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marct
04-29-2010, 11:25 AM
An excellent article just appeared at Stinkyjournalism.org entitled Rebutting Jared Diamond's Savage Portrait: What tribal societies can tell us about justice and liberty (http://www.stinkyjournalism.org/latest-journalism-news-updates-170.php). While it is part of a larger, ongoing, argument about Jared Diamond's New Yorker article (http://www.newyorker.com/reporting/2008/04/21/080421fa_fact_diamond), it has some very interesting lessons for understanding how tribal societies operate.


How do tribal communities in developing countries without functioning police, judges, law courts and prisons ensure social stability? This question is of perennial interest to anyone familiar with tribal societies. It is difficult for those of us familiar with such state institutions of law enforcement to imagine how people in tribal environments create order, particularly in dense populations like that of the New Guinea Highlands which also prizes individual political autonomy. The popular image – traceable to Renaissance times, when Europeans first encountered tribal peoples – is of savages condemned to disorderly, even anarchic lives of constant violence and frequent bloodletting.

MikeF
04-29-2010, 01:58 PM
Hi Marc,

Several years ago, Toby Dodge, a British historian who wrote extensively on Iraq and the failures of nation-building, tackled the issue of modernity and governance through the lens of Somalia describing how the tribes maintained law and order after state-failure through their accepted and traditional norms, values, and beliefs. While many are uncomfortable of this notion, primarily because it challenges the permanence of the Westphalian nation-state and the same areas lead to a breeding ground for al Qaeda's unconventional warfare campaign, I think there is some truth to his thesis that tends to support Paul Sillitoe & Mako John Kuwimb's rebuttal.

Sometimes, acephalous does not equate to anomie or anarchy.

Instead, sometimes, others (formerly savages) have a way of working things out that are simply foreign to the “civilized” world. Specifically, they have a better tolerance for levels of violence. It took me a long time to accept and fully understand this distinction. In Iraq, as the time passed when the tribes were working things out and the situation declined into a civil war, the world was very bloody, and I was struck at how inhuman my neighbors acted towards each other. Eventually, we intervened and forced arbitration.
As I reeled in the Sunnis, I was unsure of how to approach to force some acceptance that beheading their neighbors and stealing their land was unacceptable. I finally just shamed them by making them watch the actual video of the executions over and over pointing out how they stood cheering while their friends died. The elders cried over and over, but they remained stuck in inaction for some time to make amends.

I walked away from that deployment just shaking my head and conceding that there are some people that you just can’t help.

A year later, my friends (both US and Iraqis) wrote to me to tell me of the sustained peace that had come back to the valley. I was in disbelief. I thought they’d simply just keep killing each other, but then I was reminded of the conflict resolution negotiations we had conducted in my final days there. Sunnis and Shias, all neighbors, some interrelated, meeting for the first time since they had last been fighting. I did not know what to expect. When we walked into the building, they were all crying and hugging each other proclaiming how much they missed each other. I was befuddled. These were the same men, who three months prior, were literally trying to kill each other. In truth, I had to learn that this was normal for them. They were conditioned to periods of peace under controlled governance with periods of intense fighting breaking out with each regime change followed with conflict resolution and amends.

Conversely, I think sometimes we fail to grasp how modernity is viewed by the tribes. In the case of Sayyid Qutb,when attending school in Colorado, he did not see a land of freedom, self-reliance, and endowed with life, liberty, and the pursuit of happiness. He observed a promiscuous land with no values- a Devil’s playground.

I suppose it's all about how you look at the society. In some ways, to each their own, that is, until you decide to fly planes into someone else's playground :cool:.

v/r

Mike

Rex Brynen
04-29-2010, 05:48 PM
Conversely, I think sometimes we fail to grasp how modernity is viewed by the tribes. In the case of Sayyid Qutb,when attending school in Colorado, he did not see a land of freedom, self-reliance, and endowed with life, liberty, and the pursuit of happiness. He observed a promiscuous land with no values- a Devil’s playground.

We do have to be careful that we don't attribute everything in the broader Middle East to tribalism. Qutb came from a highly literate, middle class notable family in which (as for most Egyptians) the concept of "tribe" was the stuff of old stories, and not really relevant to their lives.

Extended family? Yes, perhaps. Tribe? Not at all.

Dayuhan
04-30-2010, 12:17 AM
The popular image – traceable to Renaissance times, when Europeans first encountered tribal peoples – is of savages condemned to disorderly, even anarchic lives of constant violence and frequent bloodletting.

That's one of the prevailing myths about tribal peoples. The other, which in many quarters has actually gained ascendancy, is what one might call the Avatar construct: the belief that tribal peoples are the keepers of some ancient lost wisdom, and are invariably living in perfect harmony with nature and with each other.

We could argue all day ove which myth is more absurd, but I doubt we'd ever resolve the question.

MikeF
04-30-2010, 01:13 AM
We do have to be careful that we don't attribute everything in the broader Middle East to tribalism. Qutb came from a highly literate, middle class notable family in which (as for most Egyptians) the concept of "tribe" was the stuff of old stories, and not really relevant to their lives.

Extended family? Yes, perhaps. Tribe? Not at all.

Good catch Rex, and I hope that the greater point of my post is not minimized by my generalization. So, I'll clarify that "we" to just "me." Qutb may not have been the best example, but I was still working on my first cup of coffee while absorbing all the text:D. In reality, I suppose that each man is of his own while influenced by his specific and individual culture, religion, family, and tribe; however, to that end, we, and that is for all of us, must and should not equate tribal to poor.

As one elder told me about his greater tribe, "Mike, we've had all the KBR contracts since Desert Storm One."

Schmedlap
04-30-2010, 01:57 AM
I wonder if the focus should be less on the mode of organization (tribe, clan, community, etc) and more on the means of dispute resolution and collective decisions. Law in the absence of state codes need not be the domain of just tribes and tribes need not only govern themselves according to custom.

MikeF
04-30-2010, 02:02 AM
I wonder if the focus should be less on the mode of organization (tribe, clan, community, etc) and more on the means of dispute resolution and collective decisions. Law in the absence of state codes need not be the domain of just tribes and tribes need not only govern themselves according to custom.

From my layman's perspective, that seems to be crux of the debate within international law. In other words, what do we do when our prescribed definitions fail to describe or define the situation? When the state fails, who is responsible or culpable for international transgressions? Who can intervene to mediate or arbitrate?

Schmedlap
04-30-2010, 09:00 AM
Hmmm. That's a little more big picture than what I was thinking about. My only issue was that the word "tribe" has become so nebulous as to mean what, in Afghanistan, qawn means. And "tribalism" seems to often be incorrectly associated with not just lawlessness, but also with a situation mutually exclusive to certain legal codes. Tribes can be governed by Sharia or by a set of codes imposed by a chief or warlord or by their customs. Large governments can function without a set of codes and rely instead on Sharia or custom.

But, on the issue of international law, I recently read that Abu Hanafi - the guy who inspired the type of Sharia preferred by Afghans - actually did a lot of thinking and writing about international law on the assumption that the Dar al-Islam would encompass many states/nations and there would need to be relations between them. Also, one of my professors recently pointed out to us that legal thinkers in eastern powers - like China - are chafing at the international order created by the Westphalian system and are attempting to lay an intellectional foundation for "East-phalian" concepts of international law. If we're going to start re-evaluating these norms, we might be wise to throw the Islamic concepts into the mix as well.

jmm99
05-01-2010, 03:12 AM
The response by stinkyjournalism.org to Jared Diamond's article (118 KB in pdf on disc) does not spare the horses, or in the article's context - the pigs (2748 KB on disc in its 10-part attack on Diamond - and, yes, I read all 10).

That output does not include Stinky's 21 Apr 2009 special report, Jared Diamond’s Factual Collapse: New Yorker Mag’s Papua New Guinea Revenge Tale Untrue, Tribal Members Angry, Want Justice (http://www.stinkyjournalism.org/latest-journalism-news-updates-149.php#) (492 KB in pdf on disc), which was essentially a press release on the $10 million lawsuit filed (via a summons (http://www.stinkyjournalism.org/misc/Mandingo_and_Wemp_vs_Advance_Publications_and_Jare d_Diamond.pdf)) on 20 Apr 2009 by Henep Isum Mandingo and Hup Daniel Wemp. The plaintiffs appeared "pro se", by themselves, no attorney of record. The two PNG citizens certainly cannot be termed primitive from the wording in the summons - "libel per se" and "inter alia" evince their background in Latin legalese. :D

Lack of attorneys was soon corrected. The latest substance I found via a quick search was this 8 Feb 2010 blog quote from Forbes, Papua New Guineans raise damages demand in libel suit to $45 million; "Preppie Murder" lawyer Jack Litman takes on case (http://wakeuppng.blogspot.com/2010/02/papua-new-guineans-raise-damages-demand.html).


On account of The New Yorker's portrayal of him, Daniel Wemp claims he is in hiding and fears for his life. A 30-page amended complaint filed Friday in New York State Supreme Court contends that a story in the magazine about tribal violence in Papua New Guinea generated such anger toward Wemp among his fellow tribesmen that he can't return to his highlands village or hold a job.
....
.... Filed by Wemp's new lawyer, Jack Litman, who represented Robert Chambers in the infamous "Preppie Murder" case, the amended complaint raises the demand for damages to some $45 million from an initial $10 million in the original suit filed in last April. [JMM Note: since Jack Litman died 23 Jan 2010, NYT obit (http://www.nytimes.com/2010/01/24/nyregion/24litman.html), after a long illness, his personal involvement seems questionable. The explanation is that the amended complaint (http://www.stinkyjournalism.org/misc/Amended_Complaint.91809.pdf) was dated 21 Sep 2009 and filed 16 Oct 2009 by Richard Asche, Litman's partner - as reported by Katie Rolnick, Stinkyjournalism.org, Jared Diamond, The New Yorker Deny All: New Guinea Tribesmen Wemp and Mandingo File Amended Libel Lawsuit (http://www.stinkyjournalism.org/editordetail.php?id=487)] ....
.....
The suit is based on a 40,000-word study on The New Yorker story by Rhonda Roland Shearer, director of the New York City-based Art Science Research Lab, which runs a media ethics project dubbed stinkyjournalism.org. ....

Perhaps I'm growing far too skeptical in my old age; but after placing the 10-part series in context (as I tend to view things as a lawyer), I felt I was reading a 10-part brief for the plaintiffs.

Regards

Mike

MikeF
05-01-2010, 12:33 PM
But, on the issue of international law, I recently read that Abu Hanafi - the guy who inspired the type of Sharia preferred by Afghans - actually did a lot of thinking and writing about international law on the assumption that the Dar al-Islam would encompass many states/nations and there would need to be relations between them. Also, one of my professors recently pointed out to us that legal thinkers in eastern powers - like China - are chafing at the international order created by the Westphalian system and are attempting to lay an intellectional foundation for "East-phalian" concepts of international law. If we're going to start re-evaluating these norms, we might be wise to throw the Islamic concepts into the mix as well.

Now that's interesting. Would this be considered political warfare?

tequila
05-01-2010, 02:38 PM
I was always under the impression that the PRC was all about the Westphalian system, which emphasized the sovereignty of states over their legally recognized territory and did not recognize the ability of other states to interfere in the sovereign territory of another state. Did your prof have any examples of the PRC's preference for another system, or what the outlines of this new system would be?

Schmedlap
05-01-2010, 09:29 PM
I was always under the impression that the PRC was all about the Westphalian system, which emphasized the sovereignty of states over their legally recognized territory and did not recognize the ability of other states to interfere in the sovereign territory of another state. Did your prof have any examples of the PRC's preference for another system, or what the outlines of this new system would be?

Just to be clear, he was pointing out arguments being developed by lawyers - not necessarily agents of the PRC who make policy decisions. Their views aren't a complete rejection of all current IL notions, so they're not arguing for a reinvention of IL. But, as to the outlines, most of the viewpoints were familiar ones. For example, they're not big fans of our conceptions of "human rights" because they view them as excuses that we use to interfere in the affairs of sovereign states. They also view the justifications for the delineation of borders a little differently - probably due to their interests regarding fuzzy borders around the Kashmir/India/A'Stan/Pakistan region.

Firn
05-02-2010, 06:19 AM
Just to be clear, he was pointing out arguments being developed by lawyers - not necessarily agents of the PRC who make policy decisions. Their views aren't a complete rejection of all current IL notions, so they're not arguing for a reinvention of IL. But, as to the outlines, most of the viewpoints were familiar ones. For example, they're not big fans of our conceptions of "human rights" because they view them as excuses that we use to interfere in the affairs of sovereign states. They also view the justifications for the delineation of borders a little differently - probably due to their interests regarding fuzzy borders around the Kashmir/India/A'Stan/Pakistan region.


Human rights are "basic rights and freedoms to which all humans are entitled."[1] Proponents of the concept usually assert that all humans are endowed with certain entitlements merely by reason of being human.[2] Human rights are thus conceived in a universalist and egalitarian fashion. Such entitlements can exist as shared norms of actual human moralities, as justified moral norms or natural rights supported by strong reasons, or as legal rights either at a national level or within international law.[3] However, there is no consensus as to precise nature of what in particular should or should not be regarded as a human right in any of the preceding senses, and the abstract concept of human rights has been a subject of intense philosophical debate and criticism.

It is very easy to see that this Western approach with universal scope conflicts with other juridical approaches, especially with systems which also claim universal validitiy because they are seen as derived from a divine entity, like Sharia.

Firn

marct
05-02-2010, 02:33 PM
Hi Mike,


Perhaps I'm growing far too skeptical in my old age; but after placing the 10-part series in context (as I tend to view things as a lawyer), I felt I was reading a 10-part brief for the plaintiffs.

Thanks for the brief :D.

On a more serious note, I have been underwhelmed by Diamond's stuff ever since I read Guns, Germs and Steel (http://www.amazon.com/Guns-Germs-Steel-Fates-Societies/dp/0393061310/ref=sr_1_1?ie=UTF8&s=books&qid=1272810545&sr=8-1). It reminded me of a lot of the geographical determinism of the 1860's, albeit written for a more popular audience. And, while the 10-part series may serve as a legal brief, there are also some excellent scholarly critiques of Diamond's assertions which, hopefully, will counteract some of his mesmeric qualities.

Honestly, the last thing we (social scientists) need right now is another deterministic position becoming generally accepted!

Cheers,

Marc

RhondaRShearer
05-02-2010, 03:25 PM
@JMM99, I am disappointed that you would accuse us at StinkyJournalism.org of unfairness and of publishing "press releases" without any evidence to support your opinion. I am also disappointed that you would chose to attack us and our fine research work instead of being outraged that innocent men and tribes are so easily and falsely accused of heinous crimes by a leading American scientist in a top intellectual magazine.
Our research was investigated by Science--see May 15, 2009 3-page news story and they found no errors in our research after their independent and thorough examination, that included exclusive interviews with Diamond and New Yorker which confirmed our claims.

NYer and Diamond admitted to Science and to StinkyJournalism before them that neither they or Diamond ever made one call to see if the crimes they were accusing real people of, were true. No calls were made to the accused or fact checking of government bodies and records done such as police or court records or even maps to make sure their geography is consistent with the story they present--it wasn't. (For example they said Handa and Ombal are part of Nipa, Southern Highlands Province, Papua New Guinea [who raped and killed Huli]--and was the location where the war took place. Any search of Google maps would expose this as wrong).

Would such careless disregard for the truth have been done by NYer or Diamond to white men of means in our legal system? I doubt it.

We are interested in the truth and have told it using numerous interviews of experts and local informants and through independently verifed facts in maps and govt documents as we stated in our methods section .

Diamond and NYer admitted to me and to Science and in court documents that they only talked to one source about the unpublished war and never called that source or any people named until after publishing that they committed violence and crimes as "fact".

It is important to note that Diamond and NYer never defend themselves by stating that what they published was true.

We at StinkyJournalism care about the truth, and will fight hard to communicate it to defend the powerless and help society --as is the duty of journalists.

Rhonda Roland Shearer
director, Art Science Research Laboratory
adjunct lecturer, School of Journalism and Mass Communication, University of Iowa

jmm99
05-02-2010, 06:44 PM
I could challenge your characterization of what I said (which was not very much since the post largely referenced your website and other sources). However, my dog is not in this fight, though your dog clearly is.

You stated your position well (in your 21 Apr 2009 article, "JARED DIAMOND’S FACTUAL COLLAPSE: New Yorker Mag’s Papua New Guinea Revenge Tale Untrue, Tribal Members Angry, Want Justice", following the 20 Apr filing of the plaintiffs' summons):


Let this case be a cautionary tale warning others around the world that such "academic" exploitation will no longer be tolerated and will be exposed by the international community, who will stand up along with the victims of such painful lies.

And indeed, your 10-part series does "stand up" alongside of the two plaintiffs. That is part of your right to publish, which I did not and do not attack.

I am interested in the issue of: to what extent (if any), this case may be affected by NYT-Sullivan 1964 and Time-Hill 1967 and their progeny - and by SCOTUS' grant of cert in Snyder-Phelps (see this post, Some background items (http://council.smallwarsjournal.com/showpost.php?p=95791&postcount=8)). While your case may be a "cautionary tale" to you, it could be considered a "chilling effect" by others.

It will be up to the judge to decide the pre-trial motions; and, if the case be tried, up to the jury to decide whether the plaintiffs should receive $45 million.

Regards

Mike

PS - Marc, beyond reading his two books (Guns and Collapse) and what I've read in the articles I cited in my post, I know nothing of Diamond. And, no, I'm not about to enter the lists to tourney out the merits and demerits of "Environmental determinism (http://en.wikipedia.org/wiki/Environmental_determinism), aka climatic determinism or geographical determinism". For me (a non-SME), that would indeed be tilting at windmills. :D Cheers from South of the Border (despite being well North of you).

marct
05-02-2010, 06:59 PM
Hey Mike,


PS - Marc, beyond reading his two books (Guns and Collapse) and what I've read in the articles I cited in my post, I know nothing of Diamond. And, no, I'm not about to enter the lists to tourney out the merits and demerits of "Environmental determinism (http://en.wikipedia.org/wiki/Environmental_determinism), aka climatic determinism or geographical determinism". For me (a non-SME), that would indeed be tilting at windmills. :D Cheers from South of the Border (despite being well North of you).

I didn't bother reading Collapse I must admit - of course, I did read Tainter's work on the subject and, from what I heard, Diamond just used his ideas. C'est la vie....

No worries on the determinism issue ;). Personally, I do like bringing it up every now and then since it seems to be a fallacy that we are all subject too every now and again (cf. governance deterministic insurgencies...).

Cheers from "sunny" (:rolleyes:) Ottawa!

Marc

jmm99
05-02-2010, 11:57 PM
the Canuck in sunny Ottawa, as opposed to Marc who is in sunny Africa. I know your mother was not a librarian, but I still think you have a library lurking in your ancestry. That is because you cause me to jump outside my own box and look at "foreign species". ;)

Anyway, as to "geographical determinism" and Tainter (and Diamond), I ran into a few references which seemed relevant (and since I am on another computer wanted to save for downloading later tonite):

On Social Collapse and Jared Diamond (http://mises.org/journals/scholar/bratland5.pdf).

An Austrian Reexamination of Recent Thoughts on the Rise and Collapse of Societies (http://mises.org/journals/jls/22_1/22_1_5.pdf).

Starkey, Chapter 1 The Theoretical Framework - Ecology, Economy and Society (http://www.uri.edu/artsci/ecn/starkey/ECN398%20-Ecology,%20Economy,%20Society/theory2006.pdf).

Collins, Understanding and Closing the Gaps (http://aist.cas.usf.edu/Collins_dissertation.pdf).

NOMADS, TRIBES, AND THE STATE IN THE ANCIENT NEAR EAST (http://oi.uchicago.edu/pdf/ois5.pdf).

It seems logical to me that the collapse or near-collapse of societies is a concern in Small Wars (i.e., those armed conflicts where at least one side is represented by irregular forces); especially to those of us who are interested in the "civil affairs" side of the equation (the "political struggle").

Regards

Mike

marct
05-03-2010, 12:01 PM
Hey Mike,


the Canuck in sunny Ottawa, as opposed to Marc who is in sunny Africa. I know your mother was not a librarian, but I still think you have a library lurking in your ancestry. That is because you cause me to jump outside my own box and look at "foreign species". ;)

LOL - I guess it is one of the advantages of being brought up in a musical household; some songs (http://www.youtube.com/watch?v=ONEYGU_7EqU) just stick in your memory :D.


Anyway, as to "geographical determinism" and Tainter (and Diamond), I ran into a few references which seemed relevant (and since I am on another computer wanted to save for downloading later tonite):

Thanks for the links, Mike. Not that I have time to read them right now - sigh. Hopefully in the next week or so.....


It seems logical to me that the collapse or near-collapse of societies is a concern in Small Wars (i.e., those armed conflicts where at least one side is represented by irregular forces); especially to those of us who are interested in the "civil affairs" side of the equation (the "political struggle").

Totally agree with that :D! There appear to be certain common patterns to collapses, especially rapid ones, that act as good indicators well before the collapse becomes generally apparent. Some of them are economic - e.g. increasing centralization of production ownership in a few hands, increasing disparity of wealth, higher after-tax percentage cost of a loaf of bread - while a lot are socio-cultural - e.g. excessive "professionalization" (i.e. certification and over-specialization), increasing substitution of theology (of any flavour, aka ideology) over observations of reality, increasing bureaucratization, etc. Usually, it's a fairly "simple" case of specializing too well in some socio-ecological niche that is either destroyed by that specialization or rendered irrelevant by some other change.

Cheers,

Marc

RhondaRShearer
05-03-2010, 01:42 PM
@JMM99 you wrote "Stinky's 21 Apr 2009 special report, Jared Diamond’s Factual Collapse: New Yorker Mag’s Papua New Guinea Revenge Tale Untrue, Tribal Members Angry, Want Justice (492 KB in pdf on disc), which was essentially a press release."

In fact, our report says very little about the lawsuit. And to say that our serious discovery and research was a "press release" no doubt ignores the importance of our discovery. Namely, that innocent men were charged and convicted in the court of public opinion by a powerful scientist and magazine of heinous crimes--without one ounce of verification before publication. This is an outrage to the freedoms the press has been given and I would think this would have some meaning to you?

Instead, our conclusion that this was injustice to innocent persons and wrong, and our call that such unethical behavior should not be tolerated by decent society is criticized by you.

As you know, there is a tradition in journalism of investigative reporting that leads to either enforcement or litigation as crimes or wrong behavior is revealed. A newspaper, or other media outlet, for example, then advocates for justice to be served. It is called "editorial content" and serving the public good, not a press release.

jmm99
05-03-2010, 04:00 PM
your 21 Apr 2009 article is all about the lawsuit.

I find it surprising that someone who is in journalism would object to a characterization of the article as a "press release". Are you contending that a "press release" is some lesser form of journalism and cannot contain "serious discovery and research" ?

On reflection, there is little point in my continuing any sort of discussion with you concerning this topic because it appears to me that, in this area, if someone is not for your position, you deem that someone to be against your position. In short, that someone is "either with us or against us" (sound familiar ?). Both of us have better things to do with our time.

Regards

Mike

Tukhachevskii
05-03-2010, 04:06 PM
We do have to be careful that we don't attribute everything in the broader Middle East to tribalism. Qutb came from a highly literate, middle class notable family in which (as for most Egyptians) the concept of "tribe" was the stuff of old stories, and not really relevant to their lives.

Extended family? Yes, perhaps. Tribe? Not at all.

In Yemen a lot of the "educated" people I met told me that they felt that there was a real tension or tug-of-war between the "liberating" aspects of the city with its emphasis on class association and the tribal aspects outside the city. Inside the city they didn't often want to mention it but the jambia (http://en.wikipedia.org/wiki/Jambiya) did give it away on the new arrivals who wore it and when "professionals" wore them to functions (usually prefering a neutral coloured one instead.

Schmedlap
05-03-2010, 05:04 PM
... innocent men were charged and convicted in the court of public opinion by a powerful scientist and magazine of heinous crimes--without one ounce of verification before publication.

Merely airing a view does not equate to a "conviction" in a real or imagined court, any more than arguing an issue of fact in a real court equates to receiving the judgment one seeks.

RhondaRShearer
05-03-2010, 06:33 PM
@JMM99, Your assumption about the timing is wrong. We held our report until the day after the lawsuit to make sure that the informants themselves had chosen to go public because of the potential dangers for them. Indeed, we were even accused of endangering our informants in an editorial in Anthropology Today. When we pointed to the dates--that the lawsuit was filed before we went public and therefore the informants themselves made that choice--they agreed to publicly apologize and make a corrections. (See NEWS, page 29, ANTHROPOLOGY TODAY Vol 26 No 2, April 2010).

Next, let's not play coy. To call a serious intellectual report, a "press release" is an insult. Yes, press releases are not journalism. They don't pretend to be investigative reports where the truth--with both good and bad news--is explored and fairly reported from multiple sides of an issue or an event and other journalism standards are maintained such as fact checking, protecting sources and acting for the public good. To publish a press release undisclosed as an independent report would be highly unethical and discrediting.

Your global point about my character -- "it appears to me that, in this area, if someone is not for your position, you deem that someone to be against your position"-- is a straw man. I was very specific about my criticism of your use of the words "press release" to describe our report and your selection to criticize us as suspect instead of Diamond and the New Yorker in light of the facts they admit.

@Schmedlap, insulting someone (publicly stating that their serious investigative report is a press release in disguise) is not "Merely airing a view."

jmm99
05-03-2010, 07:05 PM
the Supreme Court (NY's trial court) for New York County (aka Manhattan) has a docket entry system similar to PACER, but free - the docket card for INDEX NO.: 105519-2009 (http://iapps.courts.state.ny.us/iscroll/SQLData.jsp?IndexNo=105519-2009); PLAINTIFF: MANDINGO, HENEP ISUM; DEFENDANT: ADVANCE PUBLICATIONS, INC., has three pleadings of material interest:

Summons and Complaint 10/19/2009 (http://iapps.courts.state.ny.us/iscroll/C_PDF?CatID=537315&CID=105519-2009&FName=0) - by pls (also on the Stinkyjournalism site as previously posted)

Answer 10/15/2009 (http://iapps.courts.state.ny.us/iscroll/C_PDF?CatID=532981&CID=105519-2009&FName=0) - by defs.

Notice of Motion 11/30/2009 (http://iapps.courts.state.ny.us/iscroll/C_PDF?CatID=543745&CID=105519-2009&FName=1) - by defs (for Summary Judgment).

The Motion for SJ cites a number of pleadings that are not listed on the online docket card:


... affidavit of Jared Diamond, sworn to on November 20,2009, the affidavit of Thomas Summer, sworn to on November 18,2009, the affidavit of Pamela McCarthy, sworn to on November 20,2009, the affidavit of Peter Kovacs, sworn to on November 12,2009, and the affirmation of Carolyn K. Foley, dated November 23, 2009, and their accompanying exhibits, and upon the accompanying Memorandum of Law in Support of Defendants Advance Publications, Inc. and Jared Diamond’s Motion for Summary Judgment ...

The motion was noticed for February 8, 2010; adjourned to April 5, 2010; and adjourned to May 18, 2010 (docket entries (http://iapps.courts.state.ny.us/iscroll/MotionApp.jsp?IndexNo=01055192009&CID=001&APPF=-&XCID=1)). Deposition deadlines are set for Tuesday, May 29, 2012; so, this case has got a long way to go.

That's all, folks

Mike

RhondaRShearer
05-04-2010, 12:37 AM
I have read these affidavits listed above. They deal solely with procedural issues, such as statute of limitations for the magazine and DVD and whether or not the right party was sued. However, the interesting one is by Jared Diamond.

Instead of listing his research methods, arguing or providing evidence that what he wrote was true..Diamond writes: "I prepared the Article based in large part on information the plaintiff Daniel Wemp told me. At the time I prepared the Article and submitted it to The New Yorker, I believed it to be a true and accurate account of events as Daniel Wemp had told them to me."

That was it. No other evidence or arguement is offered. See link
http://www.stinkyjournalism.org/images/jared/Affidavit_of_Jared_Diamond.pdf

jmm99
05-04-2010, 01:39 AM
You correctly carved out the only material portion of Diamond's affidavit:


I prepared the Article based in large part on information the plaintiff Daniel Wemp told me. At the time I prepared the Article and submitted it to The New Yorker, I believed it to be a true and accurate account of events as Daniel Wemp had told them to me.

Odd affidavit in the context (it doesn't take on the amended complaint para by para). The obvious defense being asserted is "I was misled by Wemp"; so, therefore, an "absence of malice" (Paul Newman and Sally Fields (http://en.wikipedia.org/wiki/Absence_of_Malice) ;)).

IMO: I'd say (but I shouldn't read tea leaves) that there is nothing in this affidavit for a judge to bite on so far as summary judgment is concerned. For a defendant to prevail on summary judgment, no material issues of fact can exist and, on those uncontested facts, the defendant must be entitled to judgment as a matter of law.

IMO: The amended complaint (by Richard Asche, who has good creds) lays out the various article passages that Diamond (based on his affidavit) presumably will testify were told him by Wemp. The complaint alleges that Wemp did not say what the article claims he said. Hence, questions of fact exist as to what Wemp told Diamond (Diamond: he told me "A"; Wemp: I did not tell him "A"); and the case should go to the jury. However, since "Judge McCarthy" ain't hearing the motion, his opinion ain't worth spit.

The motions based on NY's 1 year statute of limitations are important, since if that statute was blown (late filing), the case can be tossed regardless of its merits. The SJ Motion mentions a defendants' Memorandum of Law filed. If you have a link to that, it would spell out the defendants' theories more clearly. And, if Asche has filed a responsive Memorandum of Law, a link to that would be most enlightening.

Regards

Mike

RhondaRShearer
05-04-2010, 03:15 AM
Hummm. Have to look. I was told the Memo was filed and public. I appreciate that you've read this stuff and offer "IMO" s. Thanks. One question:

Is this case like the Paul Newman movie in that malice is not the bar that must be met because the plaintiffs in his case are without doubt private, not public figures?

The hilarious part of the Diamond's affidavit statement is the tautology (the premise repeated in the conclusion) "He told me this, and at the time I wrote the article I believed what he told me."

This defense may cover the Daniel Wemp problem, that is if Diamond and not Wemp , is believed. However this does not cure the problem New Yorker and Diamond have with the other plaintiff, Henep Isum Mandingo who Diamond never spoke to.

The possible defense "Daniel told me that he killed..." does not also include, as far as I know, "Daniel told me that he and Isum killed ..." when no attempts to do any independent verification was done.

Another interesting point is there is no proof that Wemp said these things in 2001-2002, as the article dates his quotes, since there are no notes or tape recordings. The only notes Diamond took were from one meeting in May 2006.

Diamond had a white AU bird tour guide, David Bishop, with him at all times he was with Wemp, but Bishop says he does not remember anything of what Wemp said.

Wemp has a couple of witnesses (two indigenous men who were working for World Wildlife Fund in 2006, who were also Wemp's employer when he drove Diamond back in 2001-2002) from May 2006 who heard some of what Wemp said and back him up.

-Rhonda

jmm99
05-04-2010, 04:46 AM
asked Pilate - no answer is given in the canonical Gospel text. In the area of defamation, we may not have advanced much in 2000 years.

First off, absolute truth is an absolute defense regardless of the seriousness of the alleged defamation (consider Arlo Guthrie's lines in Alice's Restaurant when he admitted to littering ;)). However, that seems not likely in this case given your 10-part series, unless all of that is contradicted by contrary evidence. So, this case will likely be one where the article will be proven "untruth" - but that is not quite enough to win (IMO).

NYT-Sullivan covers the situation where the plaintiff is a "public figure" - that is something of a term of art. You're a public figure; so is Diamond. I'm probably not (except in a very limited community); and two little guys from PNG would not be (IMO). In any event, the test that public figures have to meet is that the publisher of the statement in question knew that the statement was false or was published in reckless disregard of its truth or falsity. Hustler-Falwell extended the NYT-Sullivan standard to public figures' claims that emotional distress was intentionally inflicted on them.

As to non-public figures, Gertz-Welch allowed states to establish their own standards of liability for defamatory statements, so long as they do not impose liability without fault. That is, the state may establish some form of negligence as the minimum test - e.g., lack of ordinary care in fact checking sources would be one possible test. But, if the state standard is lower than actual malice (the standard applying to public figures), then only actual damages may be awarded.

Since this case is within the territorial jurisdiction of the US, the 1st Amendment Constitutional standard applies. However, that still leaves the question of which jurisdiction's law covers the substantive libel standard - New York (where the decision to publish was probably made) or PNG (where the damages, if any, were sustained). So, there is a possible choice of law question involving international and comparative law. I have no idea of what current NY libel law is (hell of thing to be said by someone who still has an active NY license); nor that of PNG. That's why I was interested in the Memoranda of Law (esp. what Asche has to say).

If (which might be a big "if" if your witnesses hold up) the jury buys that Diamond was sold a bill of goods by Wemp, I think Wemp's case would be toast. That would be akin to my murdering my parents and claiming mercy on the basis that I am an orphan. But, Mandingo would still have a case - and a conflict of interest between Wemp and him. I can't see Asche even arguing that alternative. He will hammer away that Diamond fabricated a goodly part of the story - so, it will get down to whom the jury believes most.

Regards

Mike

Dayuhan
05-04-2010, 05:45 AM
He will hammer away that Diamond fabricated a goodly part of the story - so, it will get down to whom the jury believes most.

I wonder if Diamond's reputation will come into the picture, and if so how it will impact the proceedings. I was coincidentally discussing this case this morning with my seasonal neighbor, a Canadian anthropologist of some repute, and she thinks that while Diamond has sold a lot of books, his reputation in the trade is less than impressive, and that he has a long history of drawing sweeping conclusions from minimal evidence. She also thinks there will be no shortage of eminent individuals in the field willing to say exactly that.

Even if Diamond escapes without major liability, his reputation may take a fair hit... not the I'd mind, he has it coming IMO.

jmm99
05-04-2010, 06:14 AM
This type of case hinges on cred, pure and simple. And what kind of jury panel you end up with. I have no idea what the average NY County jury array (the large group from which the panel is selected) looks like today.

As I said, my dog is not in this hunt, so I have no incoming bias toward whether Diamond has anything coming or not.

One concern that this situation gives me is that our folks (fighting "small wars") may be relying on studies by other than Diamond that are also compromised to some extent. I'd not like to see good people dead because a story or study was cooked up by the author or informant for personal reasons.

How much think tank stuff is also dangerous junk ?

What's with these far-flung Canadian anthropologists - a worldwide cabal engineered by Tyrrell ? :D Actually, give my regards to your Canadian neighbor.

Cheers

Mike

Dayuhan
05-04-2010, 07:16 AM
I have no incoming bias toward whether Diamond has anything coming or not.

My bias is of the moderate sort... he seems to me an example of the common inverse relationship between ascending reputations and the declining level of rigor that seems to go into the work. Call it the Niall Ferguson syndrome :eek:. Not like I'm a crusader on the subject but I don't at all mind seeing someone called on it... and of course coming from a tribal environment I'm inclined to cheer a bit for the plaintiffs on this one!



One concern that this situation gives me is that our folks (fighting "small wars") may be relying on studies by other than Diamond that are also compromised to some extent. I'd not like to see good people dead because a story or study was cooked up by the author or informant for personal reasons.

How much think tank stuff is also dangerous junk ?

Judging from the stuff I've seen written on the conflicts I actually know something about, I'd say there's a fair bit of junk about, though also some good stuff. How dangerous it is usually depends on who's interpreting it, and how.



What's with these far-flung Canadian anthropologists - a worldwide cabal engineered by Tyrrell ? :D Actually, give my regards to your Canadian neighbor.


Wouldn't half surprise me if they know each other. Also wouldn't half surprise me if I had to duck for available cover to avoid the crossfire if they ever came face to face in my presence!

RhondaRShearer
05-04-2010, 09:18 AM
Here are the most recent documents RE the Diamond side of the case:
http://www.stinkyjournalism.org/misc/Memorandum-Part1.pdf
http://www.stinkyjournalism.org/misc/Memorandum-Part2.pdf
http://www.stinkyjournalism.org/misc/NOTICEOFMOTION-Part1.pdf
http://www.stinkyjournalism.org/misc/NOTICEOFMOTION-Part2.pdf
http://www.stinkyjournalism.org/misc/NOTICEOFMOTION-Part3.pdf

FYI Earlier in the thread someone mentioned that Egyptians don't identify themselves with tribes. Boy is that true. They don't even see themselves as Arabs but as Egyptians. Arabs are people from the desert or the Gulf in their view and parlance.

I have been in Egypt at least 30 times the past 10 years and am working on finishing a book on the true story of the crash of EgyptAir Flight 990, Oct 31 1999. If you recall its the fatal accident off the Atlantic coast of the US where the first officer was accused by NTSB of downing the plane while committing suicide.

BTW We have two more investigations that expose Diamond's errors (fabrications?) forthcoming soon. One involves his famed book Guns, Germs and Steel and the second one is about another indigenous Papua New Guinea tribesman who worked for Diamond and his tribe that Diamond accused in multiple publications of having conducted systematic "genocide" for revenge.

Finally, Mike and Steve, it's no mystery IMO what studies have credibility. There are signposts like transparency of method and providing clear sources and documentation. For example, we not only have photos of Isum walking around (that Diamond falsely reported was paralyzed in a wheelchair for 11 years, "cut" in his spine from Wemp's assassins' arrow), we also have hospital records and XRays that verify his medical history and the dates.

New Yorker's fact checking method, as they admit in multiple places, involved speaking to no witnesses or named indigenous people. The editor said "in this case we consulted a large number of experts in the various fields the material touches on.” In other words, no specific facts were checked... with the people in the article accused of crimes, police, govt agencies, NGOs, missionaries, maps, oil companies or the one expert who is widely known in the field on the specific area of Papua New Guinea, Paul Sillitoe, who even knows Wemp, Isum etc.

We checked with ALL of the aforementioned and have published much, but not all, of this information on StinkyJournalism.org.

RhondaRShearer
05-04-2010, 09:36 AM
Mike, you wrote: "What is truth?... asked Pilate - no answer is given in the canonical Gospel text. In the area of defamation, we may not have advanced much in 2000 years."

The only reason why I do investigations is because repeatable and knowable facts exist and they are beautiful and powerful. Such facts are truth in my view. At the very least, they are the closest thing on earth to the Platonic notion of truth.

marct
05-04-2010, 12:59 PM
Hi Folks,


I wonder if Diamond's reputation will come into the picture, and if so how it will impact the proceedings. I was coincidentally discussing this case this morning with my seasonal neighbor, a Canadian anthropologist of some repute, and she thinks that while Diamond has sold a lot of books, his reputation in the trade is less than impressive, and that he has a long history of drawing sweeping conclusions from minimal evidence. She also thinks there will be no shortage of eminent individuals in the field willing to say exactly that.


This type of case hinges on cred, pure and simple.

As I mentioned earlier, I have been underwhelmed by his work. There is, however, a problem with "credibility", which is that part of his reputation amongst many anthropologists is, partly, driven by - hmmm - "envy" maybe? Basically, he sells a lot of books and is a "public figure", which is going to have an impact on how we see him whether we like it or not.

As I said, I've read some of his stuff and a fair bit of the work it derives from (including some of the mid-19th century stuff), and I'm not impressed. Still and all, I expect that there may be some who would argue that anyone acting as a witness against him will be driven by, in part, by envy.


One concern that this situation gives me is that our folks (fighting "small wars") may be relying on studies by other than Diamond that are also compromised to some extent. I'd not like to see good people dead because a story or study was cooked up by the author or informant for personal reasons.

How much think tank stuff is also dangerous junk ?

It's been bothering me for years, Mike. Basically, I think that some useful guards against the junk factor include:


Use "levels of analysis" including broad patterns of action (structural), historical precursors for probabilities, and case specifics. Of these, only the latter can really be fact checked (the others are subject to large degrees of interpretation).
Never assume that anything you read is absolute "truth". It may, or may not, exist, but it is extremely unlikely (probability approaching 0) that it will ever be written or comprehensible.
Always assume that humans are contrary beasts who just love to destroy neat analytical categories ;)!

All of these, plus a few more, are the reason why I far prefer to ask questions that to give prescriptions.


What's with these far-flung Canadian anthropologists - a worldwide cabal engineered by Tyrrell ? :D Actually, give my regards to your Canadian neighbor.


Wouldn't half surprise me if they know each other. Also wouldn't half surprise me if I had to duck for available cover to avoid the crossfire if they ever came face to face in my presence!

LOL - quite possible :D! Say "hi" for me and see if she does know me.

Cheers,

Marc

Dayuhan
05-04-2010, 01:23 PM
"Truth" and "fact" may mean different things to a journalist, an academic, and a lawyer. Any way you slice them, they can be remarkably elusive. I've personally interviewed multiple eyewitnesses to events and come away with dramatically different versions from each one. I've talked to other eyewitnesses to events I've witnessed and realized that were radical differences between what they saw and what I saw. I've witnessed events at close range that were both widely reported and eminently reportable (occurring in a brief time in a confined and easily accessible location) and come away convinced that the accepted record of those events is in many ways wrong. Or possibly it's my memory or powers of observation that are astray, though I've no cause to doubt either.

None of that is meant to suggest that we should stop looking for truth and for facts, or that avoiding or circumventing obvious evidence or necessary procedures is acceptable. It just means that even when all the pieces seem in place and all the approved processes have been followed, a fair degree of skepticism is required.


New Yorker's fact checking method, as they admit in multiple places, involved speaking to no witnesses or named indigenous people. The editor said "in this case we consulted a large number of experts in the various fields the material touches on.” In other words, no specific facts were checked

This does not surprise me at all, and it's not uncommon. One of my favorite recent cases is the one discussed in this thread:

http://council.smallwarsjournal.com/showthread.php?t=2165

Again, prominent author, prominent publication, absolute load of bollocks. Of course if you didn't happen to know something about the subject, you wouldn't notice... which makes me wonder if that sort of standard is the norm. If they get it that far wrong when they write about things I know about, why should I trust them on things I know less about?


it's no mystery IMO what studies have credibility. There are signposts like transparency of method and providing clear sources and documentation.

True, though of course works like Diamond's hardly qualify as "studies" in any academic sense. Still one finds studies that appear to be credible, and on further examination they turn out to be far from it. All you can do is work from as many sources as possible, both journalistic and academic, spend as much time in the field as possible... and still retain the awareness that there are perspectives you haven't heard and parts of the story you haven't seen.

Makes it rough on people who are paid to come up with conclusions, but that's way it is...

William F. Owen
05-04-2010, 02:06 PM
"Truth" and "fact" may mean different things to a journalist, an academic, and a lawyer. Any way you slice them, they can be remarkably elusive.

Concur. The remit of modern media (print, internet and TV) is to make money. After that it is support a particular political view, by all and any means.
Truth is little or nothing to do with it, and utterly very subjective.

....but I am not objective. I've worked in "big media" and I live in Middle-East! :D

jmm99
05-04-2010, 04:36 PM
What Dayuhan and Wilf said. And, what I tell clients - the facts (truth) are what the judge or jury thinks they are. All I can do is present what I think are the facts (truth to my client and me). Also, I would bet that if all eyewitnesses to any incident are interviewed, there will be at least two different versions.

Now, I'll go along with this:


from RRS
The only reason why I do investigations is because repeatable and knowable facts exist and they are beautiful and powerful. Such facts are truth in my view. At the very least, they are the closest thing on earth to the Platonic notion of truth.

but subject to some other principles based on my beliefs concerning the reality in which we live: probabilistic (vs deterministic) outcomes; fuzzy logic and calculus (patterns that are not clear on the edges); chance, chaos and uncertainty principles drive events and what results from events; and some more that I could add with more thought.

Rhonda, I'll look at the legal memo and get back (possibly by PM cuz the focus of this thread should be on the Diamond article and your people's reports, not the law of the case).

Regards

Mike

marct
05-04-2010, 04:54 PM
Hey Mike,


Rhonda, I'll look at the legal memo and get back (possibly by PM cuz the focus of this thread should be on the Diamond article and your people's reports, not the law of the case).

Oh, I think that your responses are on point ;)! More clearly stated, the entire legal case surrounds issues of epistemology and ethics in the publication and use "narratives". I would say that that is very much to the broader point, which is what can we learn from tribal societies and, by implication, how do we learn it.

Cheers,

Marc

RhondaRShearer
05-04-2010, 05:48 PM
Even in the famed movie Rashomon (http://www.imdb.com/title/tt0042876/plotsummary) where 4 defendants all had different viewpoints about a woman's murder in Japan--they all shared one fact. One woman's dead body. That is a verifiable fact. Facts do exist.

Prediction of certain facts are possible too. Step front and center in front of van moving 60mph and that will be another fact .

In my research I focus on such facts--hence why I first looked to find Isum in the remote bush as Diamond said he was paralyzed from a "cut" spine and in a wheelchair for 11 years (an implausible claim IMO). He wasn't. We knew hospital records would give a more complete verification-- which we then obtained.

The way witness statements are collected and who the witnesses are also makes a difference. For example if the supposed victims of "genocide" tell you such a claim is untrue, along with the supposed perpetrators, it's rather persuasive especially when everyone's story lines are basically the same.

In Papua New Guinea, accurate tribal history telling--especially about conflicts--is important. In the Wola area of the Southern Highlands Papua New Guinea such histories equal agreements consisting of what happened and who did what to who. Deviations from such agreed upon histories are easily viewed as attacks or betrayals of peace agreements.

Likely because of this, both sides of the 2 Kina fight and the neutral parties all had remarkably similar tellings of the conflict of 1993.

It was also striking that the Handas would simply acknowledge fault and say flat out with no guile (and without the excuses, hemming and hawing that would invariably occur here) that our guy started the fight and the trouble! I asked anthropologists who work in PNG and they are not surprised by this at all.

With that said, our informants testimonies were able to be cross referenced between memories and documents. If someone said "we remember the fight started when so and so child was born" --we would find the birth record of the child to check and see if it agreed.

jmm99
05-04-2010, 06:02 PM
Looks like 150+ pages to look through - it might be interesting. :D

My concerns (besides the accuracy via "fact checking" of more formal documents used by our troops - e.g., RAND monographs, etc.) also were with (what I suspect) might be a much less formal process used in the field in non-secure areas - as to which, MikeF and Schmelap have had more recent experience. What do they (if they are still reading this) suggest re: "fact checking" of folks who give them narratives and of those folks' informants ?

Regards

Mike

RhondaRShearer
05-04-2010, 06:08 PM
This does not surprise me at all, and it's not uncommon. One of my favorite recent cases is the one discussed in this thread: http://council.smallwarsjournal.com/showthread.php?t=2165


Thanks for posting this link. Very interesting!

-Rhonda

RhondaRShearer
05-04-2010, 06:10 PM
Rhonda, I'll look at the legal memo and get back (possibly by PM cuz the focus of this thread should be on the Diamond article and your people's reports, not the law of the case).

Thank you, Mike.

-Rhonda

Dayuhan
05-05-2010, 08:09 AM
Facts do exist.

Yes, they do, and some can be adequately verified, just as some others may always be in doubt. It's rare, though, that we can assemble facts into a coherent narrative without treading in more subjective territory. Opportunities for distortion abound. Sometimes it's intentional: direct self-interest, an ideological agenda, a reporter or editor's desire for a salable story. It may be less intentional: an ideological, sentimental, or culturally driven predisposition to perceive facts and connections in certain ways. Distortion may be pure accident at times.

It's also entirely possible (and common) to assemble a grotesquely distorted narrative from impeccably verified facts, something generally accomplished by cherrypicking facts and pulling them out of context. That works particularly well in video presentations, where shots can be slammed together in MTV-style edits culminating in a breathless announcement that everything you've seen is absolute verified fact. Guess we could call that the Michael Moore syndrome.

You're a journalist, Mike's a lawyer, Marc's an anthropologist, I'm just a guy who's done this and that here and there and come away with a perhaps excessively cynical view of certainty. We all have our own ideas about what constitutes fact or truth, and of course as Mike points out you're in the issue and the rest of us are curious onlookers. All of that has an impact on the way we perceive and discuss. Not all bad to have an injection of idealism, though, not the most common commodity around here :D

William F. Owen
05-05-2010, 01:23 PM
I have been in Egypt at least 30 times the past 10 years and am working on finishing a book on the true story of the crash of EgyptAir Flight 990, Oct 31 1999. If you recall its the fatal accident off the Atlantic coast of the US where the first officer was accused by NTSB of downing the plane while committing suicide.
Did the report explicitly say suicide, or just the actions were cause by his handling of the aircraft?

Facts do exist.
Well according to many Egyptians, it is a fact, that the British Royal Family murdered Princess Diana. Evidence and proof are not concepts universally accepted.

Prediction of certain facts are possible too. Step front and center in front of van moving 60mph and that will be another fact
Only because you can demonstrate it and repeat it, and even then the outcome is not a certainty.

RhondaRShearer
05-05-2010, 02:45 PM
@William F. Owen,
You write, "Did the report explicitly say suicide, or just the actions were cause by his handling of the aircraft?"

NTSB made an embarrassing error and quickly announced to the press that it was suicide after a bad translation of the cockpit voice recording (CVR). After retracting this mistake, the NTSB tried their best--and failed--during the entire investigation to prove it was true.

They ended up in the final report to state that (I paraphrase) that it was the copilot's inputs into the first officer's column that by intent or accident caused the crash.

This statement has the false appearance of objectively and rigor. One assumes that the flight data recording measured these inputs and that their statement is objective and factual --not an opinion. However, even industry experts often fail to know that in this particular model of the Boeing 767 does not include recording data from the columns! NTSB has no idea what inputs were made that fatal day. It is pure speculation.

Besides all this is moot. Boeing's insurers recently settled and made pay-outs to Egyptian crew members and passengers of the doomed EA 990 flight. Needless to say perhaps but Boeing and insurers don't want the true story to come out that the plane's bell crank bolts in the tail went into failure causing the split in the flaps (one side up the other down), not a manual struggle where one pilot fought to pull up while the co-pilot was fighting to push down. I heard the cockpit voice recording (CVR) firsthand. There was no fight.

This is about Boeing sales and stock prices and maintaining American financial interests IMO. It is so much cheaper and easier to blame the pilot --especially if they are Muslim.

Regarding Facts. Yes some people here and in Egypt, do cite "facts" when what they have cited are, in fact, opinions. This is a common confusion and error.

You also write a response to my statement -"Prediction of certain facts are possible too. Step front and center in front of van moving 60mph and that will be another fact." You state: "Only because you can demonstrate it and repeat it, and even then the outcome is not a certainty."

I carefully worded my statement --"front and center" of van moving at 60 mph. The details may not be a certainty but stepping front and center of a van moving 60 miles a hour would be no doubt prove fatal in every trial. The laws of physics that are predictable and measurable in this Newtonian example. Bone, tissue and organs can only take so much force before damage. There are "rupture stress" numbers for all sorts of tissue types and materials where one can accurately calculate and predict with scientific certainly at what speed certain tissue/materiel will get damaged.

If facts were so unreliable and unpredictable as you and others may be suggesting here, science and technology as we know it would be impossible.

Ken White
05-05-2010, 02:57 PM
If facts were so unreliable and unpredictable as you and others may be suggesting here, science and technology as we know it would be impossible.but can be manipulated and seen or interpreted differently by various observers, usually perspective dependent.

People, OTOH, are pretty much unreliable and unpredictable...

Steve Blair
05-05-2010, 03:00 PM
Everything is subject to human interpretation, and thus human manipulation and error. Anyone who studies history at a deeper level than the last History Channel special soon begins to understand and appreciate this.

marct
05-05-2010, 03:13 PM
Hi Rhonda,


If facts were so unreliable and unpredictable as you and others may be suggesting here, science and technology as we know it would be impossible.

Just a couple of quick notes on this point.

First, Newtonian (and most other "natural laws") are based on a Baconian understanding of science, i.e. a probabilistic stance. All this means is that the results are not 100% certain, although they may be 99.99999% based on previous observations. The reliability of a process is the latter number.

Second, "facts" should be distinguished between observations and processes. Individual observations may be categorized using a crisp set typology - "Did it (the event) happen? Yes / No" - while processes require a more subtle question - "Did it (the process as we predicted) happen in this case? Yes / No / Maybe".

Third, the English word "fact" comes from the Latin "factum"; "made" or "constructed". "Facts" are constructed by our consciousness by a process of abstraction of sensory input from objective reality and always include a component of limited understanding. As our understanding, our models of objective reality and the languages (including mathematics) that we use to describe these models alter, so does their predictive validity. You mentioned Newtonian Laws; well, don't forget that they start to break down at ~.3C.

Fourth, "facts", in the sense of individual observations, can and should be used to establish both plausibilities and probabilities (they tend to be asserted in some other systems). It all depends on which logical system(s) a science is using in any particular case, and there are often problems with confusing systems of logic, what "facts" should be associated with each, and how those "facts" may/can/should be used.

This may sound like I'm picking on you, but there are some pretty serious, real world implications. For example, if we assume a (nomonological-)deductive logic system that states, as a fact, that insurgencies arise from poor governance, then counter-insurgency operations will focus their efforts on building governance structures. If we assume an inductive (probabilistic) logical system that states that governance is a factor in insurgencies, then the emphasis will be different. BTW, I chose this example in particular because it related back to the article I linked from your site initially.

Cheers,

Marc

jmm99
05-05-2010, 05:07 PM
by mentioning "good governance". We'll soon be joined by COL Bob Jones who will explain his theories of "good governance" in terms of "a (nomonological-)deductive logic system", and in terms of "an inductive (probabilistic) logical system", to boot. At which point, this country lawyer will really be lost in the fog of words. :D

Some points in this discussion exemplify the problem of expressing "facts" in words. I thought Rhonda was doing pretty well with her 60 mph van until this:


from RRS
The details may not be a certainty but stepping front and center of a van moving 60 miles a hour would be no doubt prove fatal in every trial.

The problem is with "every". People have survived direct hits from motor vehicles traveling 60 mph or more; just as people have survived free falls from thousands of feet. Those are admittedly outliers, but they do exist. So, "almost every" is more precise wording in that particular case.

Now, excuse me while I go and look up "nomonological-deduction". ;)

Regards

Mike

marct
05-05-2010, 05:13 PM
Hey Mike,


by mentioning "good governance". We'll soon be joined by COL Bob Jones who will explain his theories of "good governance" in terms of "a (nomonological-)deductive logic system", and in terms of "an inductive (probabilistic) logical system", to boot. At which point, this country lawyer will really be lost in the fog of words. :D

LOL - okay, okay!


Some points in this discussion exemplify the problem of expressing "facts" in words. I thought Rhonda was doing pretty well with her 60 mph van until this:

....

The problem is with "every". People have survived direct hits from motor vehicles traveling 60 mph or more; just as people have survived free falls from thousands of feet. Those are admittedly outliers, but they do exist. So, "almost every" is more precise wording in that particular case.

Yup, that's it exactly. "Outliers" is a nice synonym for those nasty facts that disprove ones "perfect" theory, since they both lie outside of what is predicted and, therefore, are liars (to quote an old sociology prof of mine)


Now, excuse me while I go and look up "nomonological-deduction". ;)

http://wapedia.mobi/en/Deductive-nomological_model (I use the older version of the name ;)).

MikeF
05-05-2010, 05:19 PM
As y'all hash out truth, justice, liberty,good governance and bad, y'all may want to take a moment and listen (http://www.colbertnation.com/the-colbert-report-videos/308089/april-28-2010/difference-makers---robert-ekas) to Stephen Colbert's Difference Maker Robert Eckas.


Robert Ekas ensures the freedom of American society by giving the middle finger to every police officer he sees.

v/r

Mike

Dayuhan
05-05-2010, 11:05 PM
Everything is subject to human interpretation, and thus human manipulation and error.

True, and I think in this age of the conspiracy theory we often underestimate the impact of error. Personally, given a choice between conspiracy and ####up I'll default to ####up almost every time, unless the evidence to the contrary is overwhelming. What's the rule... never attribute to malice that which can be adequately explained by stupidity?

That rule has some relevance to the case Rhonda was discussing earlier. It is to me at least superficially plausible that NTSB could make a premature announcement based on a faulty translation and then try to cover their ass. The contention that


This is about Boeing sales and stock prices and maintaining American financial interests


is a bit harder to sustain, for the following reasons:

1. High probability of exposure. The number of people involved in these investigations is enormous, and too many people would have to know that the game was being fixed. Very hard to keep a secret at that level.

2. Extremely high penalty for exposure. If NTSB were caught covering up a mechanical failure on behalf of Boeing the consequences for both the agency and the company would far exceed the consequences of simply admitting mechanical failure.

3. Low necessity. Looking at previous examples where the company was clearly at fault (eg Japan Airlines flight 123) there's nothing to suggest that the impact of a single crash due to mechanical failure would be catastrophic to BA sales or share price.

Any company in that industry has a procedure for dealing with crashes, and the normal attitude is to eat it and move on. Unless there was something really extraordinarily damning about this case it's hard to see why a coverup would be necessary.

Or possibly I am ideologically predisposed (assuming that the investigation was compromised, which I don't know to be the case) to think a bureaucratic ####up and a scramble to cover is a more likely scenario than an organized conspiracy to protect a company... or perhaps Rhonda has the opposite predisposition, or both. Even where data are consistent and unquestioned, the narratives we frame from data will invariably reflect our experience and prejudices.

William F. Owen
05-06-2010, 05:01 AM
Needless to say perhaps but Boeing and insurers don't want the true story to come out that the plane's bell crank bolts in the tail went into failure causing the split in the flaps (one side up the other down), not a manual struggle where one pilot fought to pull up while the co-pilot was fighting to push down.
Interesting.
Do you mean elevators and not flaps? If a control run fails, elevators normally reverts to neutral, and they would really have to have jammed very hard to remain displaced, once the dive began.
What about the auto-pilot disconnect? If that was a trip out, why didn't the Co-pilot just engage it again. Are you saying the failure caused the disconnect?
...and pulling back on the throttles?

slapout9
05-06-2010, 11:46 PM
Interesting stuff hear.......anybody ever looked at Thorstein Veblen? and his Anthropology based Economic Theory?

marct
05-07-2010, 01:32 AM
Hey Slap,


Interesting stuff hear.......anybody ever looked at Thorstein Veblen? and his Anthropology based Economic Theory?

Theory of the Leisure class (http://books.google.com/books?id=ErEXMCudMZ4C&printsec=frontcover&dq=%22theory+of+the+leisure+class&source=bl&ots=fl0SrSiXIn&sig=HlHinCdNZiP6Y9oo9YL4QNOGRCI&hl=en&ei=Om3jS_HCO4K0lQf6weH7AQ&sa=X&oi=book_result&ct=result&resnum=2&ved=0CCQQ6AEwAQ#v=onepage&q&f=false) stuff? Yup. Actually, economics and Anthropology have a lot of crosses over the past 100 or so years (and I had to read too much of it! :eek:).

M-A Lagrange
05-11-2010, 09:01 AM
Hello the Mikes, Slap, Marc and all others

I do believe that leisure and the search for the easiest and less costly (Time, energy, money, danger…) solution is THE KEY for any human activities.
This is the base of development of “stuff” as internet: the best and easiest and smoothest way to discuss with people on the other side of the world.

Joke apart, the leisure theory as such is too “raw” and not enough explicative to look at people’s choices. This being said; this is, from my personal point of view, the best way to look at “traditional societies”.

To come back to traditional societies and justice, I would recommend giving a look on the British Army stabilization handbook (post by Wilf few months ago in SWJ). Their analyses of traditional societies judicial system participation to Sierra Leone civil war is extremely interesting. It is one of the rare document from DFID or USAID or Eu I read pointing out the bad points of the “traditional societies myth” in stabilization operations.

slapout9
05-11-2010, 05:36 PM
Hi MA, to this day I don't think anybody has figured out what to call Veblen, he is neither a pure economists or anthropologist, he was one of the first people to look at an economy as a society as opposed to a simple economic production unit, much to his credit IMO.

jmm99
05-11-2010, 05:59 PM
As to this:


from MA Lagrange
To come back to traditional societies and justice, I would recommend giving a look on the British Army stabilization handbook (post by Wilf few months ago in SWJ). Their analyses of traditional societies judicial system participation to Sierra Leone civil war is extremely interesting. It is one of the rare document from DFID or USAID or Eu I read pointing out the bad points of the “traditional societies myth” in stabilization operations.

a couple of questions: (1) a link or at least a title for what Wilf posted (he posts a lot :)); and (2) what do you mean by the “traditional societies myth” ?

Finally, how do you as a field practitioner (as opposed to being a member of the Parisian academy ;)) separate the true from the false, the accurate from the inaccurate, etc., generated by indigenous narrators and informants; thereby avoiding the "Diamond Trap".

Regards (colonialment)

Mike

MikeF
05-11-2010, 06:10 PM
As to this:

Finally, how do you as a field practitioner (as opposed to being a member of the Parisian academy ;)) separate the true from the false, the accurate from the inaccurate, etc., generated by indigenous narrators and informants; thereby avoiding the "Diamond Trap".

Regards (colonialment)

Mike

Hi Mike. First a dumb question. Is a barsroom a bar? Lol. I've started the conversation on one component of breaking down the facts and truth in this thread (http://council.smallwarsjournal.com/showthread.php?t=10340) on aerial reconnaissance. Additionally, I remembered something that my dad taught me.


Military doctrine defines an aerial reconnaissance as denoting a preliminary survey conducted to gain or collect information. This technique is not solely owned by the military, and I learned of its advantage early on in my youth. My father is a commercial developer. We moved towards new areas of prospective growth. In 1985, during first grade, we moved from Charlotte to Cary in his pursuit of the American Dream. He would rent helicopters to survey potential properties prior to purchase. In his office, I would stare at the overhead images taken during the flight and ask him why he took them.

“Michael, you have to be able to see the land and visualize its use. If I’m going to build a medical park there, then I need to gain a snapshot of its proximity to the city, to the schools, and to the neighborhoods. Additionally, I must try to imagine where the future growth will go. If I don’t look at it from every possible angle, then I could build in the wrong place.”


One key difference to remember with the practisioners is the motive- military, entrepeneur, and anthropologist. One is trying to execute and enforce policy, one strives towards profit, and the final is supposed to observed and analyze.

jmm99
05-11-2010, 07:55 PM
As to Barsoom (ain't no second "r" in it), I can be half-assed intelligent about it, having spent the weekend reading a book on myths in American pulp fiction and films (http://www.amazon.com/dp/0806130318/?tag=bookdigger-20) - where Barsoom (http://en.wikipedia.org/wiki/Barsoom) gets a few pages.

Since you attended and excelled at That Place on the Hudson, you probably were more acquainted with Edgar Rice Burroughs' other creation, Tarzan - and when you escaped from the jungle, with whatever bar was nearest the gate. :)

Given Lagrange's attraction to exotic places, Barsoom may have an entirely different meaning than the one I am positing.

My last question was how does the field practitioner (whatever is being practiced) keep from being conned, flamboozled, etc., when a transient in Barsoom.

Regards

Mike

marct
05-11-2010, 08:13 PM
Hi Mike (et alii),


a couple of questions: (1) a link or at least a title for what Wilf posted (he posts a lot :)); and (2) what do you mean by the “traditional societies myth” ?

On 1, I smurfed a bit and couldn't find it either.

I'm not sure what, exactly, MA means by the "traditional societies myth" but, if I had to guess, I would assume that it refer to the "invention" of primitive society (http://www.amazon.com/Invention-Primitive-Society-Transformations-Illusion/dp/0415009030/ref=sr_1_1?ie=UTF8&s=books&qid=1273608552&sr=8-1) that Adam Kuper talks about. There are certainly variants of it that myth that have been popularized extensively in the West, especially of the Shamanic and Eco"friendly" varieties.

Cheers,

Marc

marct
05-11-2010, 08:14 PM
My last question was how does the field practitioner (whatever is being practiced) keep from being conned, flamboozled, etc., when a transient in Barsoom.

Well, as a "classical" anthropologist, i would fall back on tried and true methods - find a Dejah Thoris :D.

MikeF
05-11-2010, 08:15 PM
My last question was how does the field practitioner (whatever is being practiced) keep from being conned, flamboozled, etc., when a transient in Barsoom.

Regards

Mike

And that my dearest friend, is the deepest of questions, a crazy game of poker (http://www.youtube.com/watch?v=YquWRpoKsPE) if you will. I'm going to attempt to explore it soon. As I have no definitive answers as there are none, I will attempt to provide guidance for those that wish to enter into the game :eek:.

How do you maneuver and shake in a competing environment when the truth is all so elusive and others have their own desires?

Who's up for game 3? I so enjoy these games :).

Kiwigrunt
05-11-2010, 09:16 PM
How do you maneuver and shake in a competing environment when the truth is all so elusive and others have their own desires?



That'll work it's way to my quote-list.:)

MikeF
05-11-2010, 09:58 PM
That'll work it's way to my quote-list.:)

and that gives me encouragement as I have to relive it as I write.

Cheers,

Mike

Dayuhan
05-12-2010, 12:31 AM
How do you maneuver and shake in a competing environment when the truth is all so elusive and others have their own desires?


If you've accepted that truth is elusive and others have their own desires you've already taken a huge step in the right direction. Too many of us arrive in Barsoom (or wherever) with the assumption that truth is self-evident, What We Want is so clearly virtuous that everyone else must certainly want it too, and anyone who tells us what we want to hear "gets it" and should be trusted. This is not a combination that favors the attainment of objectives.


There are certainly variants of it that myth that have been popularized extensively in the West, especially of the Shamanic and Eco"friendly" varieties.

Not so long ago we had an addled Teuton wandering around these parts looking for shamans and getting terribly frustrated that nobody knew what the word meant. Just before his disgruntled departure he was heard to pronounce that the religious intermediaries of the local tribes weren't "real shamans" because they don't use hallucinogens. Amazing that the whole Carlos Castaneda thing still holds up. I guess it will as long as folks want to claim that they're getting stoned in pursuit of a higher purpose, which is to say forever.

MikeF
05-12-2010, 12:54 AM
If you've accepted that truth is elusive and others have their own desires you've already taken a huge step in the right direction. Too many of us arrive in Barsoom (or wherever) with the assumption that truth is self-evident, What We Want is so clearly virtuous that everyone else must certainly want it too, and anyone who tells us what we want to hear "gets it" and should be trusted. This is not a combination that favors the attainment of objectives.

That needs to be repeated again and again...


Too many of us arrive in Barsoom (or wherever) with the assumption that truth is self-evident, What We Want is so clearly virtuous that everyone else must certainly want it too, and anyone who tells us what we want to hear "gets it" and should be trusted. This is not a combination that favors the attainment of objectives

we start with all things are self-evident...

Ken White
05-12-2010, 01:51 AM
barroom... :D

MikeF
05-12-2010, 05:06 AM
If you've accepted that truth is elusive and others have their own desires you've already taken a huge step in the right direction. Too many of us arrive in Barsoom (or wherever) with the assumption that truth is self-evident, What We Want is so clearly virtuous that everyone else must certainly want it too, and anyone who tells us what we want to hear "gets it" and should be trusted. This is not a combination that favors the attainment of objectives.



Not so long ago we had an addled Teuton wandering around these parts looking for shamans and getting terribly frustrated that nobody knew what the word meant. Just before his disgruntled departure he was heard to pronounce that the religious intermediaries of the local tribes weren't "real shamans" because they don't use hallucinogens. Amazing that the whole Carlos Castaneda thing still holds up. I guess it will as long as folks want to claim that they're getting stoned in pursuit of a higher purpose, which is to say forever.

As Dale Carnegie reminds us,


When dealing with people, let us remember we are not dealing with creatures of logic. We are dealing with creatures of emotion, creatures bristling with prejudices and motivated by pride and vanity.

Steve Blair
05-12-2010, 01:34 PM
As Dale Carnegie reminds us,
When dealing with people, let us remember we are not dealing with creatures of logic. We are dealing with creatures of emotion, creatures bristling with prejudices and motivated by pride and vanity.

Excellent point, Mike. At times I fear we study science and math too much, and ignore the human dimension of every endeavor. Must be my inner history geek coming out again.....

M-A Lagrange
05-13-2010, 08:35 AM
While the discussion goes on, I wil try to respond to some ofthe questions my last post raised while I read the rest.

To respond to JMM first question: Wilf’s post I am referring to is on the JDP 3-40 from British Army posted in November 2009, pages 4-29 or 130 on my pdf version.

Secondly, the “traditional societies myth”
Being less a scholar than Marc and mainly a practitioner, I did not refer to the ‘bon sauvage’ (Rousseau) or Adam Kuper (Have to dig that one out cause this rings bell in my mind but could not point out what) but to the myth/assumption that traditional societies are the solution in stabilization ops for justice.
The doc I am referring to (JDT 3-40) states, as all of them, that in post conflict context, to restore/build peace, external forces/powers have to rely on traditional societies, especially for justice implementation at very low/grass root level. This based on the fact that traditional authorities are a form of power which is accepted and respected by all and therefore represents an alternative to modern justice (under construction at that point of time in the given context).
The UK document points out the fact that traditional chiefs had an active role in fuelling the conflict in Sierra Leone by having a partial and discriminative implementation of justice during the conflict. Therefore traditional justice as modern justice replacement/coping mechanism in immediate post conflict operation has been a failure. That because population did not trust traditional authorities anymore.
In addition, I did witness similar failure of traditional societies in Liberia. In Liberia, tradition wants that wars is a social/power elevator. So all exfighters (young men and women) coming back to their villages were considering they should be given social respect and authority according to tradition. But due to the exactions done during the war, communities refused to comply with tradition and refused to reintegrate the youth. But due to their involvement during the war and the fear from them inside communities, justice (modern or traditional) was not implemented.
This just as example to show that traditional societies are not frozen and do change according to communities history.
The myth I am fighting against is that idea that traditional societies are the solution because they are ‘traditional’ meaning untouched and pure compare to the modern societies which bring conflicts. Traditional societies, especially concerning justice, are facing the same problems than “modern societies”. Justice and its implementation are subject to local and personal interests. Traditional laws and judicial mechanisms are as complex as modern ones. It is not because a mechanism is “traditional” that it is the same as the one identifies in a “dreamed golden age” of each and every societies we are dealing with/observing.

Justice implementation stays a power tool what ever a society is modern or traditional and stays an evolving complex legal tool and not Justice. The spirit of the law does apply to traditional societies but the policy baseline (democratic, autocratic regime…) might not be the same while the roots (preserving group interests and by extend individuals in power interests) stay the same. (I am not sure I am very clear here).

Now, to come to the question of how to make the difference in the field… Good question. This requires knowledge of the context (Historical, anthropological/ethnographic, political… in UN language it is called a holistic approach), presence in the field (nothing will replace direct proxy contacts) and a good part of luck/nose/stomach/guts feeling.
I do not have any magic formula on this. My personal approach is to play/be the red team as much as I can against main international opinions. And to keep in mind that local population is looking for the same thing than me: an easy life in a nice and cool social and economical environment (well on paper in my personal case). Plus a good doze of political paranoia.
In practice, I never trust what local politician and authorities are telling me; doubt of what the men are telling me and rely a lot on what women are telling me. A good example is a survey I conducted in Bas Congo (DRC) among Angolan refugees in 2007. While men and local chief were telling me that nothing was in place they were abandoned and received nothing from no one… My colleague (a woman) who conducted the same assessment than me but focused only on women came out with a totally different picture: people received aid, land, educational trainings… But most of it was not working because of internal political problems inside the community. (Which I had identified also though focus groups with men but on different issues).
From that point, we were able to rebuild all the history of the community in the past 10 years and match international organization, local authorities, men and women statements. And then come with a comprehensive picture of the actual situation.
Entropy or emotional connection with the community you work on is needed also. You have to be able to read behind the lines in the answers people are giving. To continue with my example, the ones in real needs were individuals who were so much psychologically affected that they said they had no needs, everything were fine. While the one who were well integrated were the ones who said they were missing everything.
Unfortunately for the ones in need, they did not feet in the agency capacities evaluation format so they received very few support while the other, because they were well integrated and less affected, received a lot of support. But there you touch the limits of the exercise. Knowing the truth helps but is not what agencies are looking for; they do look for capacities to implement their projects: the "solutions search problems to solve" approach.

The main issue is the unexpressed needs.
The relation between observer and communities are always false in the sense that communities are assuming that you come with an agenda. So they give you purposely the answers they think will comply with your expectations.
There has been some famous anthropological work on this, mainly based on cannibalism practices. (Marc, I am sorry but I count on you to come with theoretical reference on that one. I have completely forgotten the book and anthropologist names on this).
A great example of this is the CARE assessment done in North Kivu in 2007 among IDPs (CARE DRC; Internal displacement in North Kivu-Hosting, camps and coping mechanisms (CARE DRC, 27 April 2008).).
According to CARE, everything was fine. But, if you read carefully the CARE report, there are 5 lines from an interview with NRC members. The NRC team members' description of the situation is the complete opposite: sexual abuse, trade sex/aid for hosting, employment discrimination,…
CARE observation is correct but NRC testimony was closer to reality (not truth). Truth was in between: yes host population did feel it was an honor to help; yes displaced population felt they were a weight for hosting population and yes hosting populations were harassing IDPs and international NGO and UN agencies were blind to it.
The unexpressed need was the host population need for aid and access denial to it from relief societies. So, as they could not access aid directly, host population took it by force from IDPs.

And finally, yes, I do refer to Edgar Rice Burroughs Barsoom. I am a big fan… (Call me a geek if you want; no problem with that. But I am no nerd.:D)
ERB advocacy for US involvement in world war in his moon cycle is one of the less known but one of the most interesting contributions of popular pulp culture to US politic. On this I tried to start a threat on the relation between Science Fiction Culture and military few time ago.

jmm99
05-13-2010, 06:34 PM
this:


from M-A Lagrange
The myth I am fighting against is that idea that traditional societies are the solution because they are ‘traditional’ meaning untouched and pure compared to the modern societies which bring conflicts.

All criminal and civil justice systems have three very basic components: (1) Substance; (2) Procedure; and (3) Personnel. From what you say, the breakdown in SL and Liberia was primarily in the personnel component. Of course, when law enforcement and judicial personnel become corrupted, the substantive law (in its application) becomes corrupted and procedural process becomes corrupted as well.

I suspect that the choice is often between systems that do not provide security (as we in the "West" view it), and that the choice goes to the system that relatively gives the best form of insecurity.

Regards

Mike

PS: I forego discussion of Geek (http://en.wikipedia.org/wiki/Geek), Nerd (http://en.wikipedia.org/wiki/Nerd) and How to Tell the Difference (http://www.wikihow.com/Tell-the-Difference-Between-Nerds-and-Geeks); except to self-describe myself in terms of the mutt in I'm Dreaming of a Geek Christmas (http://www.wikihow.com/Image:I%27m-Dreaming-of-a-Geek-Christmas.jpg). The Monty Python Killer Rabbit (http://en.wikipedia.org/wiki/Rabbit_of_Caerbannog) is definitely a cool dude.

jmm99
05-14-2010, 02:20 AM
A short report from MoD, The Role of the Justice Sector in Security Sector Reform (Ministry of Defence 2008), 19 pp., was linked by David some time ago (IIRC). In any event, it is worth reading.

First as to the drawbacks of traditional systems, pp. 4-5:


15. Current UNDP guidance says that ‘It is important to emphasise at the outset that traditional justice systems should only be recognised and supported when they are consistent with the rule of law and respect for the human rights of all groups in society”. Unfortunately, they never are. All traditional justice systems tend to suffer from one or more of the following:

Male dominated

• Most rural societies in the developing world orbit around male authority figures and tend to exclude women and children and discriminate against young adults of either gender;

Ethnic/tribal/religious exclusion

• Traditional structures can often exclude those who are not from the relevant tribe, village or religion or can deliver sentences that are nonsensical to the victim or accused (e.g. a Christian forum forgiving an accused when the victim wants retribution/reparation).

Violate human rights

• Sentences can include execution or violent punishment or forced marriages and other results which seem inconsistent with the European interpretation of human rights.

Unpredictable

• Judgments and sentences can vary wildly one day to the next, let alone from one district to the next. Laws are rarely codified and written down (even if the practitioners can read them)

No appeal process

• Either there is no right of appeal, or it is not widely known about, or making an appeal is likely to jeopardise an accused’s wider interests because they and their family will be penalised for undermining an elder’s authority.

The first, third and fifth "drawbacks" reflect current "Western" constructs, which would be immaterial if the goal is not to convert the sauvage (whether bon or mal).

As to the upside of traditional justice, p.5:


16. Despite what are often seen as flaws, it is often estimated that around 90% of people living in societies with a plural legal system access justice via traditional mechanisms. This is because most systems have one or all of the following advantages:

Accessibility

• The system is usually in the area where the victim lives, uses the same language he/she speaks and does not require the use of expensive solicitors and barristers.

Culturally relevant

• Those applying judgment to the case have similar values/religion/beliefs as those before them and base sentences in ways that make sense to all concerned.

• It is quick

Engaging

• It involves the family/ clan/ tribe/ village. Which ensure that any decision is enforced. By extension, it need not involve the police force, often feared and a further source of expense in bribes.

Conciliatory

• It takes the need of the entire community into account and often focuses on reconciliation as anyone found guilty will almost always continue to live in the community. Sentences often include fines or other reparative mechanisms rather than retributive violence or exclusion from the community.

Flexibility

• Rules and procedures are not fixed and can adapt to the specifics of the case at hand.

The report goes on to consider these various pluses and minuses in more depth; as well as looking more closely at the justice sectors in Sierra Leone, South Africa, Rwanda and Afghanistan.

As to SL (pp. 9-10):


34. Ever since its formal establishment as a British colony in the Nineteenth century, Sierra Leone has operated with a two-tier legal system: traditional or customary justice based on local chiefs and an English common-law based court system. The formal status of the traditional element has varied over time but has always remained the main conduit for justice for the vast majority of the population. This is a pattern common to most African ex-colonial states. In structural terms, and in descending order, there is a Supreme Court, a Court of Appeal, a High Court, Magistrate Courts and Local Courts (also known as Chief’s courts). The Local Courts apply “customary” justice in their area and there is a right of appeal to a Magistrate (sometimes heard in a Magistrate’s court, sometimes in what is called a District Appeal Court, when the Magistrate is assisted by two experts in customary law).
......
39. In 2003, the progress made in encouraging police officers to make arrests was being undermined by the fact that, there were only around 12 magistrates in the country (most based in Freetown) and all openly corrupt. If the police arrested someone (e.g., for stealing), in the unlikely event that the case actually made its way to the courts, the magistrate was simply bribed to release the accused. As a result, ordinary Sierra Leoneans saw little point in using the official state channels of justice and remained reliant on their traditional justice mechanisms (delivered by village elders or by witch doctors) as a way of seeking redress.

40. The traditional justice system is based upon a hierarchy of chiefs: village chiefs, town chiefs, sector chiefs and, at the top, a paramount chief, each of whom was responsible for administering justice in their specific area. This structure had been recognised formally by the colonial authorities in 1937, when the chiefs were allowed to preside over court cases affecting people in their area . Following independence, this power was repealed by the 1963 Local Court Act, which limited the chiefs’ powers to minor civil cases and created local courts led by court chairmen (appointed by the Government) and assisted by a panel of elders and others. Despite these provisions, the chiefs continued to be the first point of call for most citizens seeking justice.

41. Today, the picture is even more complex. The conflict destroyed much legal infrastructure in rural communities and violence was also directed at chiefs seen to be favouring the “wrong” side. Knowledge of the (unwritten) customary laws became weak (even by those supposed to be applying them) and many chiefs invented new laws. As a result, judgments can be wildly different from one case to the next. With little knowledge of the laws that are supposed to apply to them (state and traditional) and a low literacy rate, hindering clarification, people have turned to alternative mechanisms to help mediate in disputes: family headmen, faith groups, secret societies, youth associations etc. A study for the UK-supported Justice Sector Development Programme counted 16 different justice mechanisms of some sort in Sierra Leone.

All of this proves out M-A's points.

Regards

Mike

marct
05-14-2010, 02:38 AM
First, the document can be found here (http://www.google.com/webhp#hl=en&q=%22The+Role+of+the+Justice+Sector+in+Security+Se ctor+Reform%22&aq=f&aqi=&aql=&oq=&gs_rfai=&fp=3a5ece872b8b6255) (URL weirdness prevented a clean link, sorry :wry:).

Second, yes, the myth is the same one; it shows up in both bon and mal variants, and is quite widespread. It has a whole slew of dangerous ramifications but, for our purposes, probably the most dangerous is the assumption that "traditional" means "unchanging", coupled with a degenerationist view of Western society. I'm sure Levi-Strauss would just say that it was the bianry opposition of the older developmental paradigm :wry:.

Third, Barsoom is a totally cool place and, if we are talking about ERB's fantasy related to war and politics, let's not forget wither the Venus series, which was tied pretty heavily to the lead up to WW II, and his last work Beyond the Farthest Star (http://gutenberg.net.au/ebooks06/0606081h.html).

jmm99
05-14-2010, 03:30 AM
Link to RCDS 2008 reports (http://www.da.mod.uk/colleges/rcds/publications/seaford-house-papers/seaford-house-papers-2008/CommandantsForeward2008) and link to The Role of the Justice Sector in Security Sector Reform (http://www.da.mod.uk/colleges/rcds/publications/seaford-house-papers/seaford-house-papers-2008/13%20-%20Forber.pdf), a Seaford House Paper for 2008 (http://www.da.mod.uk/colleges/rcds/publications/seaford-house-papers/seaford-house-papers-2008).

Cheers

Mike

Bob's World
05-14-2010, 05:51 AM
I suspect all societies are a lot more "tribal" than some of the more "modern" ones would care to admit. Particularly when the more "primative" ones are actually much better at being tribal than the advanced ones are. To think such thoughts upsets our sense of order and priority. After all, how can one be both superior to and inferior to another at the same time??

Oh, and I must confess,in my middle school years I consumed everything Edgar Rice Burroughs wrote. Moved on to Louis Lamour in High School. I'm sure a shrink would have something pithy to empart given that insight.

M-A Lagrange
05-15-2010, 10:37 AM
You will find below part of a report and I found very much interesting on the question of tribal justice. To protect the people, I changed the names and locations. But still, what this reports shows, is that traditional justice is sometime not that helpful to solve problems and protect the people.
For everyone to understand, the Monyomiji are traditional youth groups who are in charge to defend the village. But unaddressed issues from the past, political miss management and decades of war have completely altered the very core spirit of Monyomiji.
It also shows the limits of traditional justice which is, most of the time, limited to a village (even in the same tribal/ethnic group area).
I hope this case study will help everyone to approach the issues raised in this threat problematic on a very practical way.
I found this report representative as it shows the limits of tribal justice, limits of modern justiceimplementation and limits and challenges of external actors in such problematic.


0n 23rd April 2010 CAD met with the Commissioner of G. The aim was to gain information on the recently reported killing incident in X. He reported that a boy (student) was killed at 0800hrs on 19th April 2010 by an unidentified gun man. It was thought to be in relation to a previous cattle raiding incidence. It was reported that following the death of this boy, the X Monyomiji mobilized and tracked the footprints of the assailant the village of Y. The X Monyomiji were allegedly ambushed by the Y Monjimji. A fire fight erupted and claimed two (02) lives from both sides, as well the injury of one X youth. The Commissioner reported that on 21 April 10, he traveled to both villages and attempted to defuse the situation. The X accused the Y for the recent killings and the Y accused the X of harassing their women. In Y village, the Commissioner gave a drive to a group of Y people who were reportedly stranded. They wanted to go to G after the end of voting process. However, while talking to some chiefs in X, local youths surrounded the vehicle with the Y passengers and started harassing them. This vehicle was guarded by the Commissioner’s police. The youth were acting aggressively but the Commissioner said that he was not directly targeted. A young male Y passenger was so frightened that he jumped out of the vehicle and ran back to Y. Upon reaching G, it was discovered that the boy was missing. The Commissioner then sent the police to Y. They confirmed that the boy was located with his family, alive and well. The Commissioner said that the situation in X is currently tense (as confirmed by the X Chief during a phone call), but fighting has ceased. Communication with Y village has not been monitored since the incident occurred. Y villagers are said to be very nervous and are fearful of a revenging attack. When asked about a special court previously established to settle long standing disputes between communities, The Commissioner indicated several problems with the process:
1) The reluctance of the people to help Police apprehend the culprits (main problem);
2) The lack of facility;
3) The fact that the Paramount Chief is based in G; and
4) Inadequate follow-up on the part of the authorities.
Police presence is sparse in X (few in number). The Commissioner vowed to send 15 Policemen in each of the two dispute locations as soon as logistics permits. It is intended for them to patrol the U, O and G roads, as well as Y and X roads. It is hoped that these patrols will act as deterrence against any potential tribal attacks. The Commissioner also stated that the tribal clashes between the two villages have violated the peace agreement reached last year. Nevertheless, this agreement still exists. The conflict is based on two major mutual grievances (stolen cattle not returned and murderers left unpunished). It is alleged that the Monyomiji are negatively influencing the problem by supporting the conflict instead of trying to help settle it. They wield a great deal of influence in the area, including the traditional authorities. The Commissioner requested UN to support a conference (under the auspices of the BLABLA Community Association) that would not only bring together representatives from Y and X, but also all other villages in X payam. Politicians should also be invited. CAD suggested that after the elections the time would be appropriate to facilitate such a gathering in order to strengthen commitment to the resolutions adopted in previous peace talks.

marct
05-16-2010, 02:00 PM
Interesting report, MA. A couple of points, in no particular order, that I'd like to note.

First off, "tribal justice" certainly isn't a single thing; it can vary dramatically from group to group. The habit of thinking of tribal justice as a singular entity, however, is all part and parcel of that myth we were chatting about earlier.

Second point. Most, but not all, tribal justice systems are also tide in with some sort of feud system where the incentive to resolve an issue is balanced against the threat of ongoing raids. The cattle raids mentioned in this report sound like a fairly typical example of the type. The key point I wanted to bring out is that the threat of violence is from an equal group, not one that is (supposedly) superior.

Third point. Most tribal justice systems focus on the social good (of the tribe) rather than the individual good. While we can see resonances of this in the Common Law system coming from Britain, the emphasis is quite different.

Fourth point. Most tribal justice systems do not have written, codified "laws" per se; they operate on custom and breaches of custom that are viewed as endangering the group. Many of the "modern" legal codes actually derive out of attempts to overthrow custom by centralizing both threat of force and the right to define what is and is not a breach of "law". (As a side note, Mike and I chatted about this in reference to the Hittite legal code a while back).

Fifth point. Tribal justice systems are "evolved" rather than "designed". They tend to be both more flexible than legal codes and, at the same time, much more restrictive. They are more flexible in that they tend to look at both actions and effects, and their operations "make sense" of the actions in a larger narrative structure that is (generally) accepted by all parties. This means that they can handle "new" actions and situations sometimes much more easily than legal codes. They are also much more restrictive in some cases, especially where actions and effects are related to social roles.

Sixth point. Most tribal justice systems have some form of redress mechanism that allows for a social conflict to be halted and its continuation placed under a ban (threat of unified force). These mechanisms, however, are extremely variable as to when they kick in, who can perform them, etc.

Seventh point. Any time tribal groups are under massive social strain, all of the mechanisms change. As an evolved rather than designed system, these systems rely on some degree of homeostasis and, when that is disturbed, they are disturbed. One of the really smart things the Brits did with their system of indirect rule was to carve out areas of tribal justice systems that they could artificially hold in stasis and, thereby, manipulate the environmental variables.

Just some thoughts on an early Sunday morning with not enough coffee... :D

Cheers,

Marc

jmm99
05-16-2010, 08:02 PM
re: the Lagrangian Paradise.

I gather this "district" has a number of villes (based on "roads discussion"; G is the main ville and district center with Commissioner and Paramount Chief; X, Y, O & U are subsidiary). Are all these ville folks from the same population group (e.g., common dialect, customs, etc.) ? What (if anything) differentiates folks in one ville from another ville (e.g., separate extended families or totem clans) ?

Based on this:


0n 23rd April 2010 CAD met with the Commissioner of G. The aim was to gain information on the recently reported killing incident in X. He reported that a boy (student) was killed at 0800hrs on 19th April 2010 by an unidentified gun man. It was thought to be in relation to a previous cattle raiding incidence. It was reported that following the death of this boy, the X Monyomiji mobilized and tracked the footprints of the assailant the village of Y. The X Monyomiji were allegedly ambushed by the Y Monjimji. A fire fight erupted and claimed two (02) lives from both sides, as well the injury of one X youth. The Commissioner reported that on 21 April 10, he traveled to both villages and attempted to defuse the situation. The X accused the Y for the recent killings and the Y accused the X of harassing their women.

the X & Y Monyomiji have down such "M" stuff as force projection, tracking and meeting force with force - as well as some "I" stuff (conflicting claims re: narrated causes, with some underlying "E" stuff, a fair inference).

Despite the "sensitive" situation vis a vis X and Y folks, the Commissioner seems to have free passage in both villages. Why is that so ? Can the same be said for the Paramount Chief (also residing at G) ?

What X and Y seem to lack is an "international" dispute resolution mechanism - "D" (on an inter-ville basis) is apparently lacking in their vocabulary; although it seems that the Commissioner and Paramount Chief have been involved in this unsuccessful attempt at "D":


When asked about a special court previously established to settle long standing disputes between communities, The Commissioner indicated several problems with the process:

1) The reluctance of the people to help Police apprehend the culprits (main problem);
2) The lack of facility;
3) The fact that the Paramount Chief is based in G; and
4) Inadequate follow-up on the part of the authorities.

Police presence is sparse in X (few in number). The Commissioner vowed to send 15 Policemen in each of the two dispute locations as soon as logistics permits.

Have these villes ever had a tribunal to settle inter-ville differences ? If so, when, what did it look like and why did it end ? More generally, how have these inter-ville armed conflicts ended in the past ? Or have they just settled down for a time until it's time for a new generation to "go to the mattresses" ?

As an alternative to a Weberian Paradise, is the Monyomiji system also suited to the local inter-ville relationships (so long as the conflict remains low intensity) by providing for "redistribution of wealth" (cattle raiding), allowing young men to prove and improve their status, get married and sire a flock of warrior kids, etc., etc. ?

Oh, and what's a CAD ?

Regards

Mike

M-A Lagrange
05-18-2010, 07:37 AM
Mes respects Mike,


I gather this "district" has a number of villes (based on "roads discussion"; G is the main ville and district center with Commissioner and Paramount Chief; X, Y, O & U are subsidiary). Are all these ville folks from the same population group (e.g., common dialect, customs, etc.) ? What (if anything) differentiates folks in one ville from another ville (e.g., separate extended families or totem clans) ?

Well, I will try to clarify a little all of this. First, yes, G is the main city of the area. Secondly, no, all populations are not from the same ethnical group. But X and Y are from the same ethnical group. They do have common dialects and common customs.
What differentiate the population from one city from another? Good question! It is hard to say, mainly extended family relations. But also, and that is one of the main points, what each of those village population did or not during the past war. Not that they fought each others but rather how they did cope with it.
But it does not really matter if we try to look at this report as representative of the difficulties faced on the ground. This mainly because in fact, the unexpressed needs on those 2 villages conflict is all about miss governance and unfair distribution of peace benefits. Village X received all the aid while village Y did receive none.
It looks anecdotic but as demonstrated the anthropologist Elikia M’Bokolo, ethnic groups and tribes are not something fixed and new ethnic groups may be created on such bases as differentiated access to development or administrative power or a split between 2 groups in a village. (This reinforce the dynamic character of traditional societies as posted Marc)



the X & Y Monyomiji have down such "M" stuff as force projection, tracking and meeting force with force - as well as some "I" stuff (conflicting claims re: narrated causes, with some underlying "E" stuff, a fair inference).

Despite the "sensitive" situation vis a vis X and Y folks, the Commissioner seems to have free passage in both villages. Why is that so ? Can the same be said for the Paramount Chief (also residing at G) ?

What X and Y seem to lack is an "international" dispute resolution mechanism - "D" (on an inter-ville basis) is apparently lacking in their vocabulary; although it seems that the Commissioner and Paramount Chief have been involved in this unsuccessful attempt at "D":
It is somehow a lagrangian paradise in the sense, as you mentioned it, that what characterise this situation, and many I have been in, lack of international mechanisms to initiate dialog between 2 villages.
Here, as in many other places, the village is like a small country. This is why I tend to approach tribal or traditional societies as islands in a sea of sand.
The paramount chief is both a traditional and administrative authority, such as the village chief. How they are chosen? Partly by the population and partly by “central” power. Therefore, even in a homogeneous ethnical group area, the situation is much like an archipelago. Each village has its land and between each village, free land can be assimilated to “international waters”.
The paramount chief should be the authority who would settle issues between al villages. But when it falls into violence, the recognised authority is the commissioner. This mainly because paramount chief does not have real force capacity while commissioner does.
I wonder how much sea law approach could help to analyse and set up mechanisms to solve such practical issues.

Concerning freedom of movement, the paramount chief does have the same freedom of movement than commissioner but he does not have either the will or the capacity (a car). And, in addition, commissioner does have troops to protect him.






Have these villes ever had a tribunal to settle inter-ville differences ? If so, when, what did it look like and why did it end ? More generally, how have these inter-ville armed conflicts ended in the past ? Or have they just settled down for a time until it's time for a new generation to "go to the mattresses" ?
The situation is some how new, in the sense that inter-village conflict settlement is not a new thing but peaceful settlement is. To be clear, the peace agreement this report is referring to is basically built on the same bases as an international peace agreement: the 2 parties agree to stop fighting on 1 issue (here the cattle raiding issue). A third party is designated as observer and a compensation mechanism is put in place.
If any member of any of the 2 communities commits an offence against the peace agreement, the offended party can report it to the third party who will then establish a compensation price, initiate actions to bring the “criminal” to justice.
One of the many limits of that process is the fact that:
1) Elders who are the warrant of the peace process have no obligation of success or even results. As elders are not affected if there are no results, some may decide to not implement the peace agreement.
2) Youth are not respecting elders anymore.
3) Elders are not respecting youth who do not comply with tradition (going for cattle raiding and women and children abduction). An interesting report on this in Central Equatorian state in South Sudan was published several months ago. Unfortunately I lost it. But as described in a previous post, it is the same problematic of age group competition (with a variation) as in Liberia.
What characterise post conflict areas I have been into is that impossible dialog between elders and youth based on the denial (on both sides) of social power/recognition by each age group. I personally believe that this is one of the problematic that we do have important lack of understanding: social impact of war on age groups and how this is in depth affecting peace building capacities by undermining judicial systems in fragile and traditional societies.



As an alternative to a Weberian Paradise, is the Monyomiji system also suited to the local inter-ville relationships (so long as the conflict remains low intensity) by providing for "redistribution of wealth" (cattle raiding), allowing young men to prove and improve their status, get married and sire a flock of warrior kids, etc., etc. ?

We are here in the problematic I was talking about previously. Basically Monyomiji does play a role in youth integration in the village social power mechanisms. But war impacts have been:
1) To impoverish the elders and therefore the youth.
2) To build capacities inside youth (through vocational training relief programs) which are not recognised by the elders’ group as valuable. As example, one of my colleagues, who is graduated in politic science and has a job in an international organisation, is not respected by the elders of his village because he did not cattle raid. But he is making more money in one month they will never have in their life (and he is not making much, less than 2000$).
3) And finally a culture of violence inside youth who has been raised in a country at war during several decades and does not recognised any value in peace as they never experienced it.
So, as you pointed it Mike, youth have a social obligation to cattle raid, abduct children and women. But they also face an economical necessity as there are no employment opportunities. And if there are some, it is not recognised (back to the social obligation).
And finally, war is the only way of life those young men know in fact. As it is said in a War Child poster: you can take a child out of the war but how do you take the war out of a child?

But concerning our subject, we have here a strong combination of social and economical disturbances which are basically undermining any efforts to build or rebuild any form of judicial systems. Using the traditional systems looks like a good idea as it seems to be a widely accepted referral system but, as I mentioned before, the assumption that goes with is that traditional systems are frozen in time. (A mistake according to Levis Straus, as Marc pointed).
With traditional societies based on Islam, this might be slightly different as the legal referent is written (Coran). But still, each village judicial system will still remain subject to local interpretation.

Oh, and CAD means Civil Affairs Department

M-A

marct
05-18-2010, 01:54 PM
HI MA,

Thanks for the expansion on the situation.

One of the things that I really appreciated with it was that you pointed out how cultures "change". One of the really big problems with the idea, the myth if you will, of "tribal societies" is their "eternal" nature (good, bad or indifferent). All cultures change, although they will retain components from their pre-change states.

You were talking about a competition between age grades - elders vs. youth - and this is a pretty common tension in most societies; hey, I see it in Canada and the US too :D (this (http://www.youtube.com/watch?v=1wCXr_6wgns) is a great example, albeit dated). One of the things that seems to be operating in the case of this particular tension is what sets the limits on the relationship between the age grades, and how has that changed? In the cases you're discussing, cattle raiding, etc., the skills and tools of such raids could not, really, be used against the elders who could mobilize another age grade as a physical counterpoise. That changes with automatic weapons where a 10 year old can kill a 30 year old (unlikely, albeit still possible, with spears and/or swords).

Changes in the environment (physical, economic, technological) always create perturbations in a culture. This can get to be really problematic when those factors have been stable for 4+ generations, and their local solutions have been ritualized and tied into local meaning structures; "sanctified by tradition" as it were. You end up with a "tradition" that is now destabilizing a community where once it stabilized it.

jmm99
05-18-2010, 05:48 PM
is a fascinating legal area because it includes, in an international and comparative law context, all of the domestic law subjects (e.g., property, contract, tort, compensation, criminal) needed to regulate interactions between actors who are often of different domestic law regimes. So, its application (in broad-brushed concept) to your "islands in the sand" seems plausible.

It seems odd that some sort of inter-ville conflict resolution system is not "indigenous", especially between villes of the same culture (e.g., North American Indians from Labrador through the Great Lakes regularly used restitution as an alternative to blood feuds). Perhaps, that concept has been lost because of repeated armed conflicts. In any event, whether you call it Sand Sea Law or something else, it will have to be imposed (or at least introduced) by a third party. So, you have more a "rule by law" than a "rule of law". Rule by law is OK if it is accepted by all concerned.

Third parties apparently have not been too smart re: villes X and Y:


from M-A
But it does not really matter if we try to look at this report as representative of the difficulties faced on the ground. This mainly because in fact, the unexpressed needs on those 2 villages conflict is all about miss governance and unfair distribution of peace benefits. Village X received all the aid while village Y did receive none.

Thus, Y has to raid X to obtain "redistribution of wealth". If Sand Sea Law forbids Y from trying to even up its economic position re: X, that law will not be accepted by Y as legitimate.

By favoring X with all the aid, the "third party" denied economic opportunity to Y, which denial is emphasized if the law does not allow Y its only redress; and is further emphasized if the Commissioner uses a platoon of cops to meet force from Y with force. From the standpoint of X (favored by governance), governance is "good" and triply legitimate (favoritism in economic opportunity, law and security force). Y would see governance as triply illegitimate.

Legitimacy issues come on three general levels - ideology, opportunity and security (all being relative; e.g., who offers the better deal in "insecurity" ;)). It looks like correction in your case study would have to start at the opportunity level (evening up X and Y). That would depend on the prevailing Politik's ability to shift gears. If not (e.g., Vietnam I and II), the solution left is Wilfian.

Regards

Mike

M-A Lagrange
05-20-2010, 09:56 AM
To continue in the direction given by Marc, I would like to illustrate how modern legal system may also influence traditional justice. As Marc pointed, traditional systems are dynamic and also show that traditional justice (or societies in general) is not disconnected with modern legal system.

For this purpose, I will use the example of the Kongo society in Bas Congo Province of DRC. This province has the characteristic to be populated by an ethnic group who is organised in clans, almost the only one in DRC. But, what is really interesting is that the clan structure was matriarchal. What does that mean concretely?
In the past, clan chief were men but the clan identity is transmitted through women and not men. It is not who your father is which is important but who your mother is that will determine to which clan you belong to.
Why is that so important? Because in the traditional system, it defines how heritage (land and properties) was divided and transmitted.
Nowadays, modern laws are patriarchal based. In DRC legal system is based on the Belgian legal system which is coming from the Roman legal system. In terms of heritage this means it is a transmission from father to son while in Kongo system it was a mother to son transmission.

Also, Bas Congo province welcomed refugees from Angola during the Angola civil war. The Kongo ethnic group is spread all over North Angola, Bas Congo, Congo Brazzaville up to Cameron. (Mike may give some historical details on this). So when the refugees came from Angola to Bas Congo (DRC), they easily integrated into the population as they were all related through extended family and clan.
An in depth study conducted in 2008 by an anthropologist among Bas Congo refugees demonstrated that in fact, situation was not that clear and traditional justice and society mechanisms were no more respected.
First, due to the difference of treatment and access to several services by international community, a division was made between Angolan Kongo and Congolese Kongo by local population. I, personally, did witness such mechanism of ethnic group creation in Chad between Chadian Massalite and Darfury Massalite for the exact same reason. This comes in the line of the researches and work of Anthropologist Elikia M’Bokolo who worked on the complex mechanisms of ethnic groups and tribe creation. (And does reinforce Marc points on the fact that traditional societies are dynamic evolving social objects, sometimes very quickly.)

Secondly, the survey (conducted only in DRC, situation might be different in Angola) demonstrated that if a Congolese woman marries an Angolan man then their child would be considered as Congolese or belonging to the women clan but as an Angolan. And when an Angolan woman marries a Congolese their child would be considered as a Congolese. We have here a first disruption of the traditional justice as according to traditional justice, the child belongs to the community of the mother. But when the child reaches the adult age then this might be reinterpreted by the community. Basically what is happening is that the Congolese man marrying an Angolan woman will leave her the child to be raised by her. As per traditional society rule, the mother will have the charge of educating and raising the child. But when the adult age comes and the child becomes “economically productive” (as work force for the male and through bride for the female), the Congolese community will claim the child/young adult as Congolese as per Congolese modern law.
In the case of a Congolese woman marrying and Angolan man, the child will be raised and educated by the mother, as per traditional rules. But the Congolese family will not consider that child as Congolese when he or she becomes a young adult. The situation would be even worst when it comes to young women. Because they would be denied the Congolese status but the Congolese family will still request to receive the bride as per traditional rules. Traditional chiefs will even support the Congolese families in both cases, playing with modern and traditional justice and legislation depending on each case.

Here, we have neither a society rule by law neither subject of rule of law but a traditional society assimilating modern law to transform a traditional matriarchal system into a de facto patriarchal system.
If that was limited to nationality, the issue would not be that important. But, it also affects land and property heritage. Matriarchal system was set in place to protect women and particularly widows to be spoiled from their property. Nowadays, Kongo women are “legally” more vulnerable as modern law is in contradiction to traditional legal system. Then, as they have a symbolic power position in the Kongo society (as in most of the matriarchal systems) and not a decision making power, they are subject of non linear interpretation of the law (one time modern, one time traditional), depending on the “economical” benefits men or communities can make of this inadequacy of modern law with traditional law.

Finally,

From JMM99:
It seems odd that some sort of inter-ville conflict resolution system is not "indigenous", especially between villes of the same culture (e.g., North American Indians from Labrador through the Great Lakes regularly used restitution as an alternative to blood feuds). Perhaps, that concept has been lost because of repeated armed conflicts. In any event, whether you call it Sand Sea Law or something else, it will have to be imposed (or at least introduced) by a third party. So, you have more a "rule by law" than a "rule of law". Rule by law is OK if it is accepted by all concerned.

Mike, in fact you are very right in the sense that intra ethnic group regulation mechanisms should have been existing. I believe, in the particular case, that the political problematic is the core issue and not the cattle raiding issue. That is why traditional mechanisms might be no more functioning.
To illustrate this, I recommand to go to the following link:
http://www.gurtong.net/ECM/Editorial/tabid/124/ID/3602/Default.aspx

It also shows that in so much war disrupted context, rule by law is somehow a first step that has to be imposed before being able to even think of imposing rule of law. (Comments are very interresting).

M-A Lagrange
05-28-2010, 06:49 AM
Telar Deng calls to review Dinka customary law
May 27, 2010 (RUMBEK) – The Caretaker- Governor of Lakes State, Telar Ring Deng has appealed to the next elected Governor, Engineer Chol Tong Mayay, to initiate a traditional chief’s conference in greater Bahr-El-Ghazal to amend a Dinka customary law known as "Wath Aleel".
Wath Aleel, a Dinka costmary law was established in 1999 in Wunlit. It imposes forceful marriage in the Dinka society and blood compensation in the form of cows. The law means "A gate of stone" and it only covers Bahr-El-Ghazal region in South Sudan.
During Daniel Awet’s term as governor of Lakes State, one article was amended in the law by changing the number of cows paid by adulterers from 15 to 31 cows. . The compensation for killing someone was changed from 51 to 71 cows. However, others states such as Warrap in Northern Bahr-El-Ghazal and Western Bahr-El-Ghazal were not involved in amending this article.
Telar made his call in a speech delivered on Wednesday when he was sworn into the legislative assembly of Lakes State’s Lawmakers. He noted that the "Assembly is charged with the responsibility to protect the community welfare, bring peace and unity to the people of this state."
Telar Ring Deng affirmed that he realizes that the law was amended, however, in respect to law-making processes, and particularly a common law like “Wath Aleel” which covers the Dinka of Bhar El Ghazal, he urged the new Governor of Lakes State and the Assembly to request that the governors and assemblies of Greater Bahr El Ghazal and their chiefs hold a tribal chiefs’ Conference in order to make any amendments that are deemed necessary.
He said that for Lakes State Legislative Assembly to revise the “Wath Aleel” Dinka costmary law of Bhar El Ghazal without the participation of other Greater Bahr El Ghazal States is null and void and should immediately be repealed.
Southern Sudan is close to holding the Referendum in 2011 to decide whether the country will remain united or separate into two countries. The South Sudan Referendum is only 225 days away; however, Deng said that Lakes State must lead its citizens in making a well informed choice in both cases. The citizens must be made aware of the pros and cons of their decision in the referendum.
Since its foundation in 2005, the Lakes state government was overwhelmed with improving the infrastructure, education and the health services, so the security was neglected resulting into killings and corruption as well as nepotism in various institutions.
http://www.sudantribune.com/spip.php?article35212

An interresting intervention which shows all the problematic of customary justice versus formal justice.

Mainy things to comment here and mainy anthropological process to observe in that article. I will not detail all of them but just point the ones that strikes me:
- the legitimacy conflict between traditional and modern law making process. To be legitimate, a modern law has to be passed through traditional mechanisms.
Actually, all the Rule of Law challenge is to revers that perception.
- The refusal of the idea that breaking the law could have an unaffordable cost.
This tells us long about the value of a life and the conception of individual versus group interrest appreciation.
- The need of combine rule by law and rule of law at the same time.
- The fact that customary laws are in fact produce of present and actual and not a produce of the past.
- The fact that custom is perceived as above modern and national law, even by formal authorities.
And it just reinforce all UNDP points posted by JMM. This article comes at an interresting time in South Sudan as UNDP is actually trying to formalise customary law and put them on writing.

M-A Lagrange
08-18-2010, 12:21 PM
Council of Traditional Authority Leaders not Independent

The Eastern Equatoria State Local Government and Law Enforcement Agencies Director General Abdallah Hassan Famai has clarified that the Council of Traditional Authority Leaders (COTAL) does not operate independently from other government institutions.
17 August 2010
By Peter Lokale Nakimangole
TORIT, 17 August 2010 (Gurtong) – Speaking yesterday in Torit at a 3-day consultative workshop of Council of Traditional Authority Leaders of Eastern Equatoria State, Famai dispelled claims by COTAL that they operate as an autonomous institution within its own jurisdiction.
“You cannot be fully autonomous when the State Ministry of Local Government and Law Enforcement Agencies exists because you operate under it. You are part of the local government only that you are extremely closest to the lowest administration of people at the grassroots”, he said.
He added that COTAL is a link and change agent between the people and the government.
“The idea of empowering you is to make a change and create uniform systems of judging societal norms for better and effective governance”, added the Director General.
He called for active cooperation among the traditional leaders adding that by so doing they are able to come up with their own bill which will from time to time safeguard and define their roles and functions as well as powers to be exercised by them.
He, however, clarified that the COTAL hold powers of mobilising resources including revenue collection to facilitate their operations.
Analysts have, however, criticised the government’s policy towards traditional leadership and have called for further adjustments to accommodate it.
They say chiefs know all the corners of their areas of jurisdiction and can efficiently reduce insecurity by apprehending perpetrators and criminals as well as resolving conflicts at the lowest levels.
They also content that traditional leaders play an instrumental role in local administration as well as revenue collection.
“Therefore, granting the traditional command authority to manage its affairs becomes of paramount importance so that available resources can be adequately mobilised and disclosed to the government. By doing so, they begin to feel ownership of governance hence improved relations. Failure to do this will continue to make local chiefs maintain their standoff and hide revenue base from the government even for hundreds of decades from now”, say the analysts.http://www.gurtong.net/ECM/Editorial/tabid/124/ID/3982/Default.aspx

I believe this article illustrate very well the challenges most of us are facing in Rule of Law programs and the problematic of including traditional chief, leaders and customary laws into modern and formal judiciary system. :o

I do particularly like how it points out the problematic of hidden revenues of local leaders. As the call from the minister of Local Governance to remind local chiefs they do have a jurisdiction above them. :D