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Legal systems very different from ours

Table of Contents

By David Friedman, Peter Leeson, and David Skarbek

Review notes

Friedman covers the legal systems of 13 societies. Each is covered quickly, focusing often on the incentives that allowed the system to work. As the introduction says:

The underlying idea is simple. All human societies face about the same problems. They deal with them in an interesting variety of different ways. All of them are grownups—there is little reason to believe that the people who created the legal systems of Imperial China, Periclean Athens, or saga-period Iceland were any less intelligent than the creators of the U.S. legal system. All of the systems should be taken seriously, each as one way in which a human society dealt with its legal problems.

There is a bit of repetition amongst chapters but the book is well structured.

For myself (mostly ignorant of all legal systems) it has been a good jumping off place for thinking about the subject, if only by allowing me to realise that our current set of institutions is somewhat arbitrary and not necessarily optimal. In fact there seem to be a lot of different stable sets of incentives that give somewhat similar outcomes (getting from 'here' to 'there' might pass through some rather horrible valleys of course).

For example, I took for granted that prison is the main form of punishment for serious crime, whereas corporal punishment and exile seem to have been the norm in a lot of cases (they are cheap after all).

Also interesting has been thinking about other societies that use unusual forms of law: comedians seem to control joke theft in a similar way to the embedded legal systems discussed in the book: using shunning or physical violence amongst themselves rather than the external legal system (probably too costly and hard to prove guilt!)

Highlights

Introduction

Loc: 66 The underlying idea is simple. All human societies face about the same problems. They deal with them in an interesting variety of different ways. All of them are grownups—there is little reason to believe that the people who created the legal systems of Imperial China, Periclean Athens, or saga-period Iceland were any less intelligent than the creators of the U.S. legal system. All of the systems should be taken seriously, each as one way in which a human society dealt with its legal problems.

1. Imperial Chinese Law

Loc: 85 The Chinese legal system originated over 2000 years ago in the conflict between two views of law, Legalist and Confucian. The Legalists, who believed in using the rational self-interest of those subject to law to make them behave in the way desired by those making the law, were accused by later writers of advocating harsh penalties

Loc: 89 Confucianists argued for modifying behavior not by reward and punishment but by teaching virtue. They supported unequal treatment based both on the unequal status of those to whom the law applied and on their differing relationships.

Loc: 95 The disagreement between Legalists and Confucianists to some degree resembles the conflict between 18th and 19th century British approaches to crime and punishment. The dominant view in the eighteenth century saw criminal penalties as deterrence, their purpose to make crime unprofitable. The dominant view in the nineteenth century saw criminals as victims of their own ignorance and irrationality, the purpose of penalties to reform them, make them wiser and better. That view was reflected in terms such as “reformatory” and “penitentiary” and associated practices. Both approaches survive in modern legal theory and modern legal systems.

Loc: 107 Laws originated as statutes proclaimed by Emperors and passed down from dynasty to dynasty; one source estimates that forty percent of the Qing code came from the Tang code, created about a thousand years earlier.

Loc: 187 The law code was designed to provide a specified punishment for every possible offense—the mission of the U.S. sentencing commission carried to the Nth degree. Despite the size and detail of the code, it failed to do so. Gaps could be filled by interpolation, with court verdicts taking a form such as “the offense is similar to XYZ, for which the punishment specified in the code is life exile at a distance of 2500 Li from the offender’s home province, but somewhat less serious. The defendant is sentenced by analogy to exile at a distance of 2000 li.”24 Where the offense could not be fitted into any category in the code, the court could find the defendant guilty of doing what ought not to be done25 or of violating an Imperial decree—not an actual decree but one that the Emperor would have made had the matter been brought to his attention.26 The underlying assumption was that people ought to know right from wrong without the assistance of the legal code, that the Emperor, and by delegation his officials, had unlimited power, hence it was proper to punish those who did wrong even if the absence of a specific legal rule against what they had done raised difficulties in determining the appropriate punishment.

Loc: 198 Another problem raised by a law code that attempts a complete mapping from offense to punishment is that there may be cases where the punishment prescribed by the code is clearly too harsh for what actually occurred, where the offense fits the letter but not the spirit of the law. An example might be a killing that, according to the law, required capital punishment but was due to an accident involving no fault in the person held responsible. One solution was to find the offender guilty of a capital offense but permit the penalty to be commuted by a fine.

> Short story: too poor to pay the fine for an accidental death. The system keeps trying to let him go but he ends up being killed despite everyone's best efforts? Candide-style comedy?

Loc: 208 One risk of putting so much power in one pair of hands was that magistrates might take advantage of their position to build local support and thus convert the empire, in theory a centralized bureaucracy, into a de facto feudal system, as tended to happen in the periods of breakdown between dynasties. Precautions to prevent that included forbidding a magistrate from being assigned to any district within his home province or within 165 miles of his native district,28 shifting magistrates from district to district every few years, and forbidding a magistrate from marrying a woman from his district or owning land in

> Sensible rules, created from centuries of experience

Loc: 240 Why? Why require the ablest men in the society to spend an extended period of time, often decades, studying to pass the exams instead of applying their skills to running the empire? Why test a set of skills with little obvious connection to the jobs those men were expected to do? One possible explanation is that the exams were the equivalent of IQ tests, designed to select the most intellectually able (and hardworking) members of the population for government service. But it is hard to believe that there was no less costly way of doing so or no approach along similar lines that would have tested more relevant abilities. A more interesting explanation focuses on the content of what they were studying—Confucian literature and philosophy. There are two characteristics one would like officials to have. One is the ability to do a good job. The other is the desire to do a good job—instead of lining their pockets with bribes or neglecting public duties in favor of private pleasures. One might interpret the examination system as a massive exercise in indoctrination, training people in a set of beliefs that implied that the job of government officials was to take good care of the people they were set over while being suitably obedient to the people set over them. Those who had fully internalized that way of thinking would be better able to display it in the high-pressure context of the exams. […] Perhaps selecting officials was not the main purpose of the system. Judging by the pass rates on the exam, for every student who got far enough through the system to have a significant chance of employment a large number, possibly several hundred, studied and failed at either the first or second stage. One could interpret that as a system for making sure that a significant fraction of the population, in particular of its upper classes, got indoctrinated in Confucian ideology.

Loc: 308 the rules for government officials and Manchus38 were different than the rules for ordinary commoners and those in turn different than the rules for groups of especially low status—and relative position within the extended family. All relatives were classified as senior or junior to each other. For two individuals at the same level of the family tree such as siblings or first cousins, the senior relative was the older. For two at different levels, such as first cousins once removed or uncle/nephew, the senior was the one at the higher level of the tree; an uncle was senior to his nephew even if the nephew was older.39 The closeness of the relation was defined by the rules determining for how long one was obliged to mourn the death of a relative, which depended on the relationship—longest for a parent, shorter as the relation became more distant.40 Relative status in turn affected penalties. For an offense committed by a junior relative against a senior relative, penalties were increased; for an offense committed by a senior relative against a junior, decreased.

Loc: 319 Imperial China had precisely the opposite approach. It was a criminal offense for a child to accuse his parent of a crime even if the parent was guilty, a capital offense if he was innocent.42 Under the Han, the first Confucian dynasty, “If a son did report his father’s crime to the authorities, he would receive the same punishment as his father because the son lacked filial piety, and the father reverence toward the government.”43 Like some other features of the legal system, the treatment of relations within the extended family can be viewed either as an expression of Confucian ideology44 or as a functional design feature. By the mid-19th century, the Qing were relying on a small bureaucracy of elite scholar-officials to rule a population of about four hundred million. 45 One way of doing so was to subcontract as much as possible of the job to authority structures such as the extended family.

> !

Loc: 358 An inferior was expected to obey orders from a superior to commit an illegal act but might still be liable for committing it, subject to two different authority structures, familial and legal, with penalties for disobeying either even if there was no way of obeying both.

Loc: 360 Another approach to dealing with the disproportion between the population to be controlled by the legal system and the resources commanded by that system was to discourage resort to law. One way of doing so was to treat most private practice of law as criminal. […] Another way of discouraging litigation was by making involvement with the legal system unpleasant for all concerned.53 It was legal to torture witnesses in the process of extracting information from them. Participants in the legal process were expected to act as humble petitioners, recognizing the vastly superior status of the officials they were interacting with.

Loc: 370 In general people tried to settle their differences as much as possible out of court, by effecting a compromise or by referring the case to one of the age-old organs of private justice, for example the council of the family—or clan-elders, or the leaders of a guild.

Loc: 376 The legal profession was not recognized in this land without lawyers. Most of all, the law was seen as a buttress of the personal relationships that should obtain in the family and lineage. The law expressed Confucian social norms. When they were being properly observed, recourse to law should be unnecessary.

Loc: 381 If the accusation was found to be false the accuser was subject to the penalty that would have been imposed on the accused if found guilty, a risk that might be avoided by making the accusation anonymously. That problem was dealt with in a straightforward fashion by Qing law: For an official to act on an anonymous accusation was a criminal offense, for an individual to submit an anonymous accusation a capital offense.

Loc: 401 The case was still criminal in form. The parties did not, as in a modern civil case, have the right to end it by an out-of-court settlement. They could, however, humbly request the magistrate to cancel the hearing. He was free to refuse but, with a heavy schedule of unresolved cases, unlikely to. A majority of village disputes were settled by either informal mediation not involving the court or bargaining after charges had been submitted to the court and the magistrate had commented on them but before the court session.62

Loc: 420 Like a modern American court judging a tort case, the Supreme Court was providing justice only between the parties. An Imperial magistrate, with a broader view of his obligations, would have arranged for the replacement of the heir selected by the widow with one who met the legal requirements. An Imperial magistrate dealing with a sufficiently tangled property dispute might resolve it by awarding ownership to neither party, converting the land to state property with its income dedicated to some good cause such as supporting a school. His job was doing justice. The plaintiff was merely the person who had brought an instance of injustice to his attention.

2. Romani Law

Loc: 482 Whether or not fifteenth century Romani obtained a grant of de jure judicial autonomy from a fifteenth century emperor, Romani communities through the centuries have been strikingly successful in maintaining de facto autonomy, staying below the radar of the official legal system while imposing their own rules on their own members.

> Unrelated note, the name 'Gypsy' comes from Egyptian, due to a mistaken belief they came from Eygpt. Romani is the plural of Romano, which comes from the word 'Rom', which means 'Man'.

Loc: 503 Marriage is by purchase, a payment from the family of the groom to the family of the bride. Payments are substantial, typically several thousand dollars as of 1970. While consent of bride and groom is required, it is up to a man’s parents to find him a wife and negotiate with her parents.

Loc: 506 Her parents retain the ability to cancel the marriage and retrieve their daughter; disagreement over how much, if any, of the bride price must be returned is a frequent source of conflict. The Romani term for the daughter-in-law, bori, is used not only by her husband’s parents but by other members of their household—she is their bori.

Loc: 520 Romania, the system of rules, can be grouped into two categories. One consists of ordinary legal rules covering the obligations of Romani to each other, including extensive obligations of mutual help, especially but not exclusively between relatives. If a member of the kumpania needs medical care and cannot afford it, other members are expected to take up a collection for the purpose.

Loc: 525 Obligations apply to fellow Rom not to outsiders, Gaje. Swindling or stealing from a fellow Romani is an offense to be dealt with and uncommon,76 swindling or stealing from an outsider comes under Romania only to the extent that it creates problems for other Rom.

Loc: 530 “Rom refers to a particular individual Romani man and romni to a Romani woman. Gadjo refers to a man who is not a Romani and gadji to a non-Romani woman. There is no word for all men and women. Human beings are either Roma or gadje.” (Sutherland 2017, 9) It is only a mild exaggeration to say that Romani view the non-Romani population not as part of their society but as part of their environment.

Loc: 535 […] two cases where a group of Romani acted in a way that offended the locals and then left; the locals responded by punishing a second group of Romani for the offenses of the first. The second group’s response was to claim damages via a kris, a Romani court, from the responsible parties—not the locals who attacked them but the first group of Romani.

Loc: 538 The second category covered by Romania is an elaborate system of purity and pollution, Orthodox Judaism on steroids.79 Its central tenet is that the human body is clean from the waist up, unclean from the waist down.

Loc: 541 different wash tubs are supposed to be used for men’s lower garments, men’s upper garments, women’s lower garments, women’s upper garments, children’s garments, and eating utensils—six in all.80 Contact with the unclean is polluting—“marimé”—and the pollution is contagious. Someone who is polluted will find others reluctant to associate with him, even to permit him to touch their possessions, providing an automatic enforcement mechanism for the rules against pollution and an incentive to go through the rituals required to remove it.

Loc: 553 The mechanisms by which the rules are enforced are feud and the threat of ostracism

Loc: 576 When one party to a conflict is unable to force the other to yield, an alternative approach is avoidance. The Romani are by tradition a nomadic culture; even those with a fixed address such as the inhabitants of Richmond are likely to spend much of their time on the road. A familia unable to resolve a conflict in an acceptable way has the option of leaving town and avoiding all contact with their opponents,

Loc: 590 The Rom say that marime means being ‘rejected’ from the Rom as a group and being ‘dirty’ or polluted. For the moment, it is the sense of rejection that is most relevant. When a person is declared marime publicly, whether by a group of people (such as families in the kumpania) or more formally in a kris romani (trial), he is immediately denied commensality with other Rom. Anything he wears, touches, or uses personally is polluted (marime) for other Rom, and he is generally avoided in person as his marime condition can be passed on to others. Marime in the sense of ‘rejected’ from social intercourse with other Rom is the ultimate punishment in the society just as death is the ultimate punishment in other societies. For the period it lasts, marime is social death.

Loc: 597 Ostracism is a way in which an embedded legal system, one that exists under the rule of a state with much greater resources of coercion than the community possesses, can function. Refusing to associate with someone is not illegal, so the marimé penalty can be enforced without coming into conflict with state law.

Loc: 606 Outside of the family structure, the Romani are strikingly unwilling to engage in hierarchical relationships. Men who work together in groups do it as partners, not employer/employee. When Romani find it necessary to work for the gaje, picking crops for example, they do it as day labor not long-term employees.

Loc: 622 [The Romanichal, the largest of the British Romani communities] A Romanichal who believes his rights to have been violated responds by demanding, with threats of violence, compensation. Both parties know that if rights as defined by the norms of that community have been violated the violator’s friends will be reluctant to support him, the victim’s friends willing to support him. That makes it in the guilty violator’s interest to offer compensation or, if unwilling or unable to do so, to remove himself from the neighborhood of the victim

Loc: 639 For Kaale feud, the relevant unit is the household, not, as among the Romanichal, the individual. All households are considered peers and there exists no mechanism above the household for peacefully settling disputes. Conflict within the household is settled internally in a society in which authority is centered in male elders. Violation of marimé rules leads to a loss of status and honor by the group whose member is responsible, providing an incentive to prevent such violations by enforcement within the household. The same is true for the Vlach Rom at the level of the vitsa.

Loc: 709 That the estimates range over almost an order of magnitude is not an accident. Romani do not wish to be controlled by gaje. It is hard to control people if you cannot count them and it is hard to count people when there is no one to one correspondence between person and name.96 Romani, at least the Vlach Rom, the largest and most studied group, treat a name used in dealing with outsiders as fungible, belonging to the extended family to be used by any member who finds it useful. By this tactic and others, modern Romani have made it difficult for the states that claim authority over them to monitor and control them.

Loc: 721 Anonymity and invisibility combined with intense secretiveness are keys to the ability of the Rom to adapt and survive in an alien culture. Most are not registered at birth, in school, in a census, or with draft boards. Outside police records and welfare departments officially they do not exist. Even when they do have a name officially registered, it is usually not their own, and they may claim to be Mexican, Indian, or anything else besides Gypsy.

3. The Amish

Loc: 733 Over the past century their population has expanded rapidly, due to the combination of a high birth rate, modern medicine, and a high retention rate; there were about 5000 Amish in 1920 and about 249,000 in 2010.

> vs US population as a whole which went from 106 million to 360 million or so.

Loc: 739 While subject, with a few narrow exceptions, to U.S. and Canadian law,104 the Amish have succeeded in maintaining their own systems of rules (Ordnung) and enforcing them on their members, ultimately by the threat of excommunication and shunning (Meidung). The details of what technologies may be used in what way depend on the Ordnung of the particular congregation.

Loc: 744 The basic unit of an Amish community is the congregation, typically of twenty-five to forty households; there is no higher level with authority over the individual congregation. Since the Amish are unwilling to build churches or meeting houses, the number of households in a congregation is limited to the number that will fit in a large farmhouse or barn.

Loc: 760 When a congregation becomes too large to fit in a house it splits, often along some convenient boundary such as a road or stream.

> ! spliting to keep the community small enough to work

Loc: 766 the Ordnung of an Old Order Amish congregation will forbid members from owning or driving automobiles or having a telephone in the house. Both rules encourage an inward focused social structure, with people interacting primarily with those close to them.

Loc: 778 The principle offered to justify many of the rules is that individuals ought to be humble, avoiding anything associated with pride, such as fancy clothing. For similar reasons, Amish are usually unwilling to be photographed. One effect of the rules is to create clear boundaries between ingroup and outgroup, since members are distinguished from nonmembers by dress and appearance.

Loc: 831 That final decision is whether to accept baptism and submit to the ordnung. Prior to the ceremony, ministers offer the young adult the opportunity to back out, telling him that “it is better not to make a vow than to make a vow and later break it …” A large majority, by one estimate four out of five, choose to take the vow.

> An actual social contract! Likely people are more able to stick to the rules if they chose it themselves, regardless of any pressure from their family and community to do so.

Loc: 846 If it is a dictatorship, it is a competitive dictatorship. A member who is sufficiently unhappy with the ordnung of his congregation as interpreted by its clergy is free to shift to a nearby congregation better suited to his tastes. Some congregations are, in effect, territorial sovereigns, so that changing congregations requires a geographical move. In other communities, especially where there are congregations with substantially differing Ordnungen near each other, it may be possible to shift allegiance with no shift of residence.120 A bishop whose interpretation of his congregation’s ordnungen is at odds with what the members want is not subject to impeachment or a recall election but could conceivably find himself with no membership.

Loc: 871 Perhaps for that reason, the Amish have done surprisingly well in their relations with the U.S. government. In 1955 Social Security became mandatory for self-employed persons. The Amish objected to participating, in part on the basis that they believed they were religiously obligated to take care of each other and should not be transferring that obligation to the state, in part on the grounds that insurance programs, which Social Security at least purported to be (“Old Age and Survivors' Insurance”), are “gambling ventures that seek to plan and protect one's fortune rather than yielding it to God's will.”125 Many refused to pay Social Security taxes, with the result that the IRS eventually began filing liens on farm animals and other assets. The conflict was only ended in 1965, when federal legislation exempted self-employed Amish from having to pay Social Security taxes, an exemption later extended to Amish employees in Amish owned businesses.

> Impressive!

Loc: 944 Reading books on the Amish, all positive, all written by sympathizers,137 one is struck by how dark their picture of the outside world is. It is a world where people spend most of their efforts in competitive endeavor and display, in keeping up with the Joneses, where lives are divided among the almost wholly separate circles of work, family, and church, where little meaningful happens or can happen, a world of boredom and alienation.

> Seems correct

4. Jewish Law: A Brief Account

Loc: 955 This chapter provides only a brief account, based mostly on one medieval source, Maimonides’ Mishnah Torah, and one modern source, Jewish Law: History, Sources, Principles by Menachem Elon.

Loc: 986 If judges, who were also legal scholars, disagreed about the meaning of the possibly ambiguous text, how were their disagreements to be settled? In a system that views law as the creation of a legislature, king, or court of last resort, the same authority that made the law can settle disagreements about it. That does not work for a legal system viewed not as created but as discovered, deduced from divinely inspired sources. […] A second problem was how to change the law. If legal authorities142 concluded that some of the divinely inspired rules were mistakes or had been rendered obsolete by changed circumstances, how could they be revised? The history of Jewish law is in large part the history of solutions to those two problems.

Loc: 1,085 One problem raised by legal diversity, starting in about the 13th century, was an argument that could be offered by the defendant in a civil case—a Kim Li plea. In order for the court to rule against him it had to be certain that he was guilty. Even if the facts of the case were clear, there might remain legal uncertainty. So long as at least two of the recognized authorities, living or dead, supported a reading of the law under which the defendant was innocent there was reasonable doubt, hence he could not be convicted.

Loc: 1,098 [A] second problem faced by a system based on a fixed and authoritative legal text is how to change rules unsuited to current conditions or add new rules to deal with issues not covered in the original. The biblical answer is clear: no commandment is to be removed, no commandment is to be added,154 the law must remain as God made it. The first and simplest solution to this problem was interpretation (Midrash). Much of the text was arguably ambiguous, so scholars could and did interpret it to fit what they believed it ought to say. Since the text itself authorized the scholars to resolve ambiguity by majority vote, they could reasonably claim that they were not modifying Torah but obeying it. Over time, elaborate rules of interpretation developed, some of which made it possible to read into details of the wording of biblical verses additional commands.

Loc: 1,109 Consider the case of the disobedient son. The Torah prescribes death by stoning for a son who defies his parents. Some legal authorities chose to read into the wording of the biblical verse requirements that could not in practice be satisfied―for instance that the mother and father bringing the accusation must have identical voices and be identical in appearance. Maimonides argued that a boy below the age of thirteen could not be held responsible, that a boy of thirteen might impregnate a woman, a fact that would be known in another three months or so, at which point he would be a father not a son, hence that the prescription could only apply to a boy aged more than thirteen and less than thirteen and a quarter.156 In his view, supported by a passage in the Babylonian Talmud, the combined effect of the restrictions that could be read into the biblical passage was that the stated rule never had been and never would be applied.157

> Really embracing the idea of using loopholes to avoid 'contradicting the word of god'.

Loc: 1,264 If he is willing to swear to his innocence in the prescribed form, Jacob's case is dismissed. If, however, Isaac is unwilling to swear, Jacob prevails; Isaac is found guilty and owes damages.181 Shift the facts to make Jacob’s case a little stronger, and now it is Jacob who swears and takes. If he is willing to swear that what he says is true, he wins the case. If he is unwilling to swear, he loses. […] A suspect party, one who is known to have sworn falsely in the past or to have violated any of various rules of religious law, is not permitted to swear and so loses in a case where his oath is required for him to prevail—provided that the other party is willing to swear.182 This suggests one way in which requirements such as the kashrut rules, rules determining what a religious Jew is or is not permitted to eat, may serve a secular purpose. Careful observance of such rules is evidence that the observer believes in the religion, since he is willing to bear substantial costs in order to conform to its requirements. The fact that he believes in the religion means that he will be reluctant to swear falsely, for fear of supernatural punishment. Hence the requirements provide courts with a lie detector, very useful in settling disputes.

Loc: 1,336 And if you think that is an odd problem to worry about, take a look at Maimonides’ elaborate discussions of the legal implications of circumstances in which it is unclear which child belongs to which mother. “If five women, each having an assured son, betake themselves jointly to the same secret place and there give birth to five other sons, who then become confused with each other; and if these confused sons grow up, take wives, and die, … .” 186 The context is levirate marriage, the requirement that the widow of a man who has died without issue be married to one of his brothers in order that he may father a child to be considered the son of her first husband. Avoiding the requirement requires a special ceremony to free the brothers from the obligation. If someone dies, and it is not known which of five different men is his brother, …

> Philosophers really love their thought problems don't they

Loc: 1,369 One interesting feature of these rules is that the thief owes compensation but does not receive any other punishment, except in the special case where he is a minor or slave. Not only is there no additional punishment, Maimonides describes situations where the thief has improved the stolen property and is entitled to compensation for doing so. Perhaps more surprising from the modern perspective, the penalty for a robber is merely the obligation to return what he has taken; unlike the thief, he does not have to pay twice its value.

> This does not seem correct, surely you want to have some punishment to account for the large number of uncaught thieves? Maybe this makes it more likely for the thieves to confess and give themselves up, returning the property?

Loc: 1,383 And, in a passage anticipating by seven centuries the principle of subjective value in modern economics: “How is pain assessed in a case where one has deprived another of a limb? If one cuts off another’s hand or his finger, we estimate how much more a person of his status would be willing to pay for having his limb removed by means of a drug than for having it cut off with a sword, should the king decree that his hand or his foot be cut off. The difference thus estimated is what the offender must pay for the pain.”

Loc: 1,423 En route to or from the city of refuge he could be killed by the avenger of blood without penalty.193 That looks rather like the remnant of a pre-existing feud system, untidily integrated into its replacement.194 We will see something similar in the next chapter, when we look at how murder is treated under Islamic law.

5. Islamic Law

Loc: 1,436 Strictly speaking, what traditional Islamic courts enforced was not Shari’a, God’s law, but fiqh, jurisprudence, the imperfect human attempt to deduce from religious sources what human law ought to be.196 That fact helps explain how Sunni Islam was able to maintain four different but mutually orthodox schools of law. There could be only one correct answer to what God wanted humans to do but there could be more than one reasonable guess.

Loc: 1,446 From the standpoint of a believing Muslim, while no society’s legal system enforced Shari’a, Shari’a was enforced in all societies at all times and places—by God not by man.

> (via punishment and reward in afterlife)

Loc: 1,450 To put the point differently, Islamic law is more nearly a system of morality than a system of law, since its rules primarily describe how one ought to act, only secondarily the legal consequences of action.

Loc: 1,505 Someone who wanted an opinion on a legal issue could put the question to a local mufti and be given a fatwa, an advisory legal opinion. Initially the mufti was expected to himself be a mujtahid, a scholar qualified to derive rules from their original sources. But by about the thirteenth century it had become accepted for someone to issue fatwas who was familiar with the doctrine of a legal school but was not himself a mujtahid capable of deriving it.

Loc: 1,511 It was not the mufti’s job to find out what had actually happened, only to report what would be the legal implications of the facts as described to him.

Loc: 1,512 The final actor in the progress from divine revelation to a functioning court system was the qadi, the judge. Unlike everyone above him in the chain, he was appointed and paid by the ruler. While it was desirable that he be an expert in the law it was not essential, since he could rely for the law on fatwas presented to him by the litigants or provided at his request by a mufti in response to questions about the relevant law. From the perspective of modern American law, the final two stages of the process look like our system turned upside down. In ours, the court of first impression applies the law to the facts and produces a verdict. If the case is appealed, the appeals court takes the facts as already decided and gives a second and authoritative opinion on the law. In their system, the opinion on the law came first, provided by the mufti, followed by the qadi’s application of the law to the facts as he saw them.

Loc: 1,551 While different schools were dominant in different areas, a medieval Muslim city could have had separate courts for the four Sunni schools, the Shia, and the other tolerated religions.208 It was a polylegal system; disputes within each community would go to that community's courts. Non-Muslims had to use Muslim courts for criminal cases but had choice of law for civil matters. In at least some times and places, parties creating a contract, a partnership, a marriage, could choose which school’s legal system they wished to create it under and would be bound to the rules of that legal system in any future dispute. What happened in a dispute between parties adhering to different legal systems is not entirely clear and probably varied across time and space. According to at least one authority, the most common rule was for the dispute to go to the defendant’s court.

Loc: 1,610 The breakdown of the traditional legal system may, as Hallaq argues, be due to the rise of the nation state, but the connection between that and western imperialism is accident not essence. The causes that led to the rise of the nation state in the west,214 the replacement of feudalism by absolute monarchy, operated in the Islamic world as well, most notably in the Ottoman Empire. The annexation of the waqfs by the Ottoman authorities parallels the earlier confiscation of the lands of the monasteries by Henry VIII. The result in both cases was to eliminate institutions that competed with the state for power and resources.

Loc: 1,653 Arguably the list of requirements is so extensive because legal scholars, like many non-Muslim commentators, regarded the punishment, amputation of the right hand, as excessive. Since the punishment was Koranic it could not be changed, but it could be hedged around with enough qualifications so that it was unlikely to be applied―the same approach that Jewish legal scholars applied to the rule about stoning a disobedient son. A theft that did not meet the requirements for the hadd offense could still be prosecuted and punished under ta’zir.

Loc: 1,709 Under Islamic law, marriage is treated as a contract. Husband and wife are legally distinct, each entitled to own property. The wife’s property includes the dowry agreed to as part of the marriage contract. Part of it is paid at the time of the marriage but part, sometimes a large part, may be due only after divorce or the death of the husband. Thus, while a husband is free to divorce his wife, doing so may be costly. A wife does not have the right to divorce her husband but can bargain for a divorce by offering to give up part of what he would owe her as a result.

Loc: 1,731 Maimonides offers a detailed account of how often a man is obliged to sleep with his wife, depending on his circumstances. “For men who are healthy and live in comfortable and pleasurable circumstances, without having to perform work that would weaken their strength, and do nought but eat and drink and sit idly in their houses, the conjugal schedule is every night. … for sailors, once in six months; for disciples of the wise, once a week, because the study of Torah weakens their strength.”

6. When God is the Legislator

Loc: 1,887 Another approach is for the people subject to the rules to work out, possibly with the help of legal scholars, ways of obeying the letter of the law while evading the spirit. That describes how people within Jewish, Christian, and Muslim systems dealt with the prohibition on interest common to all three systems. One way was by setting up a partnership contract in which one partner provided capital, one labor, and they shared the resulting profit. Another was to structure a loan contract to make the return uncertain, for instance by borrowing in one currency and agreeing to repay in another. The amounts could be set up to yield an expected return implying interest but not a guaranteed return. The issue still exists in modern day Saudi Arabia, probably the state closest to the traditional Islamic legal system. One solution there is for a bank to combine an interest free loan with a second transaction in which the borrower buys something, such as a car, from the bank, then sells it back at a lower price.

Loc: 1,895 Jews are forbidden to carry things on the Sabbath outside the boundaries of their courtyard. A courtyard is defined by the wall that surrounds it. A wall is still a wall even if it has doorways. Two telephone poles with a wire strung between them can, with a little effort, be interpreted as a doorway. String enough wire from pole to pole around your neighborhood and the entire neighborhood can be interpreted as a single courtyard, an eruv, making it legal to carry things around it on the Sabbath.

> Guys. You are missing the point

7. Pirate Law

Loc: 1,934 The average Caribbean pirate ship was crewed by 80 men, and the largest crews consisted of several hundred. This raises the question of how pirates, who, as criminals, could not rely on government to provide their crews law and order and had no compunction about murdering and stealing for private gain, managed to cooperate with one another to engage in piracy.

Loc: 1,966 Apart from the captain, who directed battle, the success or failure of a pirate crew in confrontations with merchantmen did not depend significantly on the participation of any individual crewmember, who therefore expected to earn the same sum whether he fought bravely or barely fought. This gave individual crewmembers an incentive to stay back in confrontations. But if many crewmembers did that, pirate crews could not take prizes.

Loc: 1,982 Each crew drew up and assented to its own set of articles, but since the problems that pirate crews confronted were similar, their articles were similar too.

I. Every Man has a Vote in the Affairs of Moment; […] III. No person to Game at Cards or Dice for Money. IV. The Lights and Candles to be put out at eight a-Clock at Night: If any of the Crew, after that Hour, still remained enclined for Drinking, they were to do it on the open Deck. VI. No Boy or Woman to be allowed amongst them. If any Man were found seducing any of the latter Sex, and carry’d her to Sea, disguised, he was to suffer Death. […] VIII. No striking one another on board, but every Man’s Quarrels to be ended on Shore, at Sword and Pistol. IX. No Man to talk of breaking up their Way of Living, till each shared a 1000 l.253 If in order to this, any Man should lose a Limb, or become a Cripple in their Service, he was to have 800 Dollars, out of the publick Stock, and for lesser Hurts, proportionately. […] X. The Captain and Quarter-Master to receive two Shares of a Prize; the Master, Boatswain, and Gunner, one Share and a half, and other Officers one and a Quarter.

Loc: 2,010 Article I establishes democracy as the crew’s collective decision-making rule for important affairs; more about this below. All crewmembers were permitted to participate in pirate democracy, including black pirates, who composed a substantial part of many

Loc: 2,030 Article IX addresses employment insurance. Pirates were not unionized. Nevertheless, they managed to establish a policy for which labor unions commonly claim credit: workers’ compensation. Pirates compensated crewmembers injured on the job out of the “publick stock.” After seizing a prize, but before paying shares, the specified sums were taken off the top and distributed to injured pirates according to the damages they sustained. Losing his right arm, for example, might entitle a pirate to more compensation than losing his left, reflecting the former’s higher value to pirates, most of whom were presumably right-handed. Such insurance reduced crewmembers’ incentive to stay back in violent confrontations with prey.

Loc: 2,039 A crew’s articles did not and could not anticipate or unambiguously address every legal issue it might encounter. Pirates’ solution to this problem was judicial interpretation: “in Case any Doubt should arise concerning the Construction of these Laws, and it should remain a Dispute whether the Party had infringed them or no, a Jury was appointed to explain them, and bring in a Verdict upon the Case in Doubt”

Loc: 2,054 Additionally, the quartermaster distributed booty and provisions per the terms of his crew’s articles and mediated conflicts between quarreling crewmembers, acting as “a Sort of civil Magistrate on board a Pyrate Ship”

Loc: 2,060 In conjunction with their articles, pirate democracy greatly restricted the scope for quartermasters to abuse their authority. By specifying legally proscribed behaviors and penalties for those who engaged in them, pirates’ articles clarified whether a quartermaster’s punishment of some crewmember was justified or instead an abuse of office. Armed with this knowledge, pirates could use the reward of election and threat of deposition to ensure that quartermasters faithfully executed their office’s duties—and no more.

Loc: 2,069 The modest scope of pirate captains’ authority was intentional. To avoid repeating their unhappy experiences as merchant sailors, pirates divided the authority traditionally concentrated in the office of captain between that office and the office of quartermaster, “so very industrious were they to avoid putting too much Power into the hands of one Man” (Hayward 1735, 42). Pirates’ idea was a now-familiar one: to constrain authority, it is useful to divide authority, enabling one office to “check and balance” the other.

Loc: 2,090 The institutional features of pirate law should sound familiar. They are more-or-less those of the American system of government: constitutional democracy, separated powers, and checks and balances. The reasons that pirates introduced these institutions on their ships should also sound familiar. They are more-or-less the reasons that America’s Founding Fathers gave in the Federalist Papers for introducing such institutions in American government: the need to empower authorities to facilitate the protection of life and property and the simultaneous need to constrain authorities so that they do not misuse their power.

Loc: 2,118 Banditry on the high seas was criminal, but being taken prisoner by persons who were engaged in banditry on the high seas and forced to do their bidding at sword point was not. Pirates exploited this loophole by pretending to conscript sailors who joined their ranks voluntarily. Since pirates actually did compel some men to join their companies, the impressment defense was plausible

Loc: 2,127 Some pirates took this idea a step further. They had witnesses to their ostensible conscription publish advertisements declaring it in popular newspapers. After being “forced on Board” a pirate ship captained by Bart Roberts, Edward Thornden, for instance, “desired one of his Ship-Mates … to take notice of it, and incert it in the Gazette”.

Loc: 2,148 Convicted pirates faced the same punishment—execution—whether they murdered resistant victims or not, and pirates’ superior manpower and firepower strongly favored their victory in violent conflicts with prey. Thus, pirates’ deadly promise was credible, and they followed through on it, advertising this fact to the seafaring community by releasing captives who spread word of their deeds. Consequently, most merchantmen were unwilling to resist pirates. To profit from this fact, pirates needed to ensure that their victims knew when they were being accosted by pirates rather than by coast guards. A victim could not discern its attacker’s identity from the appearance of its attacker’s ship; pirates and coast guards used the same vessels. But they did not use the same flags. With few exceptions, only pirates flew the Jolly Roger, which is precisely why they did so.

Loc: 2,159 there was no free lunch for pirate imitators. To act like a pirate was potentially to face the legal penalty for piracy. Those actually engaged in piracy already faced this penalty. But for those who only wanted to imitate pirates, the difference could be the hangman’s noose. Thus, pirates flew the Jolly Roger, and most coast guards did not.

8. Prisoners’ Law

Loc: 2,192 In California prior to the 1960s, the prisoners relied on a decentralized system known as the Prisoners’ Code, or simply the Code. The code contained the accepted norms of behavior for interacting with other prisoners.

Loc: 2,199 Those prisoners who adhered to these norms were known as “convicts” – prisoners in good standing. Those prisoners who consistently violated these norms, by contrast, were known as mere “inmates.”

Loc: 2,205 A deviant prisoner was subject to a range of possible punishments. Gossip and ostracism provided a relatively light, but important, penalty. Gossip and ostracism signal to other prisoners about who can be assaulted without repercussions. It tells predators which prisoners have no friends. Violators of the code might also be beaten, stabbed, or killed. These enforcements were not centrally directed. It was up to individual convicts to follow the Code, to choose to enforce deviations from the Code, and to choose to enforce the meta-norm of other convicts enforcing the Code.

Loc: 2,224 For the Code to operate effectively, prisoners had to be able to know the reputations of other prisoners. If prisoners could not easily know another person’s reputation, then violation of the code would not be deterred as easily. An ostracized prisoner could simply interact with other prisoners who did not know his poor standing. Likewise, prisoners are more likely to free ride on enforcing the Code in larger populations.

> See The evolution of cooperation

Loc: 2,229 While the Prisoner Code worked relatively well during this period, it began to break down because of changes in the prisoner demographics. Starting in the late 1950s and through the 1960s, the prison population started to grow more rapidly than ever before and rose to an unprecedented level. By 1970, it had increased fivefold. By the 2000s, the California prison population had grown to more than 170,000. Likewise, the number of prisons increased from five to 35 prisons. Since a prisoner today will often serve his sentence across multiple prisons, the growth in the number of prisons further increases the relevant population that a prisoner must interact with.

Loc: 2,235 Heterogeneity undermines decentralized legal systems because it confounds consensus. There is less agreement on what constitutes acceptable behavior, what constitutes a deviation from that behavior, and what the acceptable punishment for such a deviation is.

Loc: 2,258 When social and economic conflicts arise between gangs, rival gang leaders meet to discuss the conflict and seek a resolution. In practice, this takes place in several ways. For example, if a member of one gang is delinquent in a drug debt to another group, that prisoner’s entire gang is responsible for it. He may be forced to contact family on the outside to pay it off. The gang may pool their resources to pay it off. The gang may force the prisoner to work the debt off for the other gang; he may have to assault a prison guard or an enemy of the gang that is owed. Finally, the gang itself might assault their own member to the extent that it satisfies the shot caller of the other group that a message has been sent that this is not acceptable behavior.

Loc: 2,281 At times, this can be a brutal method of enforcing rules, but it is successful because it puts the cost of enforcement on those who can do so at the lowest cost—fellow gang members. Gang-based governance outperforms the Prisoner Code because it requires less information about other people’s reputations. It is easier to know the reputation of a group than to know the reputation of every member of that group. This is crucial in the large prison population that now exists in California.

Loc: 2,296 It would seem that the decline in racial prejudice in the outside world would correspond to a decline in racial prejudice within the prison, but that’s not the case. The puzzle is explained when one considers the increase in the prison population. In a society of strangers, the lowest cost way of identifying which group a person affiliates with is the color of his skin. Seeing a person is all it takes to have a good idea about who to complain to about his behavior. This ability to know which group is responsible for a prisoner’s actions without knowing that prisoner facilitates the community responsibility system. In a time of small prison populations, it was far easier to know other prisoners, so strict segregation was not needed as a way to economize on information costs.

9. Embedded and Polylegal Systems

Loc: 2,318 An embedded legal system faces the same problems as other legal systems but additional ones as well. It must find ways of enforcing rules on its population despite the fact that the ways in which legal rules are usually enforced, by force or the threat of force, may violate the rules of the overgovernment.

Loc: 2,321 If individuals are free to shift out of the population controlled by the embedded system, it must find some way of making it difficult or undesirable to do so.

Loc: 2,364 “Demands from school authorities that parents send their children to school, … usually are solved by an exodus of the family for as long as is necessary. It is surprising how well this technique works. A diligent truant officer has no authority or concern for a family once they have left town, and when they return he will generally have to begin all over again applying pressure to the family before threatening prosecution. Once the threat is made, the family takes off again.”

Loc: 2,484 A polylegal system raises no special problems as long as the disputes it applies to are intracommunal, and in most such systems most disputes probably were. The problem arises when a polylegal system must deal with cross cases, disputes between (say) a Maliki plaintiff and a Shafi’i defendant. One possible solution is for one system, perhaps the system of the ruler, to have jurisdiction over such cases, but there are others. The rule might, for instance, be that a case always went to the legal system of the defendant.298 Each pair of legal systems might have an agreement specifying the court to which disputes between them would go,299 although that still raises problems for a dispute with multiple parties adhering to more than two systems.

Loc: 2,492 The same issue exists in current U.S. law, which is in its own way polylegal. Each U.S. state has its own law. Most disputes have an unambiguous location in a particular state, but not all; consider the case of a customer in California who purchases a product produced in Massachusetts from a seller in Texas. What court gets to decide the resulting product liability dispute? U.S. legal theory includes an elaborate set of rules for solving such conflict of law cases.

10. Saga-Period Iceland

Loc: 2,521 Becker and Stigler suggested a simple alternative: Replace the salary of the policeman with a reward. When you pay a hundred thousand dollar fine or receive the equivalent prison sentence, I get a hundred thousand dollars. Now the only bribe I would be willing to accept is for at least a hundred thousand dollars, which would impose the proper punishment on you while saving the cost of a trial. Two prominent legal scholars, Richard Posner and William Landes, also at the University of Chicago, responded, pointing out issues that the first set of authors had failed to deal with, including the question of who had the right to catch a criminal and collect the reward.302 One possible solution was to make it a property right of the victim, a claim against the criminal. At which point, as Landes and Posner pointed out, Becker and Stigler had reinvented the tort system. Under tort law, as under the hypothetical version of criminal law, the victim has a claim against the offender, collected by an in-court conviction or out-of-court settlement.

Loc: 2,645 The political system they developed there was based on Norwegian332 traditions with one important innovation—there was no king. At the base of the system stood the goði (pl. goðar) and the goðorð (pl. goðorð). The original goðar seem to have been local leaders who built pagan temples and served as their priests. A goði received temple dues and provided in exchange both religious and political services. The goðorð was his congregation. The relationship between the goði and his thingmen (thingmenn) was contractual not territorial. The goði had no claim to the thingman's land and the thingman was free to transfer his allegiance.

Loc: 2,655 The one permanent official of this system was the lögsögumaður or lawspeaker; he was elected every three years by the inhabitants of one quarter, which quarter it was being chosen by lot. His job was to memorize the laws, recite them once during his term in office, provide advice on difficult legal points and preside over the Lögrétta, the legislature.

> Keeps laws small and relevant

Loc: 2,685 I have described the legislative and judicial branches of the Icelandic system but have omitted the executive. So did the Icelanders. The function of the courts was to deliver verdicts on cases brought to them. That done, the court was finished. For serious offenses, conviction meant full outlawry. The outlaw’s property was confiscated, part going as a damage payment to the victim or his heirs, part to support the outlaw’s dependents.

Loc: 2,691 It was legal to kill an outlaw, illegal to feed him, shelter him, or help him to leave Iceland. For somewhat less serious offenses, conviction meant lesser outlawry. A lesser outlaw had the right to leave Iceland340 and could return in three years. For still less serious offenses the punishment was a fine. If it went unpaid, the penalty was lesser outlawry if the fine was paid at the confiscation court, greater outlawry if it was not.

Loc: 2,695 Prosecution was up to the victim or his kin. If they and the offender agreed on a settlement, the matter was settled. Most cases in the sagas were settled out of court, usually for money damages, sometimes for lesser outlawry or greater outlawry with permission to leave Iceland. Many were settled by arbitration, including the two most serious conflicts that arose prior to the final period of breakdown in the thirteenth century. Calculations by two different scholars suggest that only about a tenth of cases went to a final judgment by the court.

Loc: 2,703 Icelandic law distinguished between killing and murder—secret killing. After killing a man, one was obliged to announce the fact immediately:342 It is prescribed that where men go only one way from a killing, then the killer is to publish the killing as his work within the next twelve hours; but if he is on mountain or fjord then he must do it within twelve hours of returning. He is to go to the first house where he thinks his life is in no danger on that account and tell one or more men legally resident there and state it in this way: “There was an encounter between us,” he is to state, and name the other man and say where it was. “I publish those wounds as my work and all the injury done to him; I publish wounds if wounds are the outcome and killing if killing is the outcome.”(G1

Loc: 2,713 Murder cost the killer the ability to raise legal defenses, such as the fact that his victim was an outlaw or had forfeited his immunity by attacking. Concealed taking in some circumstances had a more severe penalty than open taking.343 In addition, secret killing (murder) or secret taking (theft) was seen as shameful.

Loc: 2,717 In addition to the legal system based on goði and goðorð, there was a system consisting of groups of households called Hreppur. Unlike the legal system, it was geographically based, consisting of groups of neighbors, at least twenty households in each. Its functions included coordinating summer grazing, providing a system of mutual insurance for the members, allocating responsibility for local orphans and indigents and providing a forum for local disputes. The Hreppur were self governing. Not much is known about their internal structure.

Loc: 2,723 One possible objection to a system of privately enforced law is that the poor or weak would be unable to enforce their rights. The Icelandic system dealt with this problem by making the victim’s right to compensation transferable. The victim could turn over his case to someone else, either gratis or in return for a consideration.346 A man who did not have sufficient resources, in wealth or allies, to prosecute a case or enforce a verdict could sell it to another who expected to make a profit in both money and reputation by winning the case and collecting the fine.

Loc: 2,730 A second possible objection is that the powerful could commit crimes with impunity, since nobody would be able to enforce a judgment against them. Where power is sufficiently concentrated this might be true; that was one of the problems that led to the eventual breakdown of the Icelandic legal system in the thirteenth century. But so long as power was reasonably dispersed, as it seems to have been for the first two centuries after the system was established, this was a less serious problem. A man who refused to pay his fines or offer a reasonable settlement and as a result was outlawed would probably not be supported by as many of his friends as the plaintiff seeking to enforce judgment, since in case of violent conflict his defenders would find themselves legally in the wrong. If the lawbreaker defended himself by force, every injury inflicted on the partisans of the other side would result in another suit and every refusal to settle and pay would pull more people into the coalition against him.

Loc: 2,755 In order for a potential offender to be deterred, he has to believe that someone is committed in advance to act against those who wrong his potential victim. In Iceland this was done by a system of existing coalitions, some of them goðorð, some groups of friends and relatives. If a member of such a coalition was killed it was in the interest of the other members to collect wergeld for him even if the cost was more than the amount that would be collected; their own safety depended partly on their reputation for doing so. If the killer was unwilling to pay, it was in their interest to push the case through to outlawry and then do their best to kill the outlaw, even at some risk to themselves.

Loc: 2,764 the society provided effective credit arrangements. The same coalitions mentioned above provided their members with money to pay large fines.351 Third, a person unable to discharge his financial obligation could be reduced to a state of temporary slavery, debt thralldom, until he had worked off his debt. Convicted offenders had a strong incentive to find some way of paying for their offenses, since the alternative was thralldom or outlawry.

11. Somali Law

Loc: 2,912 “Few societies can so conspicuously lack those judicial, administrative, and political procedures which lie at the heart of the western conception of government. The traditional northern Somali political system has no chiefs to run it and no formal judiciary to control it. Men are divided amongst political units without any administrative hierarchy of officials and with no instituted positions of leadership to direct their affairs.”

Loc: 2,925 Elsewhere, especially in what had been British Somaliland and now calls itself the Republic of Somaliland,371 the traditional system of customary law reestablished itself. While Somaliland has a government— arguably created in part as a so far unsuccessful attempt to persuade foreign states of its legitimacy—it is a government based on traditional institutions with an upper house of clan elders and one that appears for the most part to defer to customary law privately enforced in the traditional manner, the same policy followed earlier by the British officials.

Loc: 2,958 The institutions through which the Somali enforce rights and settle disputes are based on two principles—kinship, primarily agnatic kinship (defined through the paternal line) and contract. Every Somali memorizes as a child his genealogy through the paternal line up many generations, an important piece of information since it defines his relationship to every other Somali. A clan, which may number in the hundreds of thousands, consists of individuals all of whom are believed to be descendants of a common ancestor in the paternal line, possibly twenty or thirty generations up. 376 The closer the linkage between two Somalis—the smaller the number of generations to a common ancestor—the more likely they are to be allies.377 “As the Somali themselves put it, what a person’s address is in Europe, his genealogy is in Somaliland.”

Loc: 2,972 The coalitions are not defined entirely by kinship. The nearest thing to a well-defined and stable unit below the clan level is what Lewis, following the practice of the British administrators, refers to as a “dia-paying group” (“dia” or “diya” is the Arabic term for blood money, the Icelandic wergeld; the Somali term is mag). The dia-paying group is responsible for paying for offenses by its members, collecting for offenses against its members, and, in the latter case, using force or the threat of force to obtain payment. It also deals with conflicts between its members.

Loc: 2,989 By Lewis’ account, the size of a dia-paying group is limited at the low end, about 300 males, by the need for enough resources to pay blood-money when necessary without an undue burden on any individual and for sufficient military power to enforce claims for payment of blood-money. It is limited at the high end, about 3000 men, by the problems of internal conflict—too many able and ambitious would-be leaders, situations where one of the component groups feels it is being unfairly burdened by payments for offenses by members of other groups, and similar problems.

Loc: 2,995 Somalis distinguish between general laws applying to all members of the clan and special laws applying to members of a particular group, in particular a dia-paying group. Special laws are established by explicit contract, general law seen as a set of broad principles with the application up to the particular judge; thus there are, in principle, no situations on which the law is silent. Decisions are to be based on customary practice. A sufficient number of consistent decisions may result in a rule followed by judges coming to be treated as a law; in this sense it is a system of informal case law.

Loc: 3,007 “A Somali judge is free to develop his own principles of law and his own doctrines. The test of whether such principles and doctrines are acceptable to the community comes as soon as he has given his verdict on a conflict. If a verdict deviates from what the community finds reasonable and just, there is little chance that its author will be asked again to sit as a judge.”

Loc: 3,026 The mechanics of trial and law enforcement as described by Van Notten are straightforward. When a dispute arises between members of different dia-paying groups the elders (oday) from each side form a court with themselves as judges, ask the parties to state their cases, hear witnesses and state a verdict. Judges may, before agreeing to judge a dispute, require the parties to agree, sometimes in writing, to obey their verdict. If force is needed to make the losing party obey the verdict in an intra-clan dispute, the judges can recruit all able-bodied male villagers for the purpose; anyone who refuses is considered an associate of the defendant and owes a fine to the plaintiff’s family. In the case of an inter-clan dispute, however, enforcement is up to the clan of the victim. What if no court is agreed on in time or the oday of one party’s family refuses to participate (particularly likely if the parties are from different clans), or the court fails to give a verdict? At that point the victim and his family are entitled to self-help, imposing restitution or compensation by force. If the other party believes that excessive force was used or excessive compensation extracted he is entitled to sue for compensation. Thus the Somali system is ultimately a feud system, one in which law is enforced by the private application of force or the threat of force, but a feud system with institutions for avoiding violence via widely respected mechanisms to arbitrate disputes.

> Using judges chosen from the elders of both clans avoids the issue when nobody agrees on which judge to choose for inter-clan artbitration

Loc: 3,055 If a fact is disputed, or supported by fewer than three witnesses, parties may be required to swear one of several different oaths to the truth of their position. One such oath consists of the oath-giver swearing by his marriage; if it later turns out that his oath was false, the marriage is dissolved.

> !

Loc: 3,065 For intentional murder, the penalty is a life for a life; if the murderer succeeds in fleeing abroad, a member of his family of equal status may be put to death in his stead, a rule that gives his family a strong incentive not to help him escape. In most cases the victim’s family can choose to accept blood-money instead at a rate of 100 camels for a man and 50 for a woman,

Loc: 3,074 Somali legal rules for bodily injury have one other interesting feature. If a man seriously wounds another, his family must take the victim into their household and nurse him back to health—the same requirement as in ancient Irish law.

Loc: 3,089 One odd feature of Somali customary law that is that a wealthy man is required, with detailed legal rules, to share his wealth with neighbors and relatives. Seen from one angle this can be viewed as a form of social insurance, from another as a disincentive to wealth creation.

Loc: 3,107 When a man of the Hassan Ugaas is murdered by an external group twenty camels of his blood-wealth (100) will be taken by his 'next of kin' (i.e. his sons, brothers, father, and possibly uncles) and the remaining eighty camels shared amongst all the Hassan Ugaas.

> Ensures the whole community has skin in the game

Loc: 3,111 Homicide amongst members of the Hassan Ugaas is subject to compensation at the rate of thirty-three-and-a-third camels,

> This number suggests to me that real camels are not used so much anymore!

12. Early Irish Law

Loc: 3,153 The Ireland described in the law books was divided into a large number of small kingdoms (túath, plural túatha); modern scholars estimate that there were about a hundred of them, with a population of a few thousand in each. A king might recognize the overlordship of another and more powerful king. A king who is overlord of three or four túatha is referred to as a great king, one who is overlord of a large number of túatha, the provincial king of the Irish sagas, is a king of great kings.

Loc: 3,159 For the most part, an individual had legal rights only within his own kingdom, although some special categories, such as poets and hermits, had rights elsewhere.

Loc: 3,164 Within the túath, individuals were divided into kin groups (fine), defined as the descendants in the male line of a common ancestor. The most important such was the derbfine, a kin group of four generations, the descendants of a common great-grandfather. Farming land was largely, although not entirely, held by the derbfine, allocated to its adult male members; an individual could sell part of his share only with the consent of his kin.410 He could obtain additional land with income from his share of the kin land, in which case one third of it would be entirely his, two thirds added to his share of the kin group land. If the purchase was made with income from his own exertions, half was entirely his, if income from his professional activities—blacksmith, poet, doctor or the like—two thirds. If the kin group went extinct, its land was redistributed within a wider kin group, descendants of a common ancestor farther up the genealogical tree.

Loc: 3,172 like the much larger dia-paying group in the Somali system, was responsible for enforcing the rights of its members, if necessary by feud, sharing in the payment of damage payments by its members and the receipt of damage payments to its members.

Loc: 3,193 Nemeds had a variety of legal privileges, limiting the degree to which legal rights could be enforced against them and the mechanisms for doing so. Thus the ordinary procedure for distraint, discussed below, could not be employed against a nemed, although the alternative mechanism of fasting against him to enforce an obligation could be. One consequence of the legal advantages of high-status persons, due to both their high honor price and their nemed status, was to make contracting with them risky, since it might prove impossible to enforce the contract, a problem pointed out in the period sources.

> Nemeds = Nobles

Loc: 3,228 Private contract law depended on a system of sureties, third parties with rights and obligations connected to the contract.413 If you lend me money, part of the procedure is for us to agree on a naidm surety, someone who is a witness to the contract and has agreed to compel me, if necessary by force, to fulfill my obligation.414 We may further agree on a ráth surety, someone who has agreed to repay you, with an additional penalty of a third the amount due, if, despite the naidm, I default—at which point I owe the ráth the money he has paid on my behalf plus additional damages. The ráth cannot go surety for an amount larger than his honor price. We may also agree on an aitire, a hostage surety, someone who agrees to surrender himself to you if I fail to pay and will eventually ransom himself back by making the payment plus an additional ransom payment, at which point I owe him for both plus an additional penalty that includes the aitire’s honor price.

Loc: 3,249 In some cases a contract was bound by a mutual exchange of pledges. This raises a puzzle; if you claimed that I had defaulted and seized my pledge, could I respond by seizing yours? One possible answer is that, as in the case of hostages more generally,417 the pledge was something of more value to the person who gave it than to the person who held it, hence mutual forfeiture could leave both parties worse off. That fits some descriptions in the sources of what sorts of things were suitable for pledges but not all. Possible pledges included a champion’s weapon and an embroideress’s needle but also cattle, horses, drinking horns,

Loc: 3,277 There was a different procedure if the defendant was a nemed: fasting, which seems to have been a sort of ritualized hunger strike. Details are not clear, but apparently the plaintiff fasted outside of the nemed’s house, possibly from sundown to sunrise, which would cover the main evening meal. While the fast continued the nemed was not entitled to eat until he had satisfied the claim by giving a pledge or appointing a ráth surety; if he ate without doing so, he owed double damages. In that case, at some point after the fast the claimant was entitled to distrain property to satisfy his claim.

Loc: 3,293 Under Irish law, the party responsible for a wrongful injury was required to maintain the victim in the style to which his rank entitled him, including an appropriate retinue of attendants, to provide medical services and to provide him with an environment suitable for an invalid—no loud noises or children playing in the house. The obligation began nine days after the injury, until which time he was cared for by his kin, and continued until he was healed. According to at least one source, the practice was abandoned fairly early in favor of a monetary penalty.

> I imagine it did not work especially well..

Loc: 3,321 The first step in a law case was for the plaintiff to publicly announce that an offense had been committed. Once the case commenced, it was up to the plaintiff’s hired advocate to decide which of several possible legal procedures to pursue. The next step was for plaintiff and defendant to each give either a pledge or a surety, depending on the path chosen, to guarantee that he would abide by the verdict. The judge was also required to give a pledge—five ounces of silver—in support of his judgment and owed a fine of eight ounces if he left a case undecided. A judge who acted unjustly, for instance by giving a verdict after hearing only one side of the case, lost his honor price and his position as judge; such a miscarriage of justice was also supposed to bring supernatural punishment down on the túath where it occurred.

Loc: 3,347 As in other early legal systems, someone accused of an offense could offer to prove his innocence by submitting to an ordeal, such as plunging his hand into boiling water. If the hand thereafter showed marks of scalding, the defendant was held to be guilty, if not, innocent.425 A dispute could also be settled by a formal duel, analogous to the Norse holmgang. The terms had to be agreed to by both parties and confirmed by sureties on both sides. As in the Norse case, the duel did not have to be to the death.

13. Comanche, Kiowa and Cheyenne: The Plains Indians

Loc: 3,360 Moderns often view primitive societies as having followed the same pattern of life for century after century. If they were capable of change surely they would have progressed, become more like us, ceased to be primitive. The Plains Indians provide a striking counterexample. Their immemorial lifestyle was a brand-new invention when Europeans first came into substantial contact with them. The reason it was a new invention is that hunting buffalo from horseback requires horses. There were no horses in America until the Spanish brought them and none available to North American Indians until enough time had passed for horses that had escaped the Spanish to multiply in the wild and spread north.

Loc: 3,366 Faced with a sudden opportunity for progress, the chance to stop scratching in the earth as primitive agriculturalists and turn into noble savages hunting buffalo, living in tipis and proving their manhood by making war on each other, the Indian tribes living on or near the Great Plains seized the opportunity.

Loc: 3,379 I start with the Comanche; their government is the simplest of the three to describe, since they did not have one. A Comanche war chief was simply an entrepreneur, a warrior who announced his intent to go steal horses from the Mexicans, Americans, or some other tribe, and invited anyone interested to come along. […] The Comanche, in other words, were anarchists. Their social system included institutions for coordination at the level of the individual band but nothing we would recognize as a government over either the band or the entire tribe.

Loc: 3,392 One of the problems that concerns modern anarchists is how to defend an anarchist society against adjacent states, given the difficulty of raising and funding an army without a draft, taxation, feudal obligations, or something along similar lines. The Comanche reversed the situation, raising the problem of defending adjacent states, and anyone else in the neighborhood, from them.

Loc: 3,398 Part of the reason, seen from an economist’s perspective, is that they made warfare into a private rather than a public good. For most of their history, the incentive to fight was not the welfare of the tribe but of the individual warrior. Successful raids produced valuable loot. Heroic and successful fighting produced status.

> Q: is it the case that fighters motivated by self interest are more effective than those motivated by the welfare of the community? Hard to pick apart, salaried soldiers have no incentive to put themselves in harms way if they can avoid it, so it would need to compare with people who can only get a reward from their personal killings.

Loc: 3,407 Wife stealing was done openly, so guilt was not an issue. Compensation was. The husband was expected to confront the wife stealer and demand generous compensation, with the amount an increasing function of the wealth of the stealer and the prowess of the husband, a decreasing function of the prowess of the stealer. There being no government to enforce the (unwritten) law, the threat that backed the demand was the private use of force. Pay or I will kill you. Carrying out that threat was neither desired nor likely, since if the husband killed the stealer (or vice versa) the victim’s kin would take revenge by killing the killer. The intended result of the threat was to set off the game that economists call bilateral monopoly, a bargaining game in which the parties have a common interest in the resolution of their dispute but a conflict over the terms, in this case over how much will be given in compensation to the wronged husband.

Loc: 3,419 What if the husband had no brothers? His option then was to find a champion, a brave, generous, well-thought-of warrior willing to take over the case and face down the stealer. This time the damage payment went to the husband. The champion’s payment was the status gained by his willingness to risk himself in defense of the right and his success in forcing another warrior to back down.

Loc: 3,431 As far as minor theft was concerned, the Comanche, like the other two tribes I will discuss, regarded such matters as beneath the notice of a warrior. As a Cheyenne would have put it, “if you had asked, I would have given it to you.”

Loc: 3,434 in their own terms, they were wealthy. Men frequently had more horses than they themselves had use for and so were free to use the surplus to prove their generosity by giving some away.

Loc: 3,437 As already mentioned, a first killing required a second, of the killer by the kin of his victim. At that point the matter ended. The second killing was justified by the first and so required no further vengeance. For these purposes, killing a favorite horse, thought of as having a soul, counted as murder and so justified the killing of the responsible human in revenge.

Loc: 3,475 The entire tribe, possibly as many as four thousand people, gathered together in a single camp in summer when food was plentiful. During the winter the tribe separated into much smaller bands and dispersed in search of game. The summer encampment was the site of the Council of Forty-four, the government, or perhaps nascent government, of the tribe. It was a self-perpetuating body; how the original members were chosen is not known. Every tenth year the Council was renewed. Each existing member chose a successor, usually from his own band. A chief could not succeed himself but could be kept in the Council if another chief was willing to name him as his successor.

> Cheyenne

Loc: 3,520 The account has several interesting features, consistent with other such accounts. To begin with, the punishment of offenders consisted of whipping them and destroying their property. On the face of it, the latter seems a wasteful form of punishment. Why not replace the destruction by a fine, seizing the property and using it for the good of the tribe or perhaps the soldier society that, in this case, was enforcing the rules? One possible answer is that making punishment profitable invites excessive or unwarranted punishment,446 the same problem that Athenian law attempted to solve by combining a profitable punishment with a penalty for unsuccessful prosecution, to be described in chapter 16. It might be a particularly serious risk in a system as unstructured as the Cheyenne. […] The second interesting, and to us odd, feature of the story is the replacement of the killed horses and one of the destroyed guns by the enforcers. By not trying to evade capture, offer arguments in their defense, or resist the destruction of their property, the two boys were implicitly conceding the authority of the tribal rule they had violated. Once they had done that they were, in effect, readmitted to respectability—and since young men obviously couldn’t be left on the prairie, just before the hunt started, without horses or guns, horses and a gun were generously donated by members of the same group that had imposed the punishment. It is unclear to what degree the rules controlling the buffalo hunt were designed to kill buffalo as effectively as possible, to what degree to establish the authority of tribal rules.

Loc: 3,602 Grinnell’s is a broader partisanship. He is describing people he knew well, some of them close friends, and he wants his readers to end up sharing his high opinion of them. Hence when I find an element of their system that a modern reader will strongly disapprove of, the very rare practice of “putting a woman on the prairie,” gang rape as a punishment, described only in the later book,452 I suspect that its omission by Grinnell was deliberate.

Loc: 3,618 It is reasonably clear from the earlier sources that the Comanche routinely killed most adult male captives, often torturing them to death, frequently mutilating their corpses. Adult female captives were subject to gang rape, followed by slavery, followed by forced marriage in a society where wives had very limited rights.453 That picture comes through in only a muted form in Wallace and Hoebel’s account

14. Feud Law

Loc: 3,643 We have now seen a number of societies in which law enforcement was private and decentralized.456 That pattern, although strange to us, is historically common.457 It seems likely that in many, perhaps most, societies it was the original legal system on top of which later systems were constructed. I call it feud law.458 Its logic is simple. If you wrong me, I threaten to harm you unless you compensate me.

Loc: 3,649 My threat to harm you must be more believable if you have wronged me than if you have not. 2. There must be ways of making it likely that I will carry out my threat despite the risks. 3. There must be ways of enforcing the rights not only of the strong but of the weak. 4. There must be ways of terminating feud, preventing the pattern of continued back and forth violence that the word suggests to the modern ear. All of these problems must be solved for feud to provide an adequate mechanism to enforce law. All have been solved in real-world feud systems.

Loc: 3,681 The corresponding mechanism in humans is vengefulness. When someone has wronged you, you very much want to get back at him, even at some risk to yourself. Considered ex post, after the fact, it looks like an irrational passion, one that can quite easily get you killed. Considered ex ante, it may well be a rational commitment strategy, hardwired into us by evolution. That you will revenge yourself against anyone who wrongs you, even at considerable cost to yourself, is a reason not to wrong you.

> See also Anger

Loc: 3,685 Human societies provide other commitment strategies as well, most obviously reputation and status. Your failure to carry through on your threat, to revenge yourself on one who has wronged you and refused to pay compensation, marks you as a wimp. Being known to be a wimp lowers your status. It also marks you as a safe target for future wrongs.

Loc: 3,699 The Icelanders solved that problem by making claims for damages transferable. The elderly man who knows that if he tries to prosecute his claim himself he is likely to be beaten up on his way to the court transfers the claim to a friend or neighbor who can enforce it.

Loc: 3,702 The Somali had a different system. The individual is a member of a dia-paying group, a coalition formed in advance. If he is wronged, the other members of the group are entitled to part of the damages.

Loc: 3,721 Anglo-American common law. It evolved out of Anglo-Saxon law. Anglo-Saxon law, at least prior to its final century, was essentially Icelandic law plus a king. The king claimed that some offenses were violations of the king’s peace, hence that offenders owed damages to both him and the victim. Expand that approach enough and eventually the exception swallows the rule, converting all crimes into offenses against the crown alone.

15. England in the Eighteenth Century

Loc: 3,794 Prosecution of almost all serious criminal offenses was private, usually by the victim.472 Intermediate punishments for serious offenses were strikingly absent. It is only a modest exaggeration to say that, in the early years of the century, English courts imposed only two sentences on convicted felons. Either they turned them loose or they sentenced them to hang by the neck until dead.

Loc: 3,801 England in the eighteenth century had no public officials corresponding to either police or district attorneys. Constables were unpaid473 and played only a minor role in law enforcement. A victim of crime who wanted a constable to undertake any substantial effort in order to apprehend the perpetrator was expected to pay the expenses of doing so.

Loc: 3,806 In eighteenth-century England a system of professional police and prosecutors, government paid and appointed, was viewed as potentially tyrannical—worse still, French.

Loc: 3,821 a free pardon for a criminal whose testimony resulted in the conviction of two others provided an incentive for a member of a criminal gang to betray his associates. Rewards also encouraged thieftakers, private investigators who supported themselves by public rewards for convicting thieves, private rewards offered by victims, and rewards for the recovery of stolen property. Jonathan Wild, self-appointed Thieftaker General, supported himself for a decade by a combination of revenues from thieftaking, rewards for the recovery of stolen property, and income from the large-scale employment of thieves. He was convicted and hanged in 1725 but lived on in fame as the central figure of a book by Defoe and, in the persona of Mr. Peachum, of Gay’s Beggar’s Opera.

Loc: 3,833 Thief-takers constantly attended the Old Bailey proceedings to become familiar with the persons who regularly appeared in the dock, from whom they chose people to give false information about. There was a common saying that anyone discharged from the Old Bailey was bound to reappear after a Session or two. Such persons were befriended by the thief-taker’s accomplice, and led into further crime (or indeed the accomplice would commit the robbery himself), for which they would be subsequently sworn against. After the robbery, the confederate and his companion would meet in some pub in Black Boy Alley or Chick Lane, where the thief-taker with some further assistants would arrive and apprehend both of them. When they were carried before a Justice, the thief-taker would get his secret confederate admitted as an evidence and the poor dupe would be convicted; the reward would be shared between the thief-taker and the confederate. Subsequently the confederate would become a thief-taker in his turn, using another confederate to ensnare another innocent dupe.

> The two places named were known criminal hangouts, Black Boy Alley faced onto the river Thames. Chick Lane still exists, but is nice now.

Loc: 3,857 Dissatisfaction with the perceived problems of private prosecution and concern with what was perceived as a high and rising crime rate eventually led to the introduction of paid police forces, first in London in 1829 and later elsewhere in England.481 The police took over from the private prosecutors much of the cost of locating and convicting criminals. The result, by the end of the nineteenth century, was a system where most prosecution was nominally private but where the private prosecutor was usually a police officer.

Loc: 3,877 Offenses fell into three categories according to their possible punishment: minor offenses (mostly misdemeanors482), clergyable felonies, and non-clergyable felonies. Minor offenses such as petty larceny, theft of goods worth less than a shilling, typically received punishments designed largely to shame the offender such as public whipping or exposure in the stocks.

> Bring back whipping

Loc: 3,881 In addition to offenses that might be expected to be prosecuted by the victim there were what we would classify as victimless crimes, in particular vagrancy, prostitution, and begging. Constables or members of the night watch were supposed to arrest those guilty of such offenses, bring them to a magistrate, and receive a small reward for doing so. The usual penalty was a brief period of confinement at hard labor.

Loc: 3,885 Benefit of clergy originated as a legal rule permitting clerics charged with capital offenses to have their cases transferred to a church court, which did not impose capital punishment. “Cleric” came to be defined as anyone who could read, usually tested by having him read a specific verse from the Bible, known for that reason as the “neck verse”—memorizing it could save a defendant’s neck.

Loc: 3,893 branding on the thumb may have originated as a device to identify those who had pled clergy once and so could not do so again. But this restriction does not seem to have been enforced very often. In theory, being convicted of a felony was supposed to result in forfeiture of property and land, with land being restored to a felon who pled clergy and was branded,486 but that also does not seem to have been enforced. Presumably the brand had some stigmatizing effect. That, plus the costs borne by the defendant prior to his conviction,487 seems to have been at some periods the only penalty actually imposed on most of those convicted of a clergyable offense.

Loc: 3,902 Manslaughter, for example, was a clergyable felony. Its definition included many offenses that we would define as murder. A killing in a tavern brawl, even if done with a deadly weapon, was manslaughter as long as there was no evidence of premeditation or previous enmity. The killer was allowed to plead his clergy, branded on the thumb, and released.

> Wow

Loc: 3,920 The second period of transportation began in 1718. This time the government made no attempt to charge merchants for the privilege of transporting convicted felons, instead offering a subsidy of £3 per transportee. On those terms transportation was profitable. The system was continued until the American Revolution removed most of the places to which transportees were being sent from the authority of the crown.492 After 1776, a variety of temporary measures were used to deal with prisoners who would otherwise have been transported. Some, confined in hulks moored in the Thames, were used as convict labor for work on improving the river. Others were held in jails. None of these expedients proved satisfactory and they were eventually replaced by transportation to Australia. At about the same time, there were attempts to expand and regularize the use of long-term imprisonment. While initially frustrated by the unwillingness of local governments to build the necessary facilities, such attempts were ultimately successful.

Loc: 3,932 The result was a legal system in which the only punishment for some capital offenses was a branded thumb while for many others the only punishment a judge could impose was hanging.

Loc: 3,940 In some cases the verdict was clearly an act of “pious perjury” by the jury. The fiction was clear when a jury found a defendant guilty of stealing from a house goods of value 39 shillings although the goods included more than that in cash; 40 shillings was the value that would make the theft non-clergyable.

Loc: 3,952 Multiplying the fraction of those indicted for capital offenses who were convicted of them by the fraction of those convicted who were hanged, in Beattie’s sample the fraction of defendants charged with a capital felony who were actually hanged was less than 16%.

> The 'expected punishment' is then 0.16 * death

Loc: 3,959 Toward the end of the century there were proposals to expand the use of confinement as a punishment and some efforts begun in that direction.

> Strange how natural prison seems now as a punishment, and how distance corporal punishment feels

Loc: 3,988 One solution was reputation. A merchant who expected to be a frequent target of theft might prosecute one thief to assure others of his resolve. But most potential victims would be lucky to catch one thief in a lifetime. How could they commit themselves in advance so that potential thieves would know they would be prosecuted? The solution was to join an association for the prosecution of felons. Most such associations consisted of between twenty and a hundred members, all living in the same general area.505 Each contributed a fixed payment to a common pool, money that could be used to pay the cost of prosecuting a crime committed against any member. The list of members was published in the local newspaper. […] I interpret their main function not as insurance but commitment. By joining such an association, a potential victim committed himself to prosecute. The money had already been paid out.

Loc: 4,008 One answer popular at the time was that prosecutors were motivated by a desire for vengeance. Another possible answer is that prosecution was sometimes a necessary step towards recovering stolen property.509 Another is that prosecutors began prosecutions in the hope of being paid not to complete them. […] Viewed from this standpoint, cases that went to trial represent failures, not successes, of the system. As a rule, the loss to the criminal of being hanged or transported was considerably greater than the resulting gain to the prosecutor. Between the two values there was a bargaining range. Sometimes bargaining would break down, perhaps because of differing opinions concerning the probability of conviction or the assets available to the defendant, perhaps due to mutual stubbornness in trying to get the most favorable possible outcome. But under normal circumstances, if my conjecture about how the system worked is correct, some payment in cash or kind, offered by the defendant himself or others on his behalf, would be agreed on.513 That payment would punish the defendant, reward the prosecutor, and compensate the victim if, as was usually the case, the victim was the prosecutor.

Loc: 4,049 One advantage of such institutions, compared to either civil law or criminal fines, was their superior flexibility. The fine was determined not by the court's estimate of what the defendant owed or could pay but by bargaining between the parties most immediately concerned.

Loc: 4,077 One argument for the latter view is that those with more resources were better able to prosecute crimes committed against themselves. That is surely true, although writers on the other side of the argument have offered evidence that many private prosecutors were ordinary members of the working class. But what both sides have missed is the tendency of the system to discriminate in favor of poor criminals and against rich ones.

> Since you can ask a rich criminal for more money to drop the case

Loc: 4,109 In considering the choice among alternative punishments, a useful concept is punishment inefficiency: the ratio of punishment cost to amount of punishment.524 A costlessly collected fine or damage payment has an inefficiency of 0; what one person loses another gets, so no net cost. Execution has an inefficiency of about 1; the criminal loses his life and nobody gets one.525 Imprisonment as practiced in modern societies has an inefficiency considerably greater than 1. The criminal loses his liberty, nobody gets it, and the state must pay for the prison.

Loc: 4,139 The interesting question for our purposes is whether this elaborate system of slave labor showed a profit or at least covered its costs. Nobody seems to have worked out the relevant accounts, but there is indirect evidence. While the French state exploited the labor of its galley slaves, it made little attempt to exploit the labor of the much larger number of prisoners not sentenced to the galleys. If the galley slave system had been a clear success, it is hard to believe that the eighteenth-century French state, perennially short of cash, would not have applied a similar approach to the rest of its prison population or at least as much of it as was in suitable physical condition. […] I conclude that galley slaves, at a time when galleys were still militarily useful, probably produced services worth more than the cost of guarding and maintaining the slaves but that in other employments France, like England, found that prison labor cost more than it was worth.

Loc: 4,158 in 1718, succeeded in part due to a subsidy of three pounds per convict. That suggests that the amount the government was willing to pay for transportation reached three pounds per transportee in about 1718.533 Three pounds per transportee was a one-time cost in exchange for which the transportee was removed from England for at least 7, in many cases at least 14, years.534 I have no figures for the cost of prisons in England save the very high figure for confinement of prisoners in hulks during the American Revolution. But the cost per prisoner at one of the contemporary French prisons was the equivalent of about four pounds sterling (75-79 livres tournois) a year.535 That suggests that imprisonment cost substantially more than the English state was willing to pay.

Loc: 4,204 The legal system, by considering and acting on such petitions, is implicitly offering the convicted felon a choice between a fine and execution. The fine is paid not by the felon but by his friends and takes the form not of money but of favors. It is paid, possibly through intermediaries, to people who can influence the granting of pardons. To the extent that those paying the fine are in a position to prevent their friends from committing felonies, such a system gives them an incentive to do so. It then functions as a collective punishment similar to those observed in some primitive legal systems, where fines are paid in part by the offender, in part by other members of his kinship group.

> On the practice of trying to convince a high-places official to get you pardoned in exchange for a chain of favours.

Loc: 4,268 One conclusion from research in that field is that individuals do a poor job of evaluating low probabilities and overweight striking outcomes, fear airplane crashes more than auto crashes even though the expected mortality per mile is much higher for the latter. One possible explanation of the pattern of punishment in eighteenth-century England is that the men responsible for constructing that system had a good intuitive feel for the imperfect rationality of those it was designed to control.

16. Athenian Law: The Work of a Mad Economist

Loc: 4,347 The Athenians had a rather different approach. Laws were made by majority vote of the Assembly (Ekklesia), which consisted of all adult male citizens who chose to show up. But the officials—magistrates—were selected by lot, each to serve for a term of one year; the only officials to whom this did not apply were the generals. The result was a government of amateurs and a legal and political system designed to accommodate it. It was a legal system containing a number of clever ideas by clever people, some of which probably worked and some of which probably did not.

Loc: 4,371 Other than being freed, a slave had one legal means of leaving his master; he could claim asylum in the Theseion560 and ask for someone else to buy him.

> It seems like his master would set the price in this case, so he might be stuck there for quite a while.

Loc: 4,378 The size of the jury for a case varied over time and according to the nature of the case but seems usually to have been 200 to 500. Jurors were paid ½ drachma for each day they served, about half the wage of a rower, so jury service provided a sort of low-end welfare. If we accept an estimate of 30,000 for the total number of adult male citizens, at any one time about a fifth of them were on the jury panel. Even allowing for the fact that a juror might not serve every day, that suggests that trials absorbed the attention of a substantial fraction of the citizen population.

Loc: 4,382 The sums at stake in litigation could be substantial and jurors were likely to be poor, which raised an obvious risk of bribery. To prevent that, the Athenians contrived elaborate procedures designed to make sure that no juror would know what case he would be assigned to until the last minute.

Loc: 4,408 A public case corresponded roughly to our criminal cases; it was supposed to be for an offense that injured not merely a single person but the whole community.

Loc: 4,410 The ordinary procedure was for the case to be privately prosecuted by any male citizen who chose to do so. The prosecutor would, for many but not all sorts of cases, receive a substantial fraction of any resulting fine, sometimes as much as half, as his reward.

Loc: 4,414 Such a system raises the risk of suits against innocent defendants believed to be rich, unpopular, or both. One solution was a provision of the law under which, in many public cases, a prosecutor who failed to get at least a fifth of the jurors to vote for conviction was himself both fined and barred from any future suits of the same kind. The fine was 1000 drachmas, roughly two years’ wages for an ordinary craftsman.

Loc: 4,422 Some categories of private cases were required first to go to arbitration, the arbitrator being selected from a group of citizens in their sixtieth year. If both parties accepted the arbitrator’s verdict, the case was over. Either could instead appeal, in which case there would be a jury trial.

Loc: 4,435 The victim of theft was entitled to get back both his stolen property and a sum equal to twice its value. We worry about police planting drugs on a suspect in the process of search; the Athenians worried about a private party planting his own property on someone in order to accuse him of stealing it. They had a simple solution. The accuser was allowed to search the house where he suspected his stolen property was hidden. But he had to do it naked.

Loc: 4,450 Miasma shows up in at least one other oddity of the law: An object responsible for killing an Athenian had to be ceremonially exiled, removed beyond the boundaries of Attica.

> Similar to Marime etc.

Loc: 4,470 If a man died with a daughter but no male descendants she would be required to marry the nearest male relative, outside of the narrow limits of the incest rules, who would have her. If already married, she was required to divorce her husband. One motive for these rules may have been to keep the household in existence in order that there would be someone to take care of the family tombs and do the required ceremonies on behalf of dead ancestors.

Loc: 4,476 Seduction was treated as a more serious crime than rape, the latter being punished with a fine, initially 100 drachma, later set by the jury. Seen from the standpoint of the husband, that made sense; seduction implied the loss not only of confidence that his wife's children were his but also of his future trust in her.

> Yikes

Loc: 4,480 The Athenians had a straightforward solution to the problem of producing public goods such as the maintenance of a warship or the organizing of a public festival. If you were one of the richest Athenians, every two years you were obliged to produce a public good. The relevant magistrate would tell you which one. “As you know, we are sending a team to the Olympics this year. Congratulations, you are the sponsor.” […] Such an obligation was called a liturgy. There were two ways to get out of it. One was to show that you were already doing another liturgy this year or had done one last year. The other was to prove that there was another Athenian, richer than you, who had not done one last year and was not doing one this year. […] How, in a world without accountants, income tax, public records of what people owned and what it was worth, do I prove that you are richer than I am? […] I offer to exchange everything I own for everything you own. If you refuse, you have admitted that you are richer than I am; you get to do the liturgy that was to be imposed on me.

17. Enforcing Rules

Loc: 4,546 Tort law is criminal law with the police and public prosecutor replaced by the victim and his agents. It is their job to figure out who committed the tort, gather evidence and convince the court.

Loc: 4,550 Tort law privatizes part of the job of enforcing legal rules. Doing so solves some, but not all, of the problems raised by criminal law. A tort plaintiff can impose costs on the defendant without compensation, such as the cost of paying for a lawyer to defend against the suit or of responding to a discovery demand, but, not being protected by sovereign immunity, he is less able to do so than a police department.

Loc: 4,556 Most people do not think of government enforcement of criminal law as a form of socialism but, economically speaking, that is what it is—government ownership and control of a means of production. Familiar arguments for the inefficiency of socialism apply.

Loc: 4,558 Tort law has its own incentive problems. The damage payment awarded by a court is both the penalty to the convicted tortfeasor for committing the tort and the reward to the plaintiff and his lawyer for convicting him of it. There is no reason to expect the same payment to give both the right incentive to avoid committing the tort and the right incentive to prosecute it.576 […] Consider a tort that is difficult to detect and prove, with the result that half the tortfeasors escape unpunished. The damage done is (say) ten thousand dollars, so that is what convicted tortfeasors pay, making the average penalty five thousand—half the time ten, half the time zero. If the cost to me of precautions to avoid committing it is seven thousand dollars, I am on average better off not bothering to take them. What saves me seven thousand dollars costs you ten, making us, on net, worse off by three thousand dollars. A tort that should be deterred isn’t.

> !

Loc: 4,692 In a society where people know each other well enough for reputational enforcement to work well, a mugger, even if he has never been convicted, even if his society has no courts to convict him in, may find that his loss of reputation costs him in the parts of his life that do not consist of mugging people. The argument can be expanded beyond the loss of trading opportunities. Humans are social animals; most of us want to be liked, admired, seen as high status. Being viewed as someone who cannot be trusted costs on all those dimensions. That may be a reason to be trustworthy even for someone planning no repeat transactions that depend on trust.

> See The evolution of cooperation

Loc: 4,708 So one requirement for reputational enforcement to work is that the information cost to interested third parties of figuring out who was at fault is low enough to make it worth their while to do so. One way of fulfilling this condition is a small society where everyone knows everyone else and has a pretty good idea of whose account can or cannot be trusted.

Loc: 4,714 A third approach is demonstrated by the dealings of Chinese merchants in Taiwan in an environment largely dependent on reputational enforcement, as described in Chapter 1. Structure your contracts in ways that make it as easy as possible for third parties to tell who was at fault. If my goods are being stored in your warehouse and I complain that you have let them be damaged or that some of them are missing it will be hard for a third party to judge the dispute, so follow the simple rule that ownership goes with physical possession. Make a buyer responsible for inspecting goods before he accepts them and forbid him, save in the most extreme cases, from demanding compensation if he later discovers that their quality is less than he was led to expect—the rule of caveat emptor. It is easier to demonstrate whether or not I delivered the goods to him than what happened to them afterwards or what condition they were delivered

Loc: 4,833 Religious practices that are costly and not enforced, hence engaged in only by believers, provide one such test. One function of kosher rules and similar restrictions may be to identify believers whose oaths are to be trusted.598 The extreme version of that is a situation where being a member of the group is so costly that nobody would choose to join unless he truly believed in the religion. Arguably that describes those who participated in the Mormon church in its early years, when the faithful were fleeing most of the rest of mankind to set up their refuge in what would become Utah. […] That suggests that religions such as Islam or the Church of Latter Day Saints, at least in their early stages, have a significant advantage over less controversial rivals; they know who can be trusted because nobody who can't be will join. Arguably an analogous situation exists for political movements. Being in power has advantages but also an important disadvantage. Since identifying with the party in power pays, there is no easy way of distinguishing dedicated believers who can be trusted from the political equivalent of rice Christians, Chinese who converted because the missionaries had rice.

Loc: 4,914 Patricia Hearst’s 1976 trial for bank robbery lasted forty days. That was unusually long, but the average felony jury trial in Los Angeles in 1968 took 7.2 days, more than a hundred times the length of the average felony trial in the Old Bailey in the 1730’s.

Loc: 4,919 The American legal system found a cheaper alternative. Like its medieval predecessor, it substituted confession for trial. The medieval confession was motivated by the threat of torture. The modern version, a plea bargain, is motivated by the threat of a more severe sentence if the defendant insists on a trial and is convicted. Like the medieval version, it preserves the form—every felony defendant has the right to a jury trial, a lawyer, and all the paraphernalia of the modern law of criminal defense—while abandoning the substance. Conviction after a lengthy and careful jury trial is, arguably, evidence of guilt beyond a reasonable doubt. The willingness to accept a sentence of a year, possibly a year already served while awaiting trial, instead of the risk of ten years if convicted is not.

> ! Not sure how common this is in the UK? Seems to be rare and intentionally very limited in what can be offered: https://en.wikipedia.org/wiki/Plea_bargain#England_and_Wales

Loc: 4,987 One argument against it is that a defendant who is tortured and acquitted has been punished by torture, perhaps permanently injured, for a crime he did not commit. Another, noted at least as far back as Periclean Athens, is that under torture even an innocent defendant may confess. The law of the Visigoths,612 the earliest Germanic law code to have survived, offered a solution to the second problem. Torture of a defendant was only permitted if there were facts of the crime that an innocent defendant would not know. A confession was only accepted if it included such facts.

Loc: 5,062 Religion provides the perfect mechanism for punishing the guilty and only the guilty, provided that the religion is true and the divinity omniscient. It works reasonably well even if the religion is not true, provided that potential offenders believe in it.

> !

Loc: 5,069 Peter Leeson, in an article on medieval ordeals,616 describes an ingenious mechanism to leverage religious belief in the service of human enforcement. The legal system was structured in a way that gave accused defendants the opportunity to undergo an ordeal or avoid one. Since defendants believed that God would reveal guilt or innocence, guilty defendants were reluctant to undergo ordeals. The priests, realizing that most of those who chose ordeals were innocent, rigged the ordeals to acquit most defendants. In support of that interpretation, Leeson offers evidence of an implausibly large number of accused criminals who succeeded in picking up purportedly red-hot iron or plunging their hands into boiling water without injury. He also points to a collection of cases where the ordeal of submersion was given only to men—because, he argued, women were more likely to float and so be convicted.

19. Making Law

Loc: 5,163 Something that some will see as a bug and some as a feature is the slow response to change of a system of precedent. Judges reach a high level late in their careers and remain there until forced to retire by old age or death. Old judges may base their decisions on the views and values of their youth. Legislators, even aging legislators, are under pressure to support positions popular with the current electorate.

Loc: 5,251 A norm of restricted whaling benefits all whalers if they all follow it, but the benefit from my restraint goes to other whalers whether or not they act similarly. The right rule for all is to restrict. The right rule for any individual is to free ride on the restrictions of others. The problem is strictly analogous to the familiar case of the prisoner’s dilemma, more generally market failure,630 situations where individual rationality does not lead to group rationality. It follows that customary law based on social norms ought to do a good job of generating the sort of rules that benefit the members of a group whose members adopt them but not the sort of rules which make us all better off if we all follow them.

> Cooperation evolves. But moloch needs to be designed away?

20. Guarding the Guardians

Loc: 5,372 have so far ignored what many modern people think of as the most important constraint on enforcers—democracy. If the chief of police is corrupt and the mayor refuses to fire him, vote the mayor out. That was, after all, the mechanism that eighteenth-century pirates used to deal with a corrupt or incompetent quartermaster. For a pirate ship with a crew of a hundred or so, it may have worked. The scale of the polity was small enough so that the individual voter had adequate first-hand information on how good or bad a job the quartermaster was doing. And it was reinforced by a second mechanism—reputation. If the quartermaster pocketed more than his share of the loot and managed to fool or bribe enough of the pirate voters to keep his position, the next time the ship docked at a pirate port it might lose half its crew and have a hard time recruiting replacements. It works much less well for a city of three million or a country of three hundred million.

21. Ideas We Can Use

Loc: 5,401 make claims marketable, permitting the victim to transfer his claim to someone better able to pursue it. He might or might not end up with a share of the damage payment—but then, crime victims usually collect nothing under our system. At least the offender would pay, giving potential offenders a reason not to violate the rights of even weak victims.

Loc: 5,408 That is not the only advantage of marketable tort claims. Consider a tort that does a small amount of damage to each of a large number of people. The current mechanism for dealing with such is a class action.

Loc: 5,419 When he is done, he owns three million claims for ten dollars each. He goes to the bean company and offers to settle for eighty cents on the dollar, twenty-four million dollars. If they turn him down he sues—not on behalf of the victims, who have sold their claims to him via middlemen, but for himself. There is no need for an attorney to pretend to represent millions of people who have never heard of him, no need for a judge to monitor the settlement to make sure it is fair to the victims. The victims have been paid in advance.

Loc: 5,422 Iceland had marketable claims in the tenth century. America does not have them yet. Our legal system is more than a thousand years behind the cutting edge of legal technology.

Loc: 5,516 A modern version of the Athenian approach is routinely used in horse racing to construct a competitive race. Entering a horse in a claiming race constitutes an offer to sell the horse at the stated price, say $20,000. Varying the price provides a simple way of creating races at a range of levels. The owner of a fast horse could get an easy win by entering him in an easy race, but only at the cost of losing the horse.

> Like selff assesed property tax allows peeeple to buy house at your choseen price

Loc: 5,564 One question remains—is the result a good one? Seen from one side, it is a precaution against governments murdering people they don’t like. Seen from the other, it reduces the ability of the legal system to ignore illegal acts that are not worth punishing. In the U.S. at present, it is illegal for college students who are under twenty-one to buy, possess, or consume alcoholic drinks or for others to provide alcoholic drinks to them.653 Would it be a good thing for a student with a grudge against his ex-girlfriend or her new boyfriend to be able to have one or both arrested, charged with (depending on the state and circumstances) a misdemeanor or felony and, if convicted, jailed for several months, conceivably several years?

> Criminal prosecution by any private citizen

Loc: 5,575 A possible compromise might be to permit private prosecution only against government employees. Think of it as an updated version of Mencken’s proposal.

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Last modified 2019-07-12 Fri 09:06. Contact max@maxjmartin.com