(l), 1. Kurmner, H. (1971). Primate Societies, In Worlds of Man, Studies in Cultural Ecology (W. Goldschmidt, Ed.). Chicago-New York: Aldine-Atherton, Inc. Llewellyn, K. N. (1977). Recht, Rechtsleben und Gesellschaft. In Schriftenreihe zur Rechtssoziologie und Rechtstatsachenforschung (E. E. Hirsch & M. Rehbinder, Eds). Berlin: Duncker & Humblot. Malinowski, B. (1972). Crime and Custom in Savage Society. Totowa, N.J.: Littlefield, Adams & Co. Originally published in 1926. Moskowitz, B. A. (1978). Scient. Am. 239(S), 92. Patterson, F. G. (1977).J. Gorilla Foundation 1, 2. Patterson, F. G. (1978). The gestures of a gorilla: language acquisition in another pongid. In Brain and Language 5, 72-97. Stanford, CA: Academic Press, Inc.
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Origins of legal behavior Routtenberg, A. (1978). Scient. Am. 239, 154. Teleki, G. (1973). Scient. Am. 230, 33. Trivers, R. L. (1971). Q. Rev. Biol. 46, 35. Wilson, E. 0. (1975). Sociobiology: The New Synthesis. Cambridge, Press of Harvard University. Wilson, E. 0. (1977). Daedulus 2, 127. Wilson, E. 0. (1978). On Human Nature. Cambridge, Mass.: Harvard
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