The Law of Honor:

Operating within Sicilian Cosa Nostra

 

 

 

 

 

 

 

 

 

Joshua Dilger

 

 

 

 

Legal Systems Very Different From Our Own

Prof. David Friedman

Santa Clara University School of Law

4/1/2012


 

Contents

Introduction to the Mafia: Scope and Theoretical Approaches. 3

Organizing Cosa Nostra: The Family. 6

Graphic: The Mafia Family. 7

The Individual’s Place in the Mafia: Requirements, Initiation, Honor and Violence. 10

The Current Mafia and the Mafia in the Future: Shifting Values and Superordinate Structures. 14

Graphic: Superordinate Structures in Cosa Nostra. 17

The Mafia as a “Legal System”: Situating the Mafia in the Philosophical Landscape. 18

The Primacy of Honor: Philosophical Backstop and Incentive Structure. 20

Ubiquitous Mafia Law: Placing The Family First, and Omertą. 21

Circumstantial Mafia Law: A Complex Compendium of Code. 26

The Law of Honor: Operating within Sicilian Cosa Nostra. 29

 


 

Introduction to the Mafia: Scope and Theoretical Approaches

            Prior to 1985 academics harbored serious disagreements over how, or even whether there existed such an organization as the mafia.  In that year however the testimony of pentiti Tommaso Buscetta and Salvatore Contorno, combined with the judicial work of magistrates Giovanni Falcone and Paulo Borsellino removed all doubt.  However, much remained obscured behind carefully tailored curtains of secrecy and obfuscation.  And while commentators have learned much through the swelling ranks of defectors, accounts of the mafia are anything but uniform.  This pervasive disagreement owes largely to the mafia’s concerted efforts to remain under the radar and outside the law – as evidence by the fact that Falcone and Borsellino ultimately fell victims to mafia-orchestrated bombings.

            Three distinct groups can legitimately claim the name “The Mafia”: the Sicilian Mafia, the American Mafia and the 'Ndrangheta of Calabria.  Further, the mafia is at least one-hundred and twenty years old and still a global criminal force.  While these groups, both past and present, and their dozens of offshoots share ideals, rules, nomenclature and more, this paper will focus only on the Sicilian mafia, from early- to mid- twentieth century.  The Sicilian group is the organization most commonly associate with the word “Mafia,” and the progenitor of other branches.  Further, the early twentieth-century represent the Golden Age of the Mafia, when practice hewed closely to ideology, power structures were well-defined and ensconced in the minds of all members.  Globalization and the edification of a Unified Italy have forced major departures from this tradition.  Therefore, this paper will be written entirely in the past-tense, reflecting the differences between the subject of this paper and the current mafia.

            The texts have constituted the mafia through varying, sometimes antithetical, sometimes blended lines of interpretation.  Early assessments remained resistant to the mafia qua organized crime, preferring to see the constitutive associations of the mafia as mere pronounced emanations of Sicilian culture, lifestyle and ideals.  To these scholars, an organization with hierarchy, procedures and laws was to make something of nothing merely by looking for it.  However, that the mafia represents an important independent sociological artifact has become the accepted view.  The two main views of the group are as an economic enterprise and as a pre-modern society bound by contracts of fraternity.  Before embarking on the purely descriptive recitation of how the mafia functions as a legal system, each of these methodological approaches will briefly be discussed since they bear on an understanding of what the Mafia is.

            Diego Gambetta’s The Sicilian Mafia is undoubtedly the most relevant of recent articulations of the economic approach.  Gambetta likens Mafia families, the basic organizational units within the mafia[1], to firms participating in a market for protection.  According to Gambetta, mafia families are regional monopolies which produce, promote and sell private protection by wielding violence.  Violence is the commodity he says, but not the ultimate end; protection is what Gambetta calls their product.  He uses the foundational assumption of economics that decisions are calculations for maximizing wealth to explain mafia organization, activities and norms.  For example the mafia’s hierarchical structure, similar to corporations or the military, is tailored to maximize efficiency through coordinating cooperation.  Or, Gambetta postulates, the use of violence against members is explained by the need to hold down opportunistic behavior and maintain order.  The strictures of silence, or Omertą, protect the institution from penetration, by law enforcement or other hostile parties.  Participating in market economies through rational behavior produces organization Gambetta observes, which is how he approaches the complex, coordinated crime institution of the Mafia.

Recent commentators such as Letizia Paoli have viewed the mafia as a pre-modern society bound by contracts of fraternity.  Members of such a society are bound by a common, collective identity assumed upon induction.  The interests of this new self supersede the motives, interests or desires of any member; the collective becomes the controlling paradigm.  Paoli states that mafia initiates are re-socialized to a new paradigm, one not based on externalities such as wealth, but on identity, relationship and association.  In such a group members totally subsume or replace their identity with that of the group.  Therefore acts which are not rational in economic terms are still executed without hesitation.  Further, external governments, personal relationships, or mores outside of the mafia are totally purged of their moral or normative force.  To the mafia and his brothers the Mafioso binds his identity to the exclusion of all else.   For example, murder outside the mafia is a tool without moral weight, checked only by utilitarian consideration of avoiding police.  On the other hand, a mafia rule discussed below states, “Always be available for Cosa Nostra - even if your wife is about to give birth.

That the mafia views itself as bound by such ties is abundantly clear in its vocabulary and phraseology.  Introductions in the mafia are made in one of two ways: by describing the man as part of cosa nostra – our thing – or by saying e la stessa cosa – this is the same thing.  Mafia members refer to one another as “brother,” and function in a cosche, or family.  The notion of become a part is evidenced in members referring to one another as “made” men.  But perhaps nowhere is the mafia’s conception of itself as a pre-modern society, bound by contracts of fraternity, more evident than in its oath.  An inductee says before his chief and a few brothers:

As this saint and these drops of my blood burn, so will I shed all my blood for the Fratellanza, and as this ash and this blood cannot return to their [original] state, so I cannot leave the Fratellanza.  I swear to be loyal to my brothers, never to betray them, and if I fail may I bun and be turned to ashes like the ashes of this image.  May my flesh be burned like this sacred image if I do not keep faith with my oath.  I swear to be loyal to the family, and if I were to betray it, may my flesh burn like this sacred image.  As burns this saint, so will burn my soul.

Neither Gambetta’s economic approach not Paoli’s pre-modern-contracts approach supply the substantive prescriptions by which a Mafioso lived.  However, they supply the underlying ideals which undergird existing laws and form the basis for the mafia’s continued functioning.  They also explain how and why the mafia assumes its hierarchical form, who it accepts as members, and the selection and role of leaders.  As such they are essential to understand the mafia as a legal society.

Organizing Cosa Nostra: The Family

The major organizational unit within the mafia hierarchy is the family, also called cosche, borgatas or clans, with some divisions above and below the family.  Mafia families are decentralized operational-monopolies separate from biological bloodlines, usually defined geographically, although sometimes by sector.  For instance, each of the 46 Palermo families autonomously controlled either a few blocks of the city, or had exclusive license to extort an industry, e.g. construction.  Gambetta supports his firm-theory of the mafia by noting the rarity of inter-family violence.  Like legitimate monopolistic companies, he notes, each family finds it most efficient to refrain from wars in which each firm ends up worse off.  However, violence did break out when demand fell off, negotiations deteriorated or opportunistic encroachment seemed possible.

Heading the family is a single boss, also called a capofamiglia (family head), or rappresentante (when he represents the family).  Gambetta analogizes the boss to a CEO because 


Graphic: The Mafia Family

Boss called  capofamiglia (the head of the family) or rappresentante (the representative of the family).

Underboss called the sotto capo.

Advisor(s) called the consigliere.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Groups called Decina.

Group leader  called capodecina or caporegime.

Soldiers called soldati or operai.  Decinas are made up of between 5-30 soldiers, although “Decina” suggests 10.

 

 

Associates called avvicinati or affiliati.

 

 

 



he directs the operations of lower soldiers.  He also coordinates executive decisions such as payments made to wives of imprisoned members, ensuring that all members are contributing their fair share, and ordering hits.   Paoli is quick to note, however, that ideally the capofamiglia holds no “special” position; his duties afford him no extra honor.  Rather the boss was the servant of the family.  Bound by tries of equality, mutual aid and cooperation, he was in principle equal with any other member. 

The boss is elected by rank-and-file members based on his skill at furthering family goals, which usually equates to his ability to wield violence.  A term is typically one year though his tenure could be cut short by mismanagement, incompetence, or violent ouster.  Paoli points out the ideals of equality, fraternity and identity embedded in direct democracy.  Particularly, he points out, democracy underlines that the boss’s power lies with the office, not the man.  His power is a product of the congress, democracy says, rather than his own.  The strength of Paoli’s observations is evidenced in the durability of the structure; similar formulae are recorded as early as the late nineteenth century.  Democratic principles were was ignored often enough however; bosses would use strong-arm techniques to keep their position for recurring terms, and their position to garner respect.  And ambitious usurpers utilized violence to carry out coupes.  Such abrogations have become more common in recent years.

Two other high-ranking positions hovered over the family, one immediately below the boss, the other to the side.  Below him, the boss selected an underboss or sotto capo, Gambetta’s vice-president.  The sotto capo was the right hand man, handling some executive work such as meeting with soldiers to discuss strategies.  Mostly importantly he assumed power in an emergency, if say the boss were imprisoned or killed in a war.  The consigliere was the family’s solution of who would guard the guardians.  A position of multifarious responsibility, his primary responsibility was to monitor the relations between the boss and soldiers.  Most importantly he monitored monetary transactions, i.e. stopping embezzlement.  He also served as an impartial advisor to the boss and arbiter of intra-family disputes.  Of any brother then he was required to be impartial and devoid of conflicts or ambition.

Ordinary members are organized into decinas.  (Though some clans were so small that this division was unnecessary.)  While dec- implied ten and this was the most common number, a decina could include anywhere between five to thirty soldiers, called soldati or operai.  The decina was headed by a man selected by the boss, the capodecina or caporegime.  The decina and capodecina primarily served a challenging function; the capodecina would discuss the decina’s issues with the capofamiglia (boss) or sotto capo (underboss) to relieve the executive of supervising each member.  However, the most successful bosses were reputed to maintain close relationships with man soldati despite the demands on their time.  Members of equal status refer to each other as “comare,” while inferiors address leaders as “padrino,” both Sicilian for “godfather.”

The final class within the mafia consortium were not mafia at all – they were “associates,” named avvicinati or affiliati.  This group participated or cooperated with the mafia.  Unsurprisingly avvicinati included unaffiliated criminals, prospective or hopeful members, and corrupt politicians or police.  While not “made” men in the sense of being fully initiated, the avvicinati held a recognized and definite role, burdened with responsibilities though rarely enjoying any of the benefits.  Namely the avvicinati had to hold to the same rules as initiated members including prohibitions on certain rackets, obligations against associating with police and the requirement to “pay up,” or give money to one’s superiors.

The mafia also recognized two special forms of membership, or almost membership: Boys of Honor and Reserved Men.  Boys of Honor, giovani d’onore, were young men considered too young to be fully inducted and sat in a half-in/half-out position.  But ever cultivating a milieu of groupthink, these young men submitted to pre-initiation treatment and were called a name which anticipated their eventual status as a Man of Honor.  A “Reserved Man” is a position only possible in the modern mafia, unfathomable in classic ideology.  Outside the mafia, he holds a position of high political or social status with the power to influence.  His status is “reserved,” i.e. his membership is secret to all but the boss, to insure his security and to stop other members from inundating him with requests favors.  Such a reserved status would be impossible under the mafia’s founding principles, but police infiltration, the increasing stream of informants (pentiti), and the encroaching emphasis on making money has necessitated or permitted the use of Reserved Men.

The Individual’s Place in the Mafia: Requirements, Initiation, Honor and Violence

Mafia membership was open to males of sufficient age, so long as certain circumstances did not preclude their membership.  Cosa Nostra excluded those whose relatives worked as law enforcement, or who had become informants.  Those who did not trace their lineage through Sicily could not join, nor those who were a member of the Freemasons[2], nor those who did not live by mafia ideals.  Wives, sisters, daughters, all women were also excluded.  Most men were thus eligible.  Eligibility however did not beget acceptance; a man had to be selected.  His credentials were scrupulously sluiced and an established record of both disregard for the state and fealty to the mafia was necessary.  A prospective member almost always faced an ultimate trial: committing directed murder.  This winnowed out lawmen, proved his commitment, and bound him to silence since he himself now faced murder charges.  If approved, a candidate was inducted through an ceremony that is always described as emotional and memorable.

All pentiti affirm the existence of an induction ritual that commands a tableau of emotions.  Scholars understand the rite to enforce mafia ideals by brining all the group’s interdicts into one moment, one occurrence which cannot be ignored or forgotten.  The stimulation of all five senses including a meal beforehand, the pain of losing blood, the smell of burning paper, the oral oath and the visually striking staging undergirds those ideals to which the mafioso is swearing, embedding them even in his subconscious.  The initiate was invited to a private feast attended by the boss, the underboss, the consigliere, and a few of his brothers.  At the conclusion of the meal the inductee entered a room sparsely staged with only a table, before which he stood.  His finger was pricked with a needle or cut with a knife and a few drops of blood were dropped on a card bearing an image of a saint.  A serious mood would prevail as the image was light aflame.  While the card burned the new member passed the card hand to hand, speaking the oath of loyalty recited above.[3]  Members then kissed the new member, hugged, or spoke words of greeting.  Then he was a “Made Man,” fully initiated.

Several pentiti vary this rite of passage.  The right index finger was most commonly pricked, but the thumb, middle finder or lower lip were also alleged alternatives.  According to one account, the Saint Card is replaced by the image of a skull; sometimes the thorn of a bitter orange tree replaced the knife or needle.  In most instances the observers merely watched, but in others they served as visual props by being heavily armed, or in others a sponsor mingled his blood with the new member.  Blindfolding him and scattering the ashes were also reported variations.

Variations were undoubtedly adapted by both happenstance and necessity but the consistency through decades of mafia induction is surprising.  What never varied, however, was the force behind the ritual.  Seranfino Castagna recounts after the ceremony, “When I became a member, it was for me a new life, with new rules.”  The ritual was meant to engender a feeling of commitment and transformation.   Several scholars have noted the ceremonious invocation of religious memes to give sacral value to the ritual and the its underlying content.  Blood also plays a multifarious role.  Simultaneously and interdependently representing rebirth into the family, kinship, and death as a punishment, blood is an ancient and powerful powerfully symbolizes the member’s role in his new family.

For Paoli the ritual is the definitive moment – it is the consummation of the pre-modern contract that holds throughout the mafia.  The prick of the pin, the blood, flame, and content of the oath symbolize the death or destruction of everything outside Cosa Nostra.  The greetings or mingling of blood represented a rebirth, a brining-into-the-fold, and source of the new member’s identity.  Thus is he re-socialized, not to ends such as wealth or ambition, but to his new identity within the group.  The ritual represented the underwriting of a contract, but the quid is not economic interest. Rather, to Paoli, the ceremony is the closest thing to the tangible instrument recording their pre-modern bonds of identity.  Thus in concluding his thoughts Castagna said, “[After the ceremony], for me only Cosa Nostra existed.”

The initiation was the doorway into the mafia; once through a mafioso began his life as a mafioso.  Mafia culture wholly revolved around honor, or respect, synonyms in the family.  Honor was the capital upon which the group operated: men constantly pursued “respect”; those who had it controlled those without it; being respected was insurance against usurpers and inability to command respect left one a target.  While respect was a complex issue, tied to innumerable considerations such as a mafioso’s friends, his paternity, his ability to keep the code of silence (omertą), or even the province from which he came, respect was predominantly a measure of reputation, namely a reputation for effectively wielding violence, or more particularly, murder.

Members’ lives outside the mafia bore no relationship whatsoever with their status inside the family; jobs or education were at most utilitarian pursuits.  Men who commanded the most respect, or the most honorable men, often labored in menial jobs in civilian life such as collecting trash or keeping a shop.  There is even evidence suggesting that the most successful mafiosos were usually poor businessmen who ran legitimate enterprises at loss.  Undoubtedly unpretentious work – some capofamiglia have been reported to work as janitors – served the function of diverting the attention of law enforcement.  But whatever the reason, a brother’s employment or education was no indication of his respect.  Within the mafia brothers were specialized; the family needed spies, thugs, hit men, salesmen, drivers, doctors, and lawyers.  And the capacity in which he served the family had some bearing on his respect.  Mostly, however, a man’s honor rose and fell with his repudiated ability to effect violence, especially murder.

Violence was the mafia’s stock-in-trade and he who had a reputation as a fearsome murderer was an “honorable” man.  That is, he commanded the most respect, and therefore power.  As mentioned earlier, Gambetta believes that violence was the means by which the mafia participated in the market for protection.  A reputation for murder allowed the mafioso to deter his client’s enemies; actual murder allowed him to punish them.  Paoli sees acts of violence as reflecting and affirming the ideological basis of the pre-modern contract: that nothing outside Cosa Nostra mattered, and that the interests of one’s brother are supreme.  Therefore the man who was most adept at affecting such ends was seen as both a loyal member and a deft leader.  A reputation as an accomplished murderer also accomplished other ends.  Completing murder without detection evinced the cunning necessary for leadership.  And hits against high-profile persons indicated bravery in the face of retribution, even bestowing upon the member an aura of invincibility.  Respect as a measure of quality membership was then tied, if not wholly, predominantly to reputation to accomplish violence, namely murder.

An honorable man enjoyed a reputation for being able to command violence.  This reputation, however, was not necessarily contiguous with his actual ability to perpetrate murder.  In fact many nonviolent acts can be viewed as attempts to cultivate a reputation for violence; a mafia boss’s iconic sunglasses have been traced to efforts to advertise himself as an emotionless killer.  It was therefore possible for a boss whose power had waned to maintain control through reputation alone.  The respect, deference and/or fear shown by lower members made resort to actual violence unnecessary.  And indeed periods of family stability have been premised only upon the reputation of the boss as honorable.  In all such systems, however respect qua reputation is eventually challenged and the leader is forced to play his cards.  These resulted in periods of unrest.  Whether real or illusory though, honor was the capital which ordered social relations, drove mafia activity and undergirded its government.

The Current Mafia and the Mafia in the Future: Shifting Values and Superordinate Structures

Born in the rural hills of Sicily in a milieu of weak or absent centralized government, the early twentieth century through the nineteen-fifties was the Golden Age of the Mafia, the epoch of fraternity, equality, mutual aid and placing the family first.  Mafioso assiduously observed persecutions as expressions of ideals in which they believed.  However, by the nineteen-fifties brothers had begun abandoning ideals of the older generation, preferring their own interests, namely economic interests.  Mutual aid has always been the nominal aim of the mafia, but in the last decades this has been the group’s purpose in name only.  Making money has unambiguously and completely supplanted nobler intentions.  Positions of power have been transformed into tools bent wholly toward this end.  In addition, encroaching globalization and a stronger Italian state have forced structural changes.  Thus the present mafia stands radically different than that of only seventy or eighty years ago.

The mafia “commissions,” superordinate governing bodies that operated above the family are a useful lens through which to view that changes that have penetrated the mafia.  A symptom and not a source, these commissions have been a product of their times rather than their cause, but represent those changes in both form and function.  The size of structural units was originally bounded by the principles of deep bonds of identity which connected a family; such intense connections were necessarily limited in number.  In the nineteen-thirties, commentators hotly speculated the existence of a Boss of Bosses, or Capo di Tutti Capi, one man who commanded all of Cosa Nostra.  But the practical constraints of the underlying philosophy made such a boss neither possible, practical, nor real.

As the basis for mafia camaraderie shifted toward economic achievement, however, superordinate bodies were organized to increase coordination, efficiency, and domination.  The first commission was the “Palermo Commission” (1957), constituted of the rappresentante, or bosses from each family in Palermo.  The commissions originally had two interrelated prerogatives: to regulate violence within the mafia by acting as arbiter in settling inter-family conflicts or prosecuting violations of mafia norms; and to regulate the use of violence outside the mafia, e.g. against police, officials, prosecutors, judges, politicians, journalists or lawyers.  Measures were taken to preserve ideals of union and parity and to ensure that no member grew too powerful: the Palermo Commission was forbidden a boss; it was to be held at a rotating location; and no rappresentante could remain for longer than a year.  And in the beginning the commission was as ineffective as it was collegial; its decisions were flouted with impunity.  But as greed percolated upwards to the bosses, the bulwarks of equanimity failed: powerful bosses bent on controlling the commission for their own economic gain stayed on as perpetual members and selected or controlled other members; meetings were held only in a few locations.  A majority of power often resided in one man. 

The second commission was a “Regional Commission” (1970) which gathered representatives from six of the nine Sicilian provinces (Messina, Siracusa and Ragusa had no mafia presence).  Like the Palermo commission, the regional commission was a forum for settling disputes among the provinces and approving violence; the commission was also charged with planning and coordinating economic and military activities.  The regional commission followed exactly the same track: members who initially held power in equal shares formed a mostly-ignored and ineffective group, but ruthless bosses eventually seized power, driven by the pursuit of personal ambitions for money and power[4]


Graphic: Superordinate Structures in Cosa Nostra

The Family (Cosche)

Headed by a boss called  capofamiglia (the head of the family) or rappresentante (the representative of the family).

Regional Commission – 1970s

Governed Families within all of Sicily

The Palermo Commission – 1950s

Governed Families within Palermo

Boss of Bosses (Capo di Tutti Capi)

One position that putatively commanded all of Cosa Nostra.  Never actually existed - nonexistent. 

 

While powerful bosses exerted power over other bosses, and some bosses have been so described, informants have confirmed that no such position formally exists.

 

This name has been given, de facto, to especially powerful bosses, e.g. Salvatore Riina.

 



In each case the myopic pursuit of money over one’s brothers – previously anathema to the mafia – drove the weakening of collegiality and the rise of autocratic leadership.  That is not to say those changes hampered the success of the commissions.  On the contrary as Paoli notes: “both assemblies progressively acquired further competencies… [and] became increasingly involved in the management of the economic and political resources of the whole association… facilitating the pooling of capital and the joint exploitation of channels and contacts.”[5]  Under the auspices of the centralized commission and through increased coordination, Cosa Nostra reaped larger profits by engaging in larger-scale opportunities in smuggling, racketeering and other pursuits.[6]  But the evolution of the commissions is perhaps the most tangible effect of the shift in mafia paradigms.  Though mutual-aid is still the proverbial “sign above the mafia’s door,” as an ideal it receives lip-service only.  The mafia’s golden age was market by loyalty, equanimity, mutual-aid and fraternity.  Today’s mafia is about the externalities of wealth and power.

The Mafia as a “Legal System”: Situating the Mafia in the Philosophical Landscape

            How, whether, or to what extent the mafia represents a “legal system” is to beg the insuperable morass of defining the bounds of a “legal system”.  That thinkers as old as Aristotle and as modern as Dworkin[7] have spilled oceans of ink over the subject reveals the complexity of the speciously innocent proposition of the mafia as a legal system.

The mafia certainly is founded on many of the philosophical indicia, and has many of the functional aspects of a legal system.  H.L.A. Hart believed that the sine qua non of a modern legal system was “Secondary Rules,” namely: Rules of Recognition, Rules of Change and Rules of Adjudication.  Quite apart from “Primary,” or substantive rules, e.g. “stop at a red light,” Secondary rules dictate how the system functions.  Rules of Recognition dictate how members conclusively determine the content of the Primary laws, e.g. Hammurabi’s written Code.  Rules of Change direct how Primary rules are changed, e.g. by majority vote.  Rules of Adjudication control how disputes in the law are resolved, e.g. the court system in the United States.  The mafia stood in a nebulous position between legal and pre-legal.  Strongest were its Rules of Adjudication: conflicts were taken to bosses, or later the commission.  And the rulings of the system were religiously enforced through violence.  In addition, subverting the primacy of the system by utilizing self-help always begot punishment.  However rules of recognition and change were less clear.  Writing anything was strictly forbidden (to protect the group) which precluded Rules of Recognition, but sources agree that members always agreed on substantive laws, and as later mentioned, police have discovered written lists of rules.  Regarding change, however, the mafia functioned according to what Roberto Unger calls “Customary Laws”: laws were gained or discarded by a slow process of sedimentation or erosion, rather than through formal process.  As Marc Bloch describes, “every act, especially if it was repeated three or four times, was likely to be transformed into a precedent – even if in the first instance it had been exceptional or even frankly unlawful.”[8]

            The fact that the mafia vehemently rejected state government, and the mafia’s own vast array of rigidly-obeyed primary rules are indirect evidence of legal system.  Cosa Nostra, our thing, was hermetically sealed against the state, ontologically separate.  This played out in two ways.  First, mafioso saw themselves as governed only by the mafia, not the state.  Like everything else outside Cosa Nostra, legitimate government was devoid of normative weight.  The decision to obey laws was utilitarian only: getting caught was expensive and endangered one’s brothers.  Second, secrecy and noncooperation was the watchword of the mafia.  The code of omertą (below) forbade any member from divulging even the existence of Cosa Nostra.  For decades scholars debated even the mafia’s existence though hundreds, if not thousands of men were currently members.  And noncooperation was total: if a member was prosecuted for a crime when he knew the real perpetrator, he couldn’t tell; nor could he report a crime he had suffered, for example having his car stolen.  In the place of state law the mafia relied on extensively developed and wide ranging primary rules which dictated actions, duties and attitudes.  Everyone knew the law because of the normative weight with which it was prescribed and the deadly force with which it was enforced.  Thus while the effective supplanting of the state with an alternative set of rules doesn’t prove a systematized modern legal framework, it is at least good evidence.

The Primacy of Honor: Philosophical Backstop and Incentive Structure

            As said earlier, scholars have approached the mafia phenomenon from multiple angles in an attempt to explain the mafia’s diverse and developed set of primary rules.  Early theories viewed the mafia as a development and radicalizing of traditional Sicilian values.  Diego’s Gambetta saw the mafia as a confederation of economic-rational monopolies united by a (brand) name and product (mainly protection).  Letizia Paoli viewed Cosa Nostra as a band of brothers bound by pre-modern contracts of fraternity which replaced a member’s individual interests with those of the group.

            Scholars agree however that whatever underlying attitudes explain the mafia’s primary rules, honor, or respect, was the capital which served as the incentive structure behind the mafia’s rules.  Primary rules were tied inextricably to, even synonymous with honor.  Paoli said that honor was a term of “multivocality” used descriptively to define the strictures of the mafia, but also proscriptively to dictate the acts of its members.  Honorable men obeyed the rules, and following the laws was honorable.  For example an honorable man held omertą (silence).  Conversely a man without honor failed to follow mafia edicts and failure to obey left a blotch on his honor.  For instance, maintaining a sexual liaison with a brother’s wife was dishonorable.  Of course honor was also tied to a mafioso’s reputed ability to command violence.  But in any case honor constituted the capital upon which members traded and therefore the incentive structure behind the mafia’s primary rules.

            It is useful to think of the mafia’s rules as falling into two categories: 1) ubiquitous, abstract principles that generally (though no less imperatively) guided a member’s decisions; and 2) situation-specific imperatives that controlled in particular situations.  Only two rules reside in the first category: the decrees regarding putting the family before anything else, and the code of silence.  Innumerable regulations inhabit the second category, directing everything from a mafioso’s relation with a brother’s wife, to permissible and impermissible rackets.  Behind any single command, indeed behind the whole legal system, however, sat honor as both backstop and incentive structure.

Ubiquitous Mafia Law: Placing The Family First, and Omertą

            Two principles were relevant in any and every situation in which a mafioso found himself.  First, a mafia brother must put the family before any other consideration, absolutely.  These included family, religion, his own life.  Second, was the code of silence and secrecy, called omertą.  Omertą was multifaceted in the particulars, but the foundational principle mandated that the mafia was not for outsiders.  Cosa Nostra was a secret society.  Discussing it with outsiders – even disclosing its existence – was strictly forbidden.  In every interaction, public or private, no matter the hour or circumstance, mafia members were bound to hold the family in the highest regard, and to keep silent regarding Cosa Nostra.  Punishment for violating these rules was usually death.

            Cosa Nostra – our thing – came before anything anterior to the clan, including the individual, his family, his religion, his morals, whatever.  One’s moral scruples, fear of death or love of one’s blood relations were never an excuse.  Gambetta explains this rule as a means for minimizing agency costs by aligning the principal’s and agent’s interests.  Paoli believes the rule stemmed from the nature of the pre-legal contract that bound the member.  In either case one must put putting the cosche first  Sometimes the implications of doing so were obvious; putting the mafia first meant that it was strictly prohibited to killl one’s brother, or even commit violence against him.  Whatever provocation one suffered from his brother, the conflict must be taken to the boss or the commission before retaliation.  The flip side was that a mafioso stood duty-bound to defend his brother, to come to his aid, even amidst overwhelming or impossible odds and even in the face of death.  As the pentito XX[9] observed, “one precise obligation… is to intervene to help the threatened associate, passing him the sferro or arma infame [knife or firearm] if he by chance lacks it, and to defend him is he is losing.”[10]

            Another obvious implication of the obligation to subordinate secondary considerations was that the mafioso was required to be constantly available for the mafia.  A mafioso was ever ready to drop everything to follow orders.   One directive in a list discovered by police in 2007 said, “Always being available for Cosa Nostra is a duty - even if your wife is about to give birth.”  Similarly, orders could never, ever, be questioned.  But other obligations were less obvious.  Putting one’s brother first decreed that when asked, the brother must tell the truth.  He was permitted to remain silent, but lying was placing the impetus behind the lie before Cosa Nostra.  Holding Cosa Nostra in the highest regard also extended to pecuniary matters; as the primary entity, a Mafioso was required to forward a percent of his revenue to the family, usually 15%.  Like a tithe this amount was owed absolutely; failure to “pay up” was the gravest flouting.  Also, when a brother asked, a mafioso was obliged to furnish him with whatever boon he requested.[11]  The economic implications of the rule were not limited to rank-and-file.  The boss gave support to fugitive members, paid the legal expenses of members on trial, bribed his way into short sentences for the accused, and supported the families of the imprisoned, or killed.

            Omertą, the second principle to which the mafioso was constantly beholden, was the code of secrecy.  Though stemming from a single concept of secrecy, it is convenient to consider two branches of omertą: silence and noncooperation with the state.  The former, silence, was the primary concern of omertą.  Silence was about protecting information including the identity of Cosa Nostra members, its activities, the symbolic and ritual aspects of the group, even its very existence.  Communication between members remained closely guarded to defend against accidental disclosures or subversive penetration.  While in the presence of outsiders, members could not discuss the family.  Further, brothers who needed to discuss Cosa Nostra with a member whom they had never met were forbidden from introducing themselves as such.  Only after an introduction by a mutual member-acquaintance who knew both men could they discuss Cosa Nostra.  Further, “mine” and “ours” was the lynchpin of introductions: a member said, “this is a friend of ‘mine,’” to signal that he was introducing a non-member.  But he said, “this is a friend of ‘ours’” to signaled that he was introducing a fellow member.  While seemingly extreme in its implications, such was the high regard in which the mafia held omertą. 

Silence was not only about surrendering information.  It was an attitude and capacity, a modus operandi of privacy and ability to keep silent under pressure.  A man who honorably held omertą spurned a plea deal to trade information, even in the face of an extreme jail term.  Silence as an attitude prized economy of locution as a sign of power and honor.  Silence also had an aspect of obfuscation, understatement and concealment.  Omertą taught members to conceal their power by minimizing signs of strength, e.g. by donning drab dress, living in assuming homes, and toiling in humble occupations.  Some of the most powerful bosses worked as janitors.  The most ruthless coordinators of murder and illegal rackets would pay deferential respect to public authorities. Finally, the attitude of silence also controlled the information for which a member could ask.  Asking as few questions as possible and only about matters with which he was concerned, and never, ever asking about a superior all followed from the paradigm of silence.

            The mafioso who followed omertą also did not engage or participate with the state.  As a barrier to the mafia’s supreme control to which it felt entitled, the state was anathema to the mafia .  Besides strategically intimidating or murdering state officials, members neither accepted benefits nor cooperated with the state.  This is not to say that the mafia engaged in a perpetual war with legitimate government; indeed the mafia could never hope to win such a war.  The state was instead simply a permanent fixture in the environment in which the mafia operated.  But as diametrically opposed players, omertą demanded that mafia members not cooperate with government.  Of course this meant that the mafioso did not report crimes though he knew the perpetrator.  But even when he himself was the victim, reporting crimes was strictly taboo.  Omertą even dictated that a member wrongfully accused of a crime could not reveal the true perpetrator though he might thereby avoid jail.  The mafia simply did not cooperate with the state for any reason.  The mafia dealt with the mafia’s problems.

            Omertą was necessarily not a binary matter as XX[12] notes.  Rather, the strictures of the code of secrecy varied in response to the cultural climate including the mafia’s relations with the public, the attention law enforcement was concentrating on the family, and other considerations.  Bosses relaxed omertą during the (frequent) periods in which the public considered the local cosche more legitimate or more efficacious in proving protection than the state (especially in the rural districts).  Omertą was also enforced more or less in proportion with the attention law enforcement was currently concentrating on the family.  During the famous Maxi Trial, the most famous multi-defendant trial against Cosa Nostra, bosses strictly enforced omertą even against members outside the law’s suspicion.  The strength of the mandate for secrecy was also a function of with whom the mafioso was interacting.  The mafioso stood in the center of a series  of concentric circles of secrecy.  Moving outward, the requirement of secrecy increased.  With one’s brother the code was lightest.  Second, the code of omertą was only slightly stricter against the avvicinati, or repeat cooperators who might even aspire to membership.  Those linked to the mafia by biology or marriage, usually wives and children were next.  After them however, the necessity for silence markedly increased.  Incidental cooperators were next, those without loyalty to the family.  Next came the non-affiliated local population, and then the world outside the local population.  Lastly, against explicit agents of the law the code of omertą applied most forcefully; cooperation with this group almost certainly meant death.

            The oath taken during the initiation ritual bound a mafioso to the mafia for life, including the two constant imperatives to hold the family above any other consideration, and to uphold omertą.  These rules were applicable in every and any scenario a mafioso might face, regardless of cost, from murdering a member of his biological family to refusing to cooperate with authorities.  These obligations were enforced by tying them to honor, the capital of the mafia, his rout to success in the cosche.  While these rules were probably the most important, a man’s honor relied heavily on a litany of scenario-specific edicts which guided his actions in important recurrent situations.

Circumstantial Mafia Law: A Complex Compendium of Code

            Life in the mafia was a learned activity of discipline and rules.  For instance, in 2007, Sicilian police confiscated in a raid a written list of ten rules[13]:

1. No one can present himself directly to another of our friends. There must be a third person to do it; 2. Never look at the wives of friends; 3. Never be seen with cops; 4. Don't go to pubs and clubs; 5. Always being available for Cosa Nostra is a duty - even if your wife is about to give birth; 6. Appointments must absolutely be respected; 7. Wives must be treated with respect; 8. When asked for any information, the answer must be the truth; 9. Money cannot be appropriated if it belongs to others or to other families; 10. People who can't be part of Cosa Nostra: anyone who has a close relative in the police, anyone with a two-timing relative in the family, anyone who behaves badly and doesn't hold to moral values.

The catalog of laws directed most situations in which a Made Man could find himself.  On first blush the extensive list of such rules seems impenetrable.  But members began learning and adhering to the rules as early in life and practicing constantly, their very lives studies of mafia code, norms, customs and conventions.  This assiduous study is explained by the indissoluble connection between these rules and honor.  It is not the goal to give a definitive inventory of the myriad case-specific rules, but only to give a sample from which their flavor might be acquired.

            Etiquette was strictly regulated because a man’s honor/respect was his most valuable asset.  Etiquette in meetings was controlled perhaps more closely than any other interaction.  Between mafiosi of differing families, conferences were called “sit downs.”  Mafiosi greeted one another with kisses on the lips and introducing visiting members required the form, “this is a friend of ours.”  Greetings carried substantial expressive weight: the right greeting showed respect for power, or conversely disrespect communicated an affront, insubordination or hubris.  Mafiosi of equal status sometimes called each other “compare;” inferiors call their superiors “padrino.”  Both are Sicilian for “godfather.”  The import of etiquette did not however mean that sit downs were carried out in boardrooms in three-piece suits: family meetings were always held in informal settings, for example the backroom of a member’s restaurant or on the sidewalk.  Even the most important decisions were made over dinner, in a man’s home, or other familiar setting.  Members from other families were even invited to the familiar environs to discuss the most serious issues.

            The strictures of etiquette described not only what a man must do, but also those acts outside the rules.  For instance, a member of Cosa Nostra could not involve himself with another man’s wife.  Nor could he form a liaison with a woman outside of marriage.  A Made Man was also absolutely and immediately required to extract justice (revenge in the form of violence) when victimized by a non-member.  Swift revenge protected his honor, and that of Cosa Nostra.  But when the perpetrator was also a Made Man, etiquette required him to first bring the issue before the family, the boss, or the commission, which then meted out an appropriate response.   Failure to follow procedure usually resulted in death.

            Specific rules also governed a man’s career in illegal rackets, from his ascent into the family, to his money-making schemes, to leaving the family.  Although acceptance into the cosche required bravery, loyalty and commitment, a mafioso’s son enjoyed a fast track to membership, partially because his father eased his acceptance, but also because his loyalty was nearly assured.  Once a member of a family, though, trading cosche was forbidden.  The rules also regulated a mafioso’s career after joining the family.  His illicit enterprises could not interfere with those of another member, even from a different family.  Cosa Nostra further categorically prohibited leveraging prostitution or drugs such as cocaine or heroin[14].  Doing so violated mafia ethics.  So was acquiring money by stealth, which was also banned.  If a mafioso was arrested, Cosa Nostra forbade pleading insanity to avoid jail – doing so undermined the brother’s honor and reputation, and that of Cosa Nostra.  Finally, a mafioso was bound to the mafia for life – death was the only exit.  Of course, if the mafia decided to liquidate one of its own, the rules required that the man appointed to accomplish the sentence would be a close associate of the condemned.

            Mafia rules even established a morality entirely unique to the mafia.    Extra-marital affairs and divorce were strictly immoral.  Mafia-brand morality also obligated a mafioso to safeguard the chastity of his females – his wife, sister, daughter – even if this required killing them.  In some sense a moral code is surprising since Cosa Nostra required acts anathema to traditional morality, e.g. murder or extortion.  In reality, though, the mandates of “morality” probably carried only normative force equal to any other rule.  Mafia morality then was only another aspect of the comprehensive compendium of constraints and obligations.  The notion of a mafia morality is interesting, though, in that it shows the extent to which Cosa Nostra endeavored to supplant a mafioso’s former life.  Granular rules, learned over a lifetime of observance and replication replaced the mafioso’s former life in toto, down to his inherent sense of morality.

            Learning to adhere to the rules constituted the work of a lifetime.  But the endeavor was aided by the fact that the rules were a systematized effort to turn the mafioso in image and fact into a man of honor.  The rules were a formula for achieving honor because they were precisely what the honorable man would do.  Learning such a Gordian knot of rules only to earn the respect of one’s peers may seem strange, but only until one realizes that the mafioso traded on, commanded or served, lived, and died, by honor.

The Law of Honor: Operating within Sicilian Cosa Nostra

Honor, or respect, was the central value undergirding the mafia legal system.  Honor defined the substance of the law, then impelled its use because honor was power.  Men pursued honor by cultivating reputations for violence, particularly murder.  And men bound themselves to Cosa Nostra law, even at great personal sacrifice, to achieve honor.  Scholars have proffered varied explanations for the use of honor as the mafia’s capital, from consequentialist to the more mythic.  Whatever the explanation, if one principle runs through the mafia legal system as a common thread, that would be honor.



[1] of which there are 46 in Palermo, the main city in Sicily

[2] Scholars have failed to provide any conclusive explanation for this intriguing antipathy.

[3]As this saint and these drops of my blood burn, so will I shed all my blood for the Fratellanza, and as this ash and this blood cannot return to their [original] state, so I cannot leave the Fratellanza.  I swear to be loyal to my brothers, never to betray them, and if I fail may I bun and be turned to ashes like the ashes of this image.  May my flesh be burned like this sacred image if I do not keep faith with my oath.  I swear to be loyal to the family, and if I were to betray it, may my flesh burn like this sacred image.  As burns this saint, so will burn my soul.”

[4] The developments in both commissions were accomplished by Salvatore Riina and the Corleonesi family.  These are interesting stories and Riina himself is perhaps the most accomplished man in mafia history.  But with these specifics we are not concerned.

[5] 57

[6] Mafia families remain the most salient organization unit.

[7] Ronald Dworkin, b. 1931

[8] p 131

[9] ??

[10] 81

[11] The abuse of this rule led to the status of a “Reserved Man,” mentioned above.

[12] ?

[13] Which was astounding because recording anything regarding Cosa Nostra in writing was strictly forbidden.

[14] Of course, in a period after the scope of this paper these because accepted schemes.  The money was simply too alluring.