"Talks a good game about freedom when out of power, but once he’s in – bam! Everyone's enslaved in the human-flourishing mines."

Book Review: Legal Systems Very Different From Ours

I.

Medieval Icelandic crime victims would sell the right to pursue a perpetrator to the highest bidder. 18th century English justice replaced fines with criminals bribing prosecutors to drop cases. Somali judges compete on the free market; those who give bad verdicts get a reputation that drives away future customers.

“Anarcho-capitalism” evokes a dystopian cyberpunk future. But maybe that’s wrong. Maybe we’ve always been anarcho-capitalist. Maybe a state-run legal system isn’t a fact of nature, but a historical oddity as contingent as collectivized farming or nationalized railroads. Legal Systems Very Different From Ours, by anarcho-capitalist/legal scholar/medieval history buff David Friedman, successfully combines the author’s three special interests into a whirlwind tour of exotic law.

Law is a public good. Crime victims have little economic incentive to punish the perpetrator; if you burn my house down, jailing you won’t un-burn the house. If you steal my gold, I have some interest in catching you and taking it back, but no more than I do in catching some other poor shmuck and taking his gold. It’s only society as a whole that wants to make sure criminals are reliably punished and the innocent consistently safe. This is the classic situation where economists usually recommend government intervention.

But sometimes that doesn’t work. Maybe you live in an area like Somalia or medieval Ireland without a strong centralized government. Maybe you live in a strato-klepto-kakocracy run by warlords who can’t even pronounce “jurisprudence”, let alone enforce it. Maybe you’re a despised minority group whom the State wants nothing to do with, or who wants nothing to do with the State.

Gypsies living scattered in foreign countries have generally wanted to run their own communities by their own rules. Nothing stops some of them from calling themselves a “legislature” or a “court” and claiming to make laws or pass sentences. But something does stop them from trying to enforce them: from the State’s point of view, a “court” that executes an offender is just a bunch of Gypsies who got together and committed murder. So the Vlach Rom – Romanian Gypsies – organize courts called kris which enforce their sentences with threat of banishment from the community.

Gypsies traditionally believe in marime, a sort of awful pollution that infects people who don’t follow the right rituals; anyone who interacts with polluted people will become polluted themselves. Kris courts can declare the worst offenders polluted, ensuring their speedy ostracization from Gypsy society. And since non-Gypsies are polluted by default, the possibility of ostracism and forced integration into non-Gypsy society will seem intolerable:

The effectiveness of that threat [of ostracism] depends on how easily the exiled gypsy can function outside of his community. The marimé rules (and similar rules in other societies) provide a mechanism for isolating the members of the community. Gaije, non-gypsies, do not know the marimé rules and so do not and cannot obey them. It follows that they are all polluted, unclean, carriers of a contagious disease, people whom no Rom in his right mind would willingly choose to associate with; when and if such association is unavoidable it must be taken with great care. The gypsy view of gaije, reinforced by the gaije view of gypsies as uneducated and illiterate thieves and swindlers, eliminates the exit option and so empowers the kris to enforce gypsy law by the threat of exclusion from the only tolerable human society.

This reminds me of The Use And Abuse Of Witchdoctors For Life: once your culture has a weird superstition, it can get plugged into various social needs to become a load-bearing part of the community structure.

Amish also live under the authority of a foreign culture and have settled on a similar system, with a twist. The basic unit of Amish society is the church congregation; Amish settlements big enough to support multiple churches will have many congregations mixed together. Each congregation will have its own rules, especially about which technologies their members are or aren’t allowed to use. Amish people who violate their congregation’s rules, either by using forbidden technology or by the usual litany of sins, are punished with public confession or temporary ostracism. Amish people who refuse to abide by lesser punishments are excommunicated, though they can be un-excommunicated if they change their minds and agree to follow the court’s orders.

Amish congregations are nominally democratic, but in practice Friedman calls them dictatorship-like because everyone votes the way the bishop wants. But they are a “competitive dictatorship”; since there are so many different congregations in the same town, an Amish family who doesn’t like their congregation’s leadership or legal system can move to another congregation and agree to be bound by their laws instead. This makes it a rare remaining example of a polycentric legal system outside anarcho-capitalist fantasies or Too Like The Lightning:

Such a system can be viewed as a competitive market for legal rules, constrained, like other competitive markets, to produce about the product that the customers want. Competitive dictatorship is the mechanism we routinely use to control hotels and restaurants; the customers have no vote on what color the walls are painted or what is on the menu, but an absolute vote on which one they patronize.

They do encounter the same problem as the Gypsies: can you just commit a crime, then accept your ostracism and integrate with another society somewhere else? The Amish have some internal mechanisms to prevent this: congregations are usually on good terms with each other, but if Congregation A accepts a member being shunned by Congregation B, then all of Congregation B’s members will shun all of Congregation A’s members. In practice, this makes it easy to switch rules as a member in good standing who honestly doesn’t like the laws, but hard to break the laws and get away with it.

Of course, you can still leave the Amish community and go join broader American society. But have you seen broader American society?

18th century England had a government, a court system, and some minimal law enforcement – but it really sucked. There were no public prosecutors; anyone who felt like it could bring a criminal to court and start prosecuting him, but if nobody felt like it then the crime remained unpunished. Prosecuting took a lot of time and money and was generally a thankless task. And the government didn’t want to go to the expense of imprisoning people, so they usually just hanged convicted offenders (if the crime seemed really bad) or pardoned them (if it didn’t seem to merit hanging). The exotic anarcho-capitalist part comes in as English civil society creates its own structures to work around these limitations.

Merchants, landowners, and other people with wealth banded together in mutual-protection-insurance-groups. Everyone in the group would pay a fixed amount yearly, and if one of them got robbed the group would use the money to hire a prosecutor to try the criminal. Group members would publish their names in the newspaper to help inform thieves whom it was a bad idea to rob. But this wasn’t about leaving poor people out to dry. The groups would also help indigents who couldn’t afford their own prosecutors, partly out of a desire to crack down on crime before it reached the point where it could inconvenience them. They wouldn’t help people who could have afforded insurance but declined anyway, though – otherwise there would be no incentive to buy in.

(if this sounds familiar, it’s from another, very different David Friedman book)

What about the lack of good punishments? Once a trial was underway, prosecutors would usually cut a deal: the offender would bribe the prosecutor with a certain amount, and the prosecutor would drop the case. The size of the bribe would vary based on how much the offender could pay, the extent of their crime, and the facts of the case (and therefore the likelihood of the magistrate choosing hanging vs. pardon). This not only helped tailor the punishment more precisely to the crime, but helped defer the cost of prosecution: victims (or their mutual-protection-insurance-groups) were incentivized to press charges because they could recoup their costs through the bribes paid to drop them:

What both modern and contemporary commentators seem to have missed is that, however corrupt such arrangements might be from a legal standpoint, they helped solve the fundamental problem of private prosecution. The possibility of compounding provided an incentive to prosecute-it converted the system into something more like a civil system, where a victim sues in the hope of collecting money damages. And while compounding might save the criminal from the noose, he did not get off scott free. He ended up paying, to the prosecutor, what was in effect a fine.

10th through 13th century Iceland was in the same position as the Vlach Rom: a legislature (the Althing), some courts, but no executive branch. Unlike the Rom, the Icelanders’ problem wasn’t foreign oppressors – it was that they were the Viking equivalent of those hard-core libertarians who live in compounds in Montana where the Feds can’t reach them. In this case “the Feds” were the forces of King Harald Fairhair, who had just taken over and centralized power in Norway. Some Norwegians decided they would rather live on a remote and frequently-exploding piece of rock on the edge of the world than be anyone’s subject: thus, medieval Iceland.

If an Icelander thought a crime had happened, they would go to court and plead the case themselves. If the court pronounced a guilty verdict, it would demand a penalty from the criminal. Usually this was a fine paid to the victim; even murders were punished with wergeld. If the criminal paid the fine voluntarily, all was well. If they refused – or didn’t even come to court – then the court could declare the criminal an outlaw, meaning it was legal to kill him and take his stuff. And:

One obvious objection to a system of private enforcement is that the poor (or weak) would be defenseless. The Icelandic system dealt with this problem by giving the victim a property right – the right to be reimbursed by the criminal – and making that right transferable. The victim could turn over his case to someone else, either gratis or in return for a consideration. A man who did not have sufficient resources to prosecute a case or enforce a verdict could sell it to another who did and who expected to make a profit in both money and reputation by winning the case and collecting the fine. This meant that an attack on even the poorest victim could lead to eventual punishment.

A second objection is that the rich (or powerful) could commit crimes with impunity, since nobody would be able to enforce judgment against them. Where power is sufficiently concentrated this might be true; this was one of the problems which 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 was outlawed and 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 pay another fine would pull more people into the coalition against him.

There is a scene in Njal’s Saga that provides striking evidence of the stability of this system. Conflict between two groups has become so intense that open fighting threatens to break out in the middle of the court. A leader of one faction asks a benevolent neutral what he will do for them in case of a fight. He replies that if they are losing he will help them, and if they are winning he will break up the fight before they kill more men than they can afford! Even when the system seems so near to breaking down, it is still assumed that every enemy killed must eventually be paid for. The reason is obvious enough; each man killed will have friends and relations who are still neutral–and will remain neutral if and only if the killing is made up for by an appropriate wergeld.

I think this is asking: are we sure you can’t end up with outlaw cascades, where everyone just agrees to be outlaws together? Suppose Warren Buffett cuts off my arm. The court asks him to pay a fine, and he refuses, so the court declares him an outlaw and legally killable. I gather some of my friends to form a posse to kill him, but he hires a hundred bodyguards to resist me. There’s a fight, the bodyguards kill my friends, and the court fines the bodyguards. They don’t pay, so the court declares the bodyguards outlaws. I gather a thousand people to kill Buffett and/or his hundred bodyguards, and Buffett and his bodyguards pool their money to hire a whole force of mercenaries to resist us. The mercenaries kill lots of us, the court fines them, and the mercenaries don’t pay. Now the court declares the mercenaries outlaws. But it seems like at some point maybe more than half the population of Iceland will be outlaws, and then maybe they just have to declare a new legal system or something.

An Icelander might retort: why doesn’t that happen in modern America? A policeman catches you dealing drugs, so you offer the policeman $10,000 to let it pass. The policeman refuses because it’s illegal and he would get in trouble. Well, you say, what’s the worst thing that could happen if you got in trouble? The police would come after you? But police would hesitate to arrest a fellow officer, plus we’ve already established that they can be deflected with bribes. Sure, there’s a stable equilibrium where you arrest me right now. But there’s also a stable equilibrium where 51%+ of the nation’s police join our sordid bribery chain, accumulate more power than the law-abiding police, and end up as some weird mercenary army that takes over the country and rewrites the law to their own advantage.

This is a good place to remember that David Friedman is also the author of A Positive Account Of Property Rights, maybe the single most mind-opening essay I’ve ever read. No summary can do it justice, but the basic outline is that governmental “legitimacy” is the government’s position as a conspicuous Schelling point for everybody who wants to avoid civil war/the state of nature/a worse government. Once it’s common knowledge that a government is legitimate, everyone expects everyone else to enforce its rules, and so they’ll enforce its rules in turn until it becomes common knowledge that the government isn’t legitimate anymore. This works just as well in medieval Icelandic anarcho-capitalism as it does in modern America. Just because our government dresses all of its enforcers-of-state-sanctioned violence in snazzy uniforms and makes them work out of the same building doesn’t make the whole system any less of a mass hallucination.

II.

This book works well alongside James Scott’s Seeing Like A State and the whole discourse around cultural evolution.

In Seeing Like A State, ordinary people living their daily lives blunder into highly advanced systems for doing whatever it is they do. Primitive farmers will know every tiny detail about exactly when to plant which crops, and how to exploit microvariations in soil quality, and know ridiculous tricks like planting fish heads in the ground as fertilizer. Ordinary city-dwellers will organically build houses and stores and streets in exactly the right fractal patterns to maximize some measure of quality of life. Scott dubs this “metis”, an evolved intuitive sense of practical wisdom that often outperforms seemingly more scientific solutions.

Many of the societies Friedman profiles in Legal Systems Very Different From Ours seem to operate on metis. Most don’t know who developed their legal system; in a few of them, it is explicitly declared to have been the work of God. Most don’t really know why their legal system works – in some cases, Friedman only gives an economic analysis of why some rule might exist after admitting that previous scholarship (both modern academic, and within the society in question) has failed to come up with answers. And a lot of them are too brilliant, and need too many weird interlocking parts, to be the work of any single person.

“Cultural evolution” is the idea that cultures evolve in a way analogous to biological organisms. The definition gets kind of fuzzy – if I come up with a good idea and my culture adopts it, is that the result of “cultural evolution” or ordinary human ingenuity? `But a lot of people find the concept to have some value – and if it has any at all, Legal Systems Very Different From Ours has to include some of the best examples.

Friedman frames this in economic terms. Social “entrepreneurs” come up with some new system that solves a need, and it catches on by raising the utility of everyone involved. The mutual-protection-insurance-groups of 18th century England work this way: somebody invents them and offers the opportunity for other people to sign on, everyone who does ends up better off than the people who doesn’t, and they eventually reach fixation. Same with the criminal-prosecutor bribes; someone thinks it up, it leaves both sides better off, so everybody who hears about it does it. Viewed very optimistically, wherever there’s a problem in your culture, institutions to solve the problem will magically appear and spread until everybody does them.

Conflict is an especially fertile ground for cultural innovation. Friedman stresses how many legal systems, including advanced ones with lawyers and codes and everything, show signs of originating from feud systems, which might be the most basic form of law. They work like this: “If you offend me in some way, I will try to kill you”. A slightly more advanced version that takes account of possibly power differentials between offender and victim: “If you offend me in some way, everybody in my family will try to kill everybody in your family”. This originally sounds unpromising, but it turns out that people really don’t want their family members murdered. So we end up with an even more advanced version: “If you offend me in some way, we had better find some way to arbitrate our dispute, or else everybody in my family will try to kill everybody in your family”.

The Somali system seems to be somewhere around here: if two people have a dispute, they find a mutually agreeable judge to arbitrate; the judge will decide who’s in the wrong and what fine they need to pay to make it right. If someone refuses to go to the judge, or refuses to abide by the judge’s decision, then it’s family-member-killing time. Needless to say, Somali judges’ services remain popular. And since judges gain status by arbitrating, and since only judges who make widely-regarded-as-good decisions get invited to keep doing so, there’s economic pressure for the judges to make good decisions (which then go down as precedent and inspire future cases). It’s easy to see how something like this can turn into a perfectly respectable legal system where people totally forget that killing each other’s family members is even an option. Catch it at this last stage, and hear enough people admit they have no idea who “invented” their legal system, and it looks like it appeared by magic.

In fact, one of the most interesting things I got from this book is that all legal systems need a punishment of last resort – one that can be enforced whether or not the offender agrees with it – but these punishments practically never happen in real life. The Gypsies and Amish will ostracize members who defy the court – but since everyone lives in fear of ostracization, in real life they’ll just pay the fine or make their public confession or whatever. The English will hang criminals at the drop of a hat – but since the threat of hanging incentivizes them to bribe prosecutors, in reality few people will need to be hanged. The Icelandic courts could declare offenders outlaws who can be killed without repercussion – but the threat encourages Icelanders to pay the wergeld, and nobody has to get outlawed. The Somalis are ready to have murderous family feuds – but the possibility of such a feud keeps people willing to go to arbitration. Even our own legal system works like this. The police can physically drag you to jail, kicking and screaming. But more likely you’re going to plea bargain, or agree to community service, or at least be cooperative and polite while the police take you away. Plea bargains – which are easier for prosecutors, easier for defendants, and easier for taxpayers – seem like a good example of cultural evolution in action; once someone thought them up, there was no way they weren’t going to take over everything despite their very serious costs.

III.

Three other things worth noting about Legal Systems Very Different From Ours.

First, something kept seeming off about all the legal systems mentioned, which only clicked into place about halfway through: they really, really didn’t seem prepared for crime. A lot of them worked on a principle like: “If there’s a crime, we’ll call together a court made of all the town elders, plus at least three different religious leaders, plus the heads of the families of everybody involved, plus a representative of the Great King, plus nine different jurists from nine different universities, and all of them will meet on the Field Of Meeting, and a great tent will be erected, and…” The whole thing sounded like it might work as long as there was like one crime a year. Any more than that and none of the society’s officials would ever have time for anything else.

As weird as it is to punish murder with a fine, the fines these societies levied for murder sounded really high: the Islamic price was a hundred camels, the Irish price was seven female slaves. The average person wouldn’t have that many slaves or camels, so people in Arabia or Ireland would band together into clan/family-based blood-money-paying-groups that acted kind of like insurance companies. If a member got convicted of a crime, everyone else would come together to help them pony up the money. I assume this helped incentivize people’s families to discourage them from committing crimes. But it has the same feeling of nobody expecting very many crimes to be committed. How much of medieval Arabia’s GDP consisted of transfers of 100 camels from murderers to victims’ families?

One little-admitted but much-worried-about justification for mass incarceration in our society is the concern that some people are just so naturally violent that, left in the outside world, they would offend again and again until they died. The societies in this book didn’t seem to worry about this. If someone killed, their family would give up the relevant number of camels, and then everyone would be on their way. As far as I can tell, the Amish have no idea what to do about any crime more dire than using a telephone. Nobody used anything at all like incarceration. 18th century England occasionally sent prisoners somewhere horrible like America, but once the colonies revolted they experimented with jails, found them too expensive, and just sort of flailed around punishment-less until they finally discovered Australia.

There’s a lot of concern about police brutality, police racism, police failure-to-actually-control crime, et cetera. A few far-leftists have flirted with the idea of abolishing police, and the only way I can make sense of this is by analogy to something like Somali or Icelandic law. These were genuine community-based non-hierarchical legal systems. And, for the place and the time, they seem to have worked really well (Somaliland, which uses traditional Somali law, is doing way better than Somalia proper, whose law system is somewhat westernized). But I also know that it’s weirdly hard to get a good picture of how modern crime rates compare to ancient ones. On the one hand are statistics like the ones saying crime has increased by an order of magnitude since 1900 or so; on the other are findings like Steven Pinker’s that violence is constantly declining. Apply the “court made of town elders plus at least three different religious leaders plus…” to Baltimore, and the Field Of Meeting is going to get pretty crowded. On the other hand, in my past work with criminals I’ve been constantly surprised by how much role their families and their communities still play in their lives, and maybe a system that left legal enforcement up to them would do better than the overstretched and underperforming police.

(but what would the transfer process look like? Just cancel all funding for the Baltimore Police Department and hope for the best?)

Second, some complaints that are kind of unfair because they’re along the lines of “this book is too good”, but which probably need a mention.

Whenever I read a book by anyone other than David Friedman about a foreign culture, it sounds like “The X’wunda give their mother-in-law three cows every monsoon season, then pluck out their own eyes as a sacrifice to Humunga, the Volcano God”.

And whenever I read David Friedman, it sounds like “The X’wunda ensure positive-sum intergenerational trade by a market system in which everyone pays the efficient price for continued economic relationships with their spouse’s clan; they demonstrate their honesty with a costly signal of self-mutilation that creates common knowledge of belief in a faith whose priests are able to arbitrate financial disputes.”

This is great, and it’s important to fight the temptation to think of foreign cultures as completely ridiculous idiots who do stuff for no reason. But it all works out so neatly – and so much better than when anyone else treats the same topics – that I’m always nervous if I’m not familiar enough with the culture involved to know whether they’re being shoehorned into a mold that’s more rational-self-interest-maximizing than other anthropologists (or they themselves) would recognize.

And also, the cultural evolution idea is really optimistic. I’ve been trying to read a bit more about Marxism and Postmodernism lately, and they would be pretty skeptical about analyzing social systems by asking “What large-scale problem of human interaction is this system the exactly optimal solution for?”

Like, there’s a perspective where lots of countries have a King, because societies that have a single central nexus to their coordination structure are able to coordinate better than ones that don’t, and having them rule for life promotes long-term thinking, and them be hereditary provides a clear Schelling Point for secession disputes that prevents civil war and cleverly ensures that the previous ruler is incentivized to promote the peaceful transfer of power to the next one, and this is why constitutional monarchies have slightly higher yearly GDP growth than other forms of government.

And there’s another perspective where lots of countries have a King, because some guy seized so much power that he can live in a giant palace and order people around all day instead of doing work. And if anyone tries to prevent him from doing that, he can arrange to have that person beheaded.

Legal Systems Very Different From Ours is very much part of the first perspective. It’s a story of nations and legal systems evolving towards ever-more-optimal and ever-more-efficient institutions for the good of all, and it presents strong evidence supporting that story. I can’t disagree with its evidence from within its narrative, but I still wonder how much to worry about this alternate way of looking at things.

Third, in all of the fretting about how terrible our government is, and trying to change our government to be less terrible, and trying to convince other people to go along with our terribleness-decreasing government change proposals – it’s important to keep on remembering the degree to which you can still pretty much do whatever you want.

In New York, Orthodox Jews with business disputes still bring them before a tribunal of rabbis, who judge them based on Jewish law. In Pennsylvania, the Amish live their own lives in their own way pretty much completely disconnected from US government decisions (although they needed a decent lobby group, the Amish Steering Committee, to work out a few special exemptions like from the draft). Socialists occasionally set up worker-owned companies run for the good of the proletariat, and they make products and earn money just like everyone else.

If you don’t like the government, you’re out of luck. But if you and your whole community don’t like the government, you can organize your own internal relations however you want. You can’t override existing laws – you’ll still have to pay taxes, and you can’t set up a bomb-making factory in your backyard. But you can add as many new laws as you want, enforced by threat of ostracism from your community, plus any other clever commitment mechanisms you can think of. There’s nothing stopping communities – a broad term covering anything from villages to church congregations to cults to political organizations to online message boards – from creating internal welfare systems to help their poorer members, taking a say in when their members marry or divorce, making home schools that educated their members’ children, demanding their members in business treat their employees or business partners a certain way, et cetera.

Right now doctors’ services are super-bloated and expensive because if a patient sues them they can be held liable for not filling out any of seven zillion forms or following any of twenty zillion best practices. But if the doctor only saw patients in their own community, and everyone in the community had mutual arbitration methods that worked better than the courts, maybe they could charge a fraction of the current price. This might not be illegal, as long as the community wasn’t based on a protected group like race or religion. There just aren’t many existing communities strong enough to make it work.

But some small seeds are starting to sprout. Social justice communities have sexual harassment policies much stronger than those of the country at large, and enforce them by ostracism and public shaming. Christians are trying to build the Benedict Option, an embedded society that works on Christian norms and rules. And there’s always the seasteading movement, currently led by – oh, that’s interesting – David Friedman’s son.

Legal Systems Very Different From Ours hints that we could build something like Archipelago gradually, without anybody noticing. The Jews and Gypsies did something like it. So did the Amish. Maybe all we have to do is start threatening to feud against each other’s families, and utopia is right around the corner.

[Legal Systems Very Different From Ours is available for free online at this link]

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444 Responses to Book Review: Legal Systems Very Different From Ours

  1. DataPacRat says:

    And if anyone can figure out decent ways for a Robin-Hanson-ian em-clan to put together a similar sort of internal legal system for its members, and can describe how cultural-evolutionary pressures would lead em-clans to tend towards any particular systemic details, I would love to read about it.

    • Shannon Alther says:

      Well.

      One way we could describe the purpose of laws is ‘a system for resolving conflicts between people in a way that is maximally favourable for the society they live in.’ This neatly captures some key points: stealing is punished because everyone wants to keep the things they have, murder is punished because nobody wants to die, and so on. But these conflicts arise because people want different things. In practice, if a person disappears under suspicious circumstances, their spouse is the prime suspect in the investigation. Given the freedom to pull over and search any citizens they want, police will usually go for black people (YMMV) because they’re more likely to have drugs on them.

      Em clans do not have this problem. The essential unit of an em clan is a collection of entities which are duplicates from a common source. This could be either a person (Shannon’s brain upload – 2045) or another em (Em of Shannon spun off in 2049). Applying the practical, contemporary common uses of the legal system, we immediately start to run into problems. An em clan generated from a recreational user of cocaine certainly isn’t going to outlaw cocaine. Ems don’t have physical bodies, so criminal law is largely non-applicable, with certain exceptions for things like deliberately instantiating other ems and then torturing them.

      The real genius of the idea of an em clan is that everyone in the clan wants the same things, in a world where the subset of things they can have and trade are extremely limited. Things like server time, hardware, maybe certain goods in meatspace.

      Prediction time: I think em clans could operate just fine as a true democracy – all contentious decisions are resolved by a vote from every member of the clan. No logistical problems, no voters significantly less intelligent than any other. Prior to voting, different ems (remember, effectively the same person) can publicly declare the reasons the other ems should support their particular take on the issue, and there might be structured debate as well. I imagine that such a system would probably be mostly formal, and that the only issue that might ever be sorely contested is whether a group of ems should be allowed to leave the clan and start a new one.

      Caveat: I don’t think Robin Hanson’s vision of an economy staffed by ems is likely to happen and I haven’t considered the matter in depth, so this is even more speculative than the idea of em clans in the first place.

  2. Mai La Dreapta says:

    Medieval societies didn’t seem to worry about this. If someone killed, their family would pony up the relevant number of camels, and then everyone would be on their way.

    I’m not an expert by any means, but this doesn’t quite seem right. As I understand it, medieval societies gave out a lot of death penalties relative to modern societies.

    • Watchman says:

      As an actual expert (I have two degrees with the word medieval in the title…), I would ask which society you are referring to here, since medieval is a rather big catchall: it covers Aztecs. who probably did use death penalties a lot, albeit that was a factor of religion, and the Icelanders, who did it so rarely that they wrote sagas about the known times it happened…

      But in general medieval systems did not enforce death penalties, preferring to use the threat to enforce compromise and reduce the capacity for feud. Only where there was a strong central authority, such as some medieval Chinese states, whoever sat in Byzantium (in a very constrained local area) or apprarently the theological rulers of the monumental American cultures, or one-off rulers with a lot of personal power, would you find the ability to enforce death sentances. And even there, the application of justice often alienated outlying groups, and may have actually helped contribute to the eventual collapse of those strong states/hegemonies.

      • Loris says:

        I am not an expert, but isn’t the definition a bit loose on what constitutes a death penalty?
        I basically mean, killing of people due to rules or orders seems to me to have been practically par for the course in the middle ages, in Europe. Potentially you could exclude quite a bit for being “war”. But that’s possibly where the discrepancy lies.

        Before I say anything more, one thing I should say is that I’m assuming the wikipedia definition : “the Middle Ages or Medieval Period lasted from the 5th to the 15th century.”

        Only where there was a strong central authority, such as some medieval Chinese states, whoever sat in Byzantium (in a very constrained local area) or apprarently the theological rulers of the monumental American cultures, or one-off rulers with a lot of personal power, would you find the ability to enforce death sentances.

        You make it sound like that was uncommon. But doesn’t that cover practically all of Europe, and probably most of the known world for much of that time?

        So, perhaps an example. Would those who were killed during the Harrying of the North (England, 1069–70) count as death penalties?
        A couple of brief quotes from the wikipedia page:

        To his shame, William made no effort to control his fury, punishing the innocent with the guilty. He ordered that crops and herds, tools and food be burned to ashes. More than 100,000 people perished of starvation.

        The land was ravaged on either side of William’s route north from the River Aire. His army destroyed crops and settlements and forced rebels into hiding. In the New Year of 1070 he split his army into smaller units and sent them out to burn, loot, and terrify.[20] Florence of Worcester said that from the Humber to the Tees, William’s men burnt whole villages and slaughtered the inhabitants. Food stores and livestock were destroyed so that anyone surviving the initial massacre would succumb to starvation over the winter.

        It certainly seems to me that some people might feel justified in considering that as a stack of death penalties.
        And regarding whether this was normal – there’s controversy over whether this was genocide or not, but for example :

        Vegetius [a 4th century author, perhaps still considered valid in 11th century] said The main and principal point in war is to secure plenty of provisions and to destroy the enemy by famine, so Hagger’s conclusion is that the Harrying of the North was no worse than other similar conflicts of the time.

        • Watchman says:

          I would suggest a death penalty is a penalty applied by a legal process (however defined – I am not expert in enough areas to define this for the medieval period) to a person for their acts, or in some cases for an action of a member of their close family. I would exclude those killed in acts of warfare and otherwise asserting lordship, which is what the harrying of the north was: it was actually an extensive but otherwise normal example of how royal power was exercised in eleventh-century England, a nascent state with strong tensions between central and local authority – my favourite is the incident in 1042 when the city of Worcester was to be harried (for killing some tax collectors) and the inhabitants took off to a nearby isthmus between two major rivers and successfully defended themselves from the royal army.

          The reason for this slightly long and questionably relevant divergence is that it picks up on your question about royal authority. Eleventh-century England is normally acknowledged as the most-developed centralised kingdom in western Europe at the time, and the king’s authority could only be asserted through spectacular violence. He was in no place to be imposing death sentences for crimes, which requires a full acceptance of authority (or an occupying army, also impossible at the time as the nearest professional army was probably in Byzantium). Note also that the spiritual authority of the time, the Catholic church, was not concerned with punishment of crimes, and was only just beginning to ask secular authorities to punish heretics.

          There were strong rulers who could impose laws – often they are commemorated as lawmakers (and very often their laws are not recorded just to keep historians busy). But I don’t know of any medieval state where that level of authority was maintained from ruler to ruler without disruption and dispute (normally expressed in modern history as civil war, as we like to pretend states continue to exist for some reason). And the norm would be till the thirteenth century at least that localities would be autonomous subject to their agreement to the general principles of law.

          If you want to know more, and have the stomach for an excellent but phenomenally challenging (intellectually – it’s a good read considering how dry the subject material might have been) the first volume of the unfortunately never finished The Making of English Law by Patrick Wormald shows how law functioned in a medieval society, albeit with a Whiggish attitude that law automatically became more complete and central power more effective.

          • MugaSofer says:

            Eleventh-century England is normally acknowledged as the most-developed centralised kingdom in western Europe at the time, and the king’s authority could only be asserted through spectacular violence. He was in no place to be imposing death sentences for crimes, which requires a full acceptance of authority (or an occupying army, also impossible at the time as the nearest professional army was probably in Byzantium).

            I’m not an expert, but I have a hard time believing this.

            William the Conqueror famously abolished – indeed, banned – the death penalty in England during the 11th century (except for in times of war,) which would be difficult if it didn’t already exist.

            Quickly running through the Wikipedia pages for 11th-century English monarchs turns up a number of references to executions. All of nobles, but they do show the death penalty definitely existed in eleventh-century England.

            A quick Google to find scholarly discussion of executions in this period turned up the book Pastoral Care in Late Anglo-Saxon England, which casually mentions that there were so many executions in 10th-11th century England that they had seperate cemetaries for people who were executed, and in some places in England they had had them for some time – partly a religious measure rather than a practical one, but again, you don’t create a cemetary for the people you execute if you’re not executing anyone.

            I would exclude those killed in acts of warfare and otherwise asserting lordship, which is what the harrying of the north was: it was actually an extensive but otherwise normal example of how royal power was exercised in eleventh-century England

            It’s usual to consider mass executions a form of execution. I don’t want to start a quibble over definitions, though.

          • Loris says:

            It’s usual to consider mass executions a form of execution. I don’t want to start a quibble over definitions, though.

            As the one who started the quibbling over definitions, I think he’s not saying they’re not executions, but that they’re the king “asserting lordship”, which doesn’t count as legal process.
            Personally I think this begs the original question – if the ‘law’ is effectively “the king is the guy with the army, and he says what the law is”, then that’s all the legal process you’re going to get.

        • Furslid says:

          I think death penalties can only be counted when its on the ingroup acting within their legal framework. In war, the killings are between groups that don’t accept a common legal framework of authority.

          In addition, a death penalty is viewed as a legitimate process. It doesn’t provoke a feud between those who believe that it was punishing the innocent or an excessive penalty and those who participated in the conviction and death. Members of the ingroup accept that they have the death penalty.

          • russellsteapot42 says:

            So if an Amish community or whatever were to adopt the death penalty for some offense, and then carried it out, and the United States Government or whatever found out and the guy in charge of that community was arrested and sentenced to death for murder, would that count as a death penalty?

          • Furslid says:

            It depends on the perspective you take.

            For Amish who reject all authority of the US government it would be an unlawful killing by a foreign power. For those who view the US government as having legitimate authority over the Amish it would be. I think the perspective that the Amish accept government power, but the government uses a light touch is correct.

            For the instances of killing in war, the perspective of “This government is fully legitimate and accepted by the people we’re invading.” isn’t a useful perspective.

          • Loris says:

            I think death penalties can only be counted when its on the ingroup acting within their legal framework. In war, the killings are between groups that don’t accept a common legal framework of authority.

            I think it has to be recognised that the person facing the death penalty is probably not in the “ingroup” at the time. Many, perhaps most, would claim a different legal framework where given the opportunity. Your distinction would therefore mean that such prosecutions are tiny wars rather than legal cases.

  3. Andrew Hunter says:

    Gypsies are Amentan??

  4. Yaleocon says:

    I’m tempted to think that escaping the mainstream is a more difficult project than this makes it out to be. If you try to organize it based on race–say, an exclusively African-American commune–or if you make it based on traditional religious doctrine (and therefore make it anti-queer), you’re likely to fall afoul of our expanding civil rights code. And even without that, the sheer cultural force of the Internet seems like a powerfully flattening cultural force, giving all of society access to the same information–and same temptations.

    But even if we *can*, I remain unsure that we *should* promote this kind of proliferation of communitarian moral diversity. In some ways, it seems similar to the original federalist ideals of the early United States. And if that system had one lesson to teach us, it might be that you can’t sustain a system when one faction sincerely (and rightly!) believes that the other’s way of life (in that case, slavery) is immoral and needs to be abolished.

    And to anyone who thinks that there aren’t moral divides of that significance in the US today–the number of fetuses aborted since Roe v. Wade is an order of magnitude larger than the number of people that were ever slaves in the US. And the whole deal with trans children and hormones is probably going to only become more intensely argued, as each side gradually comes to believe (rightly or wrongly) that the other is abusing children, whether by exposing them to or preventing them from using hormones. These moral divides exist. Our cultural homogeneity just paves them over enough that we don’t kill each other over them. I’d be cautious to tamper with that system, lest we unintentionally pave the way to another Civil War.

    • 天可汗 says:

      The people who sincerely believed that those other people over there had an immoral way of life that needed to be abolished became, um, the people who sincerely believe that those other people over there have an immoral way of life that needs to be abolished. Except instead of slavery, it was drinking alcohol, and then it was having cultural norms against homosexuality, polygamy, and pederasty (yes, really, look up Wilhelm Reich), and then it was Christianity at all, and…

      Despite that abortion is much more serious to pro-lifers than transgender children or gay wedding cakes are to the people who for some reason keep sincerely believing that everyone else’s way of life is immoral and needs to be abolished, “let’s ban abortion nationwide!” seems to be much less popular than “let’s enforce the baking of gay wedding cakes nationwide under threat of re-education and ensure that every preteen in America has access to puberty blockers and HRT!”. Like, we’re talking the difference between a few gays having to drive a bit further to get a wedding cake and a death toll equivalent to the Holocaust every nine years. And yet…

      • albatross11 says:

        I think transgender children and gay wedding cakes are more popular themes for media to talk about, for culture-war / outrage-farming reasons and because most media types are a lot more socially liberal than the rest of US society. But I very much doubt that there are as many people in the US who are worked up about demanding bakers make wedding cakes for gay marriage, or that transgender children get medical treatment to suppress puberty, than are worked up about banning abortion.

        • Conrad Honcho says:

          But given inertia, does that matter? No, there probably aren’t enough people who are going to ostracize a Christian baker for not baking a gay wedding cake, but it doesn’t matter because when it does happen the state is currently on the side of the offended gays.

      • g says:

        [I tried to post a comment resembling this before and it disappeared without trace. Perhaps included a Forbidden Word or something.]

        You appear to be suggesting that the idea that “those other people over there have an immoral way that needs to be abolished” is held on only one side of the current US culture war, and that it’s the “left” rather than the “right” side. (Note: In the previous version of this comment I tried to clarify what I mean by “left” and “right”, which is not necessarily the same as political left versus political right — but I think what got the comment eaten may have been one or more of the terms I used to try to clarify. So you’ll have to guess at the distinction I’m making. It shouldn’t be too hard.)

        I think that’s a difficult position to hold. Neither side is literally trying to abolish the other, so I take it the question is about the rhetoric each uses and about what they’re trying to make the law do. So let’s compare. The more overheated members of Team Left like to call Team Right, or some of them, Nazis. That’s pretty bad. But the more overheated members of Team Right like to say that Team Left are in league with the actual devil (note for the avoidance of doubt: yes, he is supposed to be worse than Hitler), that their permissive morality is calling down the wrath of God upon the nation — and, er, that they’re responsible for “a death toll equivalent to the Holocaust every nine years”. Which would, again, be worse than the Nazis.

        So much for the rhetoric. What about the law? Well, Team Left is willing to use the legal system to make life difficult for bakers who don’t want to bake wedding cakes for gay couples. (That hardly seems to me to amount to abolishing anyone’s way of life, for what it’s worth.) Team Right, on the other hand, fought very hard to make it impossible for gay couples to have weddings, including delightful rhetorical moves like trying to link homosexuality with pederasty. But I’m sure no one would [looks up a few paragraphs] … oh well, never mind. Team Left makes occasional attempts to stop churches claim tax exemptions at the same time as making political pronouncements from the pulpit. Team Right, on the other hand, put “In God we Trust” on all US currency despite the First Amendment, and got local laws passed requiring schools to teach creationism — oh dear, I’m sorry, “intelligent design” — in science classes.

        So it seems to me like Team Right has a stronger track record of (1) serious abolish-the-other-side rhetoric and (2) serious abolish-the-other-side lawmaking than Team Left.

        Let me repeat that I don’t mean “left” and “right” to imply exactly the standard left/right dichotomy, nor do I think everyone falls neatly into one bucket or the other. “Team Left” and “Team Right” are far from making up the whole population between them.

        As for that final “And yet…”: it seems to me that the obvious conclusion here is that by and large anti-abortion activists don’t really believe that abortion is the moral equivalent of “the Holocaust every nine years” — because if they did, they wouldn’t just be waving placards and making laws to make life unpleasant for women seeking abortions, they’d be starting a civil war.

        • albatross11 says:

          g:

          I think you’re making the common error of giving little weight to things that you yourself wouldn’t find onerous, and giving a lot of weight to things you *would* find onerous. And that makes it easy to decide that your tribe’s efforts to hassle the other tribe are really small, quite pardonable inconveniences, whereas the other tribe’s efforts are nasty and unforgivable.

          And later, w.r.t. abortion, I’m pretty deeply skeptical of your ability to mind-read your political opponents, so you can know that their stated beliefs aren’t really what they believe. For what it’s worth, even antislavery activists (pushing back on something we now all agree was an immense and horrible evil) overwhelmingly didn’t want a civil war to stop it.

          It should be a warning sign, when your conclusions are extremely comfortable ones (my tribe is the good guys, their tribe is insincere and evil). That can be true, but it’s awfully easy to convince yourself of it even when it’s not, and it’s hard to see how you get a lot of new insights about the world convincing yourself of it.

          • Standing in the Shadows says:

            the common error of giving little weight to things that you yourself wouldn’t find onerous, and giving a lot of weight to things you *would* find onerous. And that makes it easy to decide that your tribe’s efforts to hassle the other tribe are really small, quite pardonable inconveniences, whereas the other tribe’s efforts are nasty and unforgivable.

            A perfect and on point historical example:

            “We’re not forcing you guys to disband your cult of YōdHē. And we’re not forcing you guys, the splinter sect of those YōdHē guys, you Chi-Rho guys. We’re not forcing you to disband your little clubs. But you know the rules, you gotta burn a little incense in the Temple of the Emperors. It’s not like it really means anything, it’s just a civic tradition, let’s us know we’re all on the same page, right? What’s your problem? It’s easy, everyone does it…”

          • g says:

            albatross11: It is of course entirely possible that I’m failing to appreciate how differently onerous things might seem to different people. I would be more readily convinced that that’s so if you offered any reason to think I am, rather than the mere assertion that I am.

            Let’s take a concrete example. On the one hand (this is the first example offered by 天可汗 above, so I take it it’s a fair choice), we have prohibiting bakers who make wedding cakes to refuse service to same-sex couples. On the other hand (this is the obvious thing to partner with 天可汗’s choice of example), we have prohibiting same-sex couples to marry. I reckon the first of those (1) affects a lot fewer people and (2) is much less onerous than the second for those whom it does affect.

            Let’s take those one by one. #1: According to Some Guy On The Internet there are about 9000 bakeries in the United States. Let’s suppose that for each of those there are 10 people who could be responsible for choosing whether or not to provide a particular service to a particular customer. That would be about 100k bakers. On the other hand, there seem to be somewhere around half a million same-sex married couples in the US, so about a million people in such marriages. Perhaps some of those people could have been about equally happy in opposite-sex marriages, but I bet it’s not more than half of them, which would still — even with the generous assumption about bakers I made above — mean that at least ~5x as many people would be affected by a same-sex marriage ban as would be affected by a same-sex-wedding-cake requirement.

            Do you disagree? If so, what have I got wrong in the paragraph above?

            What about #2? Well, it seems to me — but, as you say, I may be committing some sort of typical-mind fallacy here — that if I had to choose between (a) occasionally having to make cakes for events I disapproved of (let’s say Nazi rallies) or (b) being forbidden to marry, I would choose (a). And, looking at how much importance people commonly seem to attach to their weddings and marriages, it really doesn’t seem very plausible to me that this is just me being weird. Don’t get me wrong — I wouldn’t much like having to bake cakes for Nazi rallies either. But, especially if it were a legal requirement so that no one would actually take my doing so as evidence of Nazi sympathies, it wouldn’t bother me nearly as much.

            Do you think the above is just me being weird (or, I guess, dishonest)? If so, why?

            I don’t (of course) claim to be able to read anyone’s mind. My “obvious conclusion” could indeed be a wrong conclusion. You raise a comparison with slavery; it seems to me that the activism of the opponents of abortion — who are, after all, quite numerous — is much less vigorous than that of the opponents of slavery (who did, in the end, get a civil war, even if as you say they didn’t want one).

            One last note: it seems to me that everything you say to me applies equally to 天可汗, to whom I was replying. Making judgements about which of two impositions is worse, check. Labelling the “other” side as nasty and unforgiveable while assuming that one’s “own” side’s misdeeds are trifling, check. Reading the minds of one’s political opponents, check. Seeing one’s own side as the Good Guys and the others as insincere and evil, check. So is this … an isolated demand for rigour? It sure seems like one.

          • g says:

            Standing in the Shadows: Interesting choice of parallel. So here’s what seems to me a relevant difference. Jews and Christians can point to central things in their sacred scriptures saying that making sacrifices to gods other than their own is strictly forbidden. So, whatever the merits of our hypothetical Roman’s arguments, if he were a well-informed hypothetical Roman he would not be surprised that the Jews and Christians didn’t see things his way.

            On the other hand, there is nothing in the Bible that says “thou shalt not bake cakes for same-sex weddings” or anything like it. There are even things that seem like they point clearly in the opposite direction. For instance, St Paul tells slaves to obey their masters; I bet that often included things like bringing their masters to the pagan gods’ temples. Jesus was questioned about Roman taxes, and he said to pay them; that tax revenue was definitely used for maintaining Roman temples, not to mention oppressing Jews. The early Christians were almost all living in a society much, much more hostile to Christian ethics and religious sensibilities than the present-day US, and you will search the New Testament in vain for anything telling them to refuse to do work that might end up helping pagans in their paganism.

            Of course this is a separate question from whether being forbidden to refuse to provide your professional services for the use of gay couples at their weddings is a severe, or an excessive, imposition. But, whatever the answer to that, it isn’t an imposition of the same kind as requiring Christians to make sacrifices to pagan gods or pseudo-gods.

            (There are people in the present-day US saying that certain religious things shouldn’t be a problem for people who don’t share the religion in question because they’re “just a civic tradition”. See here. For the avoidance of doubt, I am not claiming that those are a serious imposition either; I don’t think they are.)

          • carvenvisage says:

            @g I hope we all agree that painting opposition to slavery, as ‘just moralising’ in the original comment was braindead or worse. I for one was tempted to start a reply with ‘are you fucking retarded?!’ and see what followed, but didn’t because I think SSC is generally smart enough to see through it, and the tone is generally ummm, non-violent? enough that a spirited denouncement on my part would stand out. (It’s also kind of ‘blase’. And I’m probably not the person to do it in any case, seeing as I’ve got into some pretty spirited denouncing of less uncontroversial things. Those are my excuses for allowing the statement to go without the benefit of my reply and opinion.)

            And maybe there should be something of the sorrt, but in any any case you can rest assured that the lack of one was in at least one case not due to its being viewed as unobjectionable. (Rather the post made clear it was not respondable to at the rational level, and no one has, yet, chosen to engage at the level of spirit or tarring.)

            In any case, I certainly wouldn’t reply with a call for reflection. -That’s imo a pretty presumptious thing, but unless purely malicious, can also imply a compliment, which we can probably agree that ‘omg these moraliers bitching about slavery’ doesn’t deserve.

            (To be clear, none of which proves that here was a good call for reflection, I made no statement, or judgement, on that. I’m sticking to the nice neat clear facts here, which are that the OP was unworthy of such a call.)

          • Mary says:

            if I had to choose between (a) occasionally having to make cakes for events I disapproved of (let’s say Nazi rallies) or (b) being forbidden to marry, I would choose (a).

            False dilemma. But even admitting that for the sake of argument —

            Given there were a lot more things forbidden than marriage to someone of the same sex, are there any others you still deem as intolerable? Or can you tolerate them all except that one?

          • Mary says:

            Jesus was questioned about Roman taxes, and he said to pay them; that tax revenue was definitely used for maintaining Roman temples,

            Remote material cooperation is nowhere near the same as proximate material cooperation.

          • g says:

            Mary, why a “false dilemma”? I was trying to clarify the question: which of these things is worse? And I was trying to do that because I had made a claim about which was worse and albatross11 was, unless I badly misunderstood, claiming that I was wrong about that.

            It seems to me that a good way to assess which of two things is a worse imposition is to think about which would be more unpleasant to have done to you. Do you disagree? If so, what approaches do you think would be better?

            (I don’t understand the “can you tolerate them all except that one?” question. I’m not trying to classify things into tolerable and intolerable; I don’t think that’s a good way to think; but in any case there are plenty of things you could do to me that would be worse than forbidding me to marry, and plenty that would be less bad than requiring me to bake cakes for Nazi rallies occasionally. I suppose I should add, because it looks as if there may be some confusion on this score, that my own marriage happens to be an opposite-sex one and I have no personal interest in marrying someone of the same sex.)

            As for proximate versus remote: well, if you tell me that’s how your moral system works then I suppose I have to take your word for it. But let me check I’ve understood this right: suppose you have to choose between (1) baking a cake worth $10 and selling it to Nazis for $10 (they will then eat it at one of their rallies, and perhaps it will make them feel good), or (2) paying $10 to the Nazi party … are you saying you would find #2 a less painful thing to do, or morally less compromising? Because I feel exactly the reverse. Similarly, if I regarded same-sex marriage as a moral evil, I would far rather bake a cake for a same-sex wedding than give its price to a group trying to promote same-sex marriage.

          • The original Mr. X says:

            On the other hand, there is nothing in the Bible that says “thou shalt not bake cakes for same-sex weddings” or anything like it.

            Possibly because same-sex weddings wouldn’t be invented for another two thousand years?

            There are even things that seem like they point clearly in the opposite direction. For instance, St Paul tells slaves to obey their masters; I bet that often included things like bringing their masters to the pagan gods’ temples.

            More to the point, he also tells people to obey the government. And yet, when ordered to stop being Christian, he chose martyrdom instead. Clearly, therefore, the injunction to obey the governing authorities wasn’t supposed to be absolute.

          • Jiro says:

            I reckon the first of those (1) affects a lot fewer people and (2) is much less onerous than the second for those whom it does affect.

            It only seems to affect few people because it’s a special case of something that affects a lot of people. You could reduce the number of people affected even further by claiming that there are few cases of “bakers on 1000 Main Street forced to bake cakes”.

            How many people are there who will want to refrain from pro-gay speech acts, or otherwise in act in ways that the cake precedent will rule out? Probably a lot more than want to do so using cakes. And probably even more than people who are on 1000 Main Street and want to do so using cakes.

          • How many people are there who will want to refrain from pro-gay speech acts, or otherwise in act in ways that the cake precedent will rule out?

            That is still too narrow. The general issue is whether the decision of who you provide what services to is made by you or the state–voluntary association vs “you may not decide who to do things for or with or not to do things for or with on any basis of decision that the state disapproves of.”

            This particular case is merely one example of one basis for decision that the state disapproves of.

            Which is why I described the decision as a very mild example of slavery. The state deciding whom you can be married to if you want the state to recognize your marriage is a much smaller infringement than the state deciding whom you must provide services to.

          • g says:

            The Original Mr X: That’s why I added “or anything like it”. No suggestion, e.g., that if you are a Christian shopkeeper you shouldn’t sell your goods to people you think might use them in pagan temples. No suggestion that if you are a Christian musician you should refuse to perform at gladiatorial games. Nothing remotely along those lines. (Also, you seem more confident about what happened to St Paul than the actually available evidence warrants.)

            Jiro: I used the example of bakers because I was replying to someone who complained about bakers. I can’t actually think of any non-baker cases in which people have got into legal trouble for anything resembling “refrain[ing] from pro-gay speech acts”; do you know of any? (For that matter, the currently-prominent example of a baker getting into such trouble involves a “speech act” only in an extremely broad sense; so far as I can tell, he wasn’t asked to make a cake that says “Yay for gay marriage!” or even one that says “Adam & Steve 2017”. Just … a cake. Which was going to be eaten at a same-sex wedding. I understand how it might be legally convenient for the baker’s legal representatives to call that a “speech act”, but it really isn’t one in any normal sense.)

            David Friedman: it isn’t obvious to me why it’s worse for the state to place restrictions on who you can refuse service to than for it to place restrictions on who you can get married to. I think certain kinds of freedom of commercial trade may be sacred values for libertarians in a way we outsiders can’t fully appreciate.

          • carvenvisage says:

            the obvious (non libertarian) difference is that forcing people to do something is different from not granting them special tax breaks.

            If we’re not libertarians, then we might think that the government is entitled to use taxes to incentivise things it thinks are good for society, like not drinking quite so much all the time.

            And there’s no such special tax you have to pay for engaging in a practice the government wants to limit.

            _

            On the question of baking for nazis, I’d rather be explicitly extorted than forced to provide my personal labour, yes. The transaction is clear in the first case, while the latter seems to go out of its way to embroil me in proceedings I want nothing to do with. It’s not like nazis can’t read a book on baking or find a pro nazi or pro non-judgement person to bake them a cake.

            And for that matter, if I was a member of a much malgigned political party or movement, or other discrimanted against group, I’d rather not have people compelled to serve me. From the basic monkey politics perspective, if a teacher (authority) forces kid 1 (bully/bigot) to apologise (pay special respect in public) to kid 2 (unfairly targetted party), does that make the second kid safer or more in danger? I think the answer’s not only obvious but stark.

            Insofar as I’m worried about any real discrimination or danger, the very last thing I want is people given excuses and provocations to mistreat me for the sake of cosmetics or convenience.

          • The original Mr. X says:

            The Original Mr X: That’s why I added “or anything like it”. No suggestion, e.g., that if you are a Christian shopkeeper you shouldn’t sell your goods to people you think might use them in pagan temples. No suggestion that if you are a Christian musician you should refuse to perform at gladiatorial games. Nothing remotely along those lines.

            There are plenty of admonitions not to be too closely involved with pagans, which would a fortiori prevent providing supplies for pagan sacrifices and the like. Besides, I don’t think “Is this explicitly condemned?” is a good standard to use: cannibalism and arson aren’t explicitly condemned in the Bible, either, but it would be implausible to claim that Christians should therefore be OK with doing them.

            (Also, you seem more confident about what happened to St Paul than the actually available evidence warrants.)

            St. Paul’s martyrdom is at least as well-attested as most other events in classical antiquity. Whilst I am aware that some people claim to doubt it, the fact that they aren’t similarly sceptical about other events of the same period makes me chalk this up to isolated demands for rigour.

          • it isn’t obvious to me why it’s worse for the state to place restrictions on who you can refuse service to than for it to place restrictions on who you can get married to.

            I don’t have any way proving what moral propositions are true or false, but I think most people view requiring you to do something as more burdensome than requiring you to refrain from doing something, ceteris paribus.

            To take a milder example, asking me to refrain from telling a woman that she is ugly seems like a weaker constraint than asking me to tell her she is beautiful when I in fact think she is ugly.

            Getting a little closer to the case discussed, drafting someone–telling him he must do the particular job you have assigned to him or you will put him in jail–seems like a greater infringement on his liberty than telling him that if he does a particular job–becomes a doctor, say, without state approval–you will put him in jail.

            You put it as “restrictions on who you can refuse service to” which makes it sound passive–but that amounts to “require him to provide service to.”

            Do you have difficulty seeing why someone might see the state commanding someone to do a particular job for a particular customer under threat of punishment if he refuses as a (mild) form of slavery?

          • g says:

            carvenvisage, it’s not quite right to say that you’re “forced to provide your personal labour”. You have the option of not being a baker, after all. You’re merely not allowed to do business as a baker — to advertise your services as someone who will bake cakes in exchange for money — if in fact you systematically refuse to do this in a way that disadvantages members of some protected class.

            (My understanding is that you’re perfectly at liberty to refuse to bake square cakes, or to refuse to make cakes for people with brown eyes, or to refuse to bake cakes that you think will be eaten by members of the armed forces; but there are particular kinds of discrimination deemed by the law to be common enough that the gain from forbidding them exceeds the loss. So you can’t refuse to bake cakes for same-sex weddings or for first-communion celebrations; or for black people or for Jews; or for Muslims or for atheists. I’m mentioning all this just to clarify that what’s going on here isn’t some sort of reckless attempt to limit people’s freedom as much as possible, it’s a specific attempt to do something about specific kinds of discrimination that have actually been a problem.)

            I think your view of the analogous school situation differs from mine. It’s possible that your second child is indeed in more danger — but the point of a vigorously enforced anti-bullying policy (which needs to go further than just making bullies apologize, of course) is not only to help the specific children whose persecutors get punished, but to deter other bullying, and I would expect such a policy to reduce bullying overall.

            “The original Mr. X”: yes, it’s true that the Bible contains admonitions to avoid some kinds of entanglements with pagans. It’s not at all clear to me, though, that they forbid Jews or Christians to sell goods to people they think will use them in pagan sacrifices and the like. I agree that some things can reasonably be considered forbidden to Christians despite not being explicitly condemned in the Christian scriptures, but you may recall that the point I was making was that the analogy “Standing in the Shadows” was making was a poor one because the thing on one side was much more plainly forbidden than the allegedly-corresponding thing on the other side. I stand by that, and I don’t think it depends on any assumption that Christians should consider everything permissible that doesn’t have an explicit condemnation in the Bible; it requires only that we acknowledge a difference between (1) something that is in fact explicitly condemned, and (I’ll add) that pretty much 100% of Christians since the earliest days of Christianity have regarded as unacceptable, and (2) something that is not explicitly condemned and that plenty of Christians seem to have no problem with.

            I am in fact “similarly skeptical about other events of the same period”, with the sole qualification that some kinds of events are especially likely to be fabricated or distorted, and martyrdoms of famous religious figures are high on that list.

            David: as I said to carvenvisage, I think “requiring you to do something” is a (defensible but) misleading expression; what the law actually (allegedly) does is to prohibit you from trading as a baker while refusing to do that job in certain ways. In any case, I am not convinced that the action/inaction distinction is as important as you say. Suppose I’ve been paid for some service but haven’t delivered it yet; then the law will compel me to either perform the service or refund the money, and I guess you won’t object even though I’m being forced to do something — perhaps because I’ve taken action that incurs a duty to do it. Well, the argument here would be that calling yourself a baker incurs a general duty to perform a baker’s services for those who are willing to pay you to do so. (Though in fact what the law enforces is weaker than that, because it will let you refuse to do that except when doing so discriminates against people in a limited number of protected classes.)

            I do, for the avoidance of doubt, see that there is a genuine infringement of liberty here, and as I’ve said elsewhere I acknowledge that in itself that is a bad thing. (Which is a separate question from whether overall it’s a bad thing.) But “a (mild) form of slavery”? Only in the same way that ordinary employment is a “mild form of slavery”. That is: it has some things in common with slavery, but a large part of what made slavery so bad was exactly its non-mildness, and calling something immensely less severe “slavery” is misleading rhetoric.

        • Garrett says:

          The political left in the US has made it impossible for me personally to buy/own/have the gun I want. No way, no how. Despite it being less powerful than others which I can legally buy.

          They aren’t trying to ban me, personally. They are trying to make it impossible to care about/enjoy/participate in the things that I do value. I consider that onerous.

        • Watchman says:

          The more overheated members of Team Left like to call Team Right, or some of them, Nazis. That’s pretty bad. But the more overheated members of Team Right like to say that Team Left are in league with the actual devil (note for the avoidance of doubt: yes, he is supposed to be worse than Hitler), that their permissive morality is calling down the wrath of God upon the nation — and, er, that they’re responsible for “a death toll equivalent to the Holocaust every nine years”. Which would, again, be worse than the Nazis.

          In the interests of mathematical and historical accuracy and really bad taste that is at least probably offensive to everybody, this needs correcting.

          I am not sure if there is an exact dating for the holocaust, but it has to be contained within the bounds of the second world war in Europe, and therefore has to have lasted less than six years, which is a shorter period of time than the nine years (presumably the number here was chosen to allow the comparison) cited for abortions. So the number of aborted babies murdered is not as bad as the holocaust, which is of course the only measure that matters in this sort of debate.

          Also, the devil is by definition worse than Hitler. Embodiments of the opposite of God who torture people for all eternity are probably not in the same sphere of comparison as human beings, however evil. Of course, if you are an atheist left-tribe member, then the comparison with a figment of a collective imagination (and a surprisingly ill-defined one – the Devil is not exactly a consistent Biblical presence) is probably fairly inconsequential, but it’s the thought that counts…

          • Jiro says:

            That conception of the Devil would require that innocent people get tortured in Hell. It was my impression that people who believe in Hell at all believe that people are sent to Hell for sinning as punishment for the sin and that any torture there is approved by God.

          • 天可汗 says:

            I am not sure if there is an exact dating for the holocaust, but it has to be contained within the bounds of the second world war in Europe, and therefore has to have lasted less than six years, which is a shorter period of time than the nine years (presumably the number here was chosen to allow the comparison) cited for abortions. So the number of aborted babies murdered is not as bad as the holocaust, which is of course the only measure that matters in this sort of debate.

            “At worst, about two thirds as bad as the Holocaust” isn’t exactly reassuring.

          • g says:

            I would, er, credit the Holocaust to the Nazi regime as a whole rather than specifically to the second world war. That would be 1933 to 1945, or about 12 years. Which is longer than 9 years.

          • Aapje says:

            @g

            That depends on how you define the Holocaust.

            The racial separation began in 1933, the ethnic cleansing in 1938 and the genocide in 1939.

            It doesn’t seem correct to claim that the genocide itself started in 1933.

          • g says:

            Aapje: Seems to me that the separation was just the earliest stage, and the mass murder the latest stage, in the process of Getting Rid Of The Jews, which started as soon as the Nazis took power and was brought to an end by their defeat in WW2.

            But obviously this is a rather meaningless calculation to be doing; the idea was always to get rid of them all (along with various other groups we shouldn’t forget that also got massacred in the Holocaust — gay people, Jehovah’s Witnesses, Romani, etc.) and if they’d had the Thousand-Year Reich they wanted, for most of those thousand years they might have been murdering fewer people per year. Or, who knows?, perhaps they’d just have gradually broadened the categories of people who needed exterminating. (Other reasons why the comparison is kinda nonsensical: different region, different number of people, very different kinds of death involved, very different motivations.)

          • The original Mr. X says:

            @ Aapje:

            Actually the genocide got going a couple of years later; the Nazis had killed a lot of Jews from the start of the war, but total extermination wasn’t adopted as a plan until 1941, which is usually considered to be the start of the Holocaust.

        • sourcreamus says:

          Gay weddings were never illegal, they were just unrecognized. At any point a gay couple could have hired any willing clergyman to witness them saying vows to each other and they would not have been arrested or punished. They just would not have received the recognition of their marriage by the state.
          In contrast people who refuse to bake cakes for gay weddings are prosecuted and fined by the state.

          • shenanigans24 says:

            And that a big difference. “Your moral actions are illegal and will be punished”, vs “I disagree with your moral actions and will not participate.”

            The first is authoritarianism, the second is tolerance.

          • g says:

            shenanigans24, I’m not sure I’m convinced that that distinction applies the way you say it does.

            Consider a scenario where the government doesn’t recognize same-sex marriages. You can say that that’s a mere unwillingness-to-participate, on the grounds that the government isn’t doing anything to stop two men or two women living together, loving one another, having sex with one another, adopting the same name, etc. True enough. The government isn’t regulating their actions as individuals, only their formal status in the eyes of the law.

            But the government also isn’t doing anything to stop individuals from not baking cakes for same-sex weddings. Why, just last week I baked at least one cake but no same-sex wedding cakes at all, and no one came banging at my door to arrest me for it! What is regulated is the combination of (1) *announcing yourself to the world as a purveyor of certain services* and (2) declining to provide those services to certain categories of customer.

            And that distinction, between *making cakes casually as an individual* and *publicly offering a commercial cake-selling service*, seems to me rather the same sort of thing as the distinction between *being partners informally* and *being married in the eyes of the state*. Not the exact same thing, of course; but the same sort of thing. The more public, formal thing gets regulated; the more private, informal thing doesn’t.

            So, if you want to bake cakes, and even sell them, without having the government interfere when you refuse to sell them to black people same-sex couples, you can do it. Sell cakes out of your home kitchen, don’t operate formally as a business, keep it all unofficial. Of course you may get less business that way, and it may (e.g.) be more awkward tax-wise, but that’s the price you pay for keeping out of the eye of the state. Just as ten years ago you could have a same-sex kinda-sorta-marriage by doing it unofficially and not actually calling yourself married, and the drawbacks (some people wouldn’t recognize you as married, you didn’t count as married for purposes of insurance and tax and so forth, etc.) were the price you paid for keeping out of the eye of the state.

          • Nabil ad Dajjal says:

            @g,

            I’m going to try not to get sucked into the Cake Debate, because it’s endless and exhausting. Just one quick point about baking:

            Practically speaking, it’s illegal to bake a cake and sell it without “publicly offering a commercial cake-selling service” as you put it.

            Before she became a teacher my mother was a pastry chef and briefly ran an illegal bakery out of my house. She baked to the same standard as a commercial kitchen but our kitchen could never have passed inspection because she didn’t buy the insanely expensive commerical grade ovens / cookware / etc that they require. One of her friends was busted and put out of business for exactly that.

            So there’s not really an opt out here. You can be a commercial baker and it’s illegal to refuse to bake gay cakes. Or you can be a non-commercial baker and it’s illegal to bake cakes at all.

          • Matt M says:

            It’s so weird to me that society accepts the idea that somehow, two things you have the right to do individually cease becoming rights if you combine them.

            Like, you have the right to associate with whoever you’d please. And you have the right to engage in commerce and sell wares. But you DON’T have the right to engage in commerce and sell wares to whoever you please.

            It’s so bizarre.

          • Standing in the Shadows says:

            Right up there with you can have sex for free. And you can get paid to have sex with someone who is also getting paid, as long as it’s in front of a camera. But the person you are having sex with can’t pay you to have sex with them, camera or no…

          • The original Mr. X says:

            @ g:

            In at least one of the cake-baking cases, the baker in question regularly supplied the couple with cakes, he just didn’t want to cater for their wedding. Describing that as “refusing to serve certain categories of customer” is misleading.

          • g says:

            Matt: It doesn’t seem all that surprising that A and B can both be (in general) rights while A-at-the-same-time-as-B sometimes isn’t. In general, I have the right to tell lies; I have the right to advertise my goods or services; but the government may object if I tell lies when advertising my goods or services. I have the right to do things for money; I have the right to vote how I please; but the government may object if I sell my vote for money. I have the right to have sex with other people; I have the right to spend time with my 11-year-old daughter; but if I try to combine those then again the government may take an interest.

            The point in all these cases — yours included — is that a right to do X doesn’t mean that there’s no circumstance in which doing X can be forbidden, it means that doing X as such is not forbidden. And X-as-such can be fine and Y-as-such can be fine even if there is some interaction between X and Y that makes combining them a problem.

            “The original Mr. X”: Yes, sorry, it’s not quite right to say that these bakers are refusing to serve particular classes of customers; my apologies. Actually, it’s kinda difficult to give a good concise description of what they are refusing to do — e.g., it’s not refusing to provide particular services, either (a wedding cake for a same-sex couple might be exactly the same as a wedding cake for an opposite-sex couple), and it’s not even the identity of the customer as such that’s relevant: presumably they would likewise refuse if someone’s (heterosexual, married) mother came and asked for a cake for her son’s same-sex wedding. It’s more that they won’t sell a thing that they expect to be used in a particular way.

            I should say, for the avoidance of doubt, that I am not claiming that it’s right for bakers to be forbidden to refuse to make cakes for same-sex weddings. I just don’t think it’s (1) clearly worse than forbidding people to enter into same-sex marriages or (2) evidence of an attempt to wipe out Christianity (or conservatism or any other set of values / way of life) as was claimed upthread.

          • albatross11 says:

            Some years ago, I was working as a consultant, and my company took a contract with an online gambling company. (At this point, there wasn’t any kind of big push by the Feds to shut down online gambling, so this wasn’t a legal issue.) After working on this for awhile, I realized I was really uncomfortable with it, and asked my boss if I could avoid working on this kind of thing in the future. He arranged things so I never got assigned online gambling clients again.

            So what happened here? I have my own moral beliefs, which may or may not agree with yours or anyone else’s. And I was allowed, in this situation, to refrain from working on a project that offending my moral beliefs, one that I thought made the world a worse place. There wasn’t any law requiring my boss to be willing to adapt to my preferences, and on the other hand, I had (and have) salable skills and could look for a job I liked better, if I needed to. I’m glad there wasn’t some law requiring that I or my company take such contracts.

            I think the ability to decide that you don’t want to do business with someone who’s involved in something you morally oppose is a pretty valuable thing. I also think it’s *amazingly easy* to blow it off as not a valuable thing, when the moral values being trampled aren’t your own. And I suspect different people put a different value on not having to take part in evil.

            The tradeoff here is that this enables discrimination. As best I can tell, there is simply no way to avoid this conflict. If I am allowed to refuse to do business with you–whether that’s not selling wedding cakes to gay couples, not selling torches to neo-Nazis planning a rally, or not selling shock batons to the Chicago Police Dept.–I am imposing a cost on you. If enough people do so, then that cost will become a big deal–you’ll find it needlessly hard to get through your daily life.

            If I am *not* allowed to refuse to do business with you, then people with minority moral/religious beliefs either get forced by law into doing things they believe are wrong, or they get forced out of a business they’re in because they don’t want to violate their beliefs. And this will land pretty hard on communities with minority moral/religious beliefs.

            And the moral principles don’t always line up on red/blue tribal lines, either. A boycott is precisely a group of buyers refusing to do business with someone they think is too involved in some evil action. A divestment campaign is an attempt to get investors to refuse to invest their money with companies they think are too involved in some evil action. A company firing someone for holding/expressing offensive views is, again, deciding they don’t want to continue doing business with someone who’s involved in some evil action or movement.

          • g says:

            albatross11: I agree with pretty much everything you say. Forbidding people to do business with whomever they choose on whatever terms they choose is a restriction on their freedom, and in some cases they may feel it as an onerous restriction; this regrettably trades off against discrimination, and a variety of ways to make the tradeoff are defensible. I’ve been kinda-defending the Oppression of Bakers because (1) I think what some people have been saying about it on the other side has been seriously overheated (the original comment I replied to implied that it was one element in some sort of attempt to wipe out Christianity or something), (2) some varieties of being forced to engage in business transactions you find morally tainting are worse than others, and this seems an unusually not-so-bad one (the degree of endorsement involved in supplying a cake for a wedding is really not very great, and likewise the degree of practical assistance it gives to The Big Homosexual Lobby), and (3) while having trouble procuring wedding cakes isn’t exactly a serious kind of oppression, there’s enough anti-gay prejudice about to make the argument “if we allow this sort of discrimination, it will end up making gay people’s, and even more so gay couples’, lives really unpleasant because lots of people will refuse to do business with them” somewhat credible. So the point of requiring those bakers to make those cakes isn’t just that we want same-sex couples to be able to have nice weddings, it’s also that we don’t want to take any steps down a road that leads to all the shops and restaurants and hotels and whatnot in town refusing to serve people they think are gay.

            [EDITED to add:] Of course you might reply to that last bit “Whaddya mean ‘we’?”. I don’t mean to imply that everyone reading this wants those things. Only that some people do (I’m one of them, as it happens) and that this sort of want is part of why there’s this sort of legal restriction.

          • Nick says:

            (3) while having trouble procuring wedding cakes isn’t exactly a serious kind of oppression, there’s enough anti-gay prejudice about to make the argument “if we allow this sort of discrimination, it will end up making gay people’s, and even more so gay couples’, lives really unpleasant because lots of people will refuse to do business with them” somewhat credible. So the point of requiring those bakers to make those cakes isn’t just that we want same-sex couples to be able to have nice weddings, it’s also that we don’t want to take any steps down a road that leads to all the shops and restaurants and hotels and whatnot in town refusing to serve people they think are gay.

            On what grounds, though, would shops, restaurants, or hotels refuse to serve gay people? What ‘gay agenda’ are they advancing if they were to serve them? If you’re going to make a slippery slope argument here, show us how the logic of “I don’t want my business’s name all over your wedding photos” generalizes to “I don’t want my business’s name all over your grocery bags.”

          • The original Mr. X says:

            (3) while having trouble procuring wedding cakes isn’t exactly a serious kind of oppression, there’s enough anti-gay prejudice about to make the argument “if we allow this sort of discrimination, it will end up making gay people’s, and even more so gay couples’, lives really unpleasant because lots of people will refuse to do business with them” somewhat credible. So the point of requiring those bakers to make those cakes isn’t just that we want same-sex couples to be able to have nice weddings, it’s also that we don’t want to take any steps down a road that leads to all the shops and restaurants and hotels and whatnot in town refusing to serve people they think are gay.

            I see no evidence that this is a realistic prospect, and plenty of evidence of companies tripping over themselves to show off their pro-gay credentials.

          • g says:

            It doesn’t seem difficult to imagine why a hotel might refuse to serve gay people, or more precisely gay couples. Here’s an example from the UK, a place generally more liberal in these matters than much of the US.

            No doubt such things aren’t likely to happen in, say, San Francisco. But I wouldn’t want to bet against them in Alabama.

            Restaurants, likewise. “Just think of the damage to our reputation if it becomes known that we’re the sort of place that those people go for their romantic dinners!” Again, in many places no one’s going to worry about such things, but there are places where there’s still a whole lot of anti-gay sentiment.

            The point isn’t that there’s a really good reason why hotels, restaurants or shops would refuse to serve gay people or same-sex couples. The point is that in some places there are really strong prejudices that might tempt them to do so. This sort of thing is still within living memory. What’s that you say? Such things are in the past now, and for sure no one thinks about gay people that way? Well, I’m not so sure. (Though this level of explicitly-stated prejudice seems to be rare.)

            Nick: you speak of ‘the logic of “I don’t want my business’s name all over your wedding photos”’ but I don’t see how that’s relevant. (1) So far as I know, most wedding photos — even ones with the cake in them — don’t have the baker’s name on them anywhere. I can’t think of any wedding I’ve been at other than my own where I had any idea who made the cake. (2) I have heard of cases where bakers refused to make cakes for same-sex weddings and got in trouble for it. I haven’t heard of any where bakers asked that their names not be publicized at those weddings and got in trouble for it.

          • It’s worse than that, Matt..you have the right to drink, and the right to drive…

          • Forbidding people to do business with whomever they choose on whatever terms they choose is a restriction on their freedom, and in some cases they may feel it as an onerous restriction; this regrettably trades off against discrimination, and a variety of ways to make the tradeoff are defensible.

            You left out a critical point–that discrimination is not a restriction on freedom, in the moral or political sense of the word (it is a restriction on power, which on some contexts is referred to as freedom).

            I don’t, at least as I see it, have any right to have another person interact with me just because I want him to–he doesn’t belong to me. I only have the right to interact with him if both of us want the interaction to occur.

            For a context in which I think almost everyone could see that point, consider marriage. The refusal of the woman I love to marry me would impose a much larger cost on me than the refusal of a baker to bake a wedding cake for me. But it woudn’t be a restriction on my freedom, because I don’t have the freedom to marry someone who doesn’t want to marry me.

            The tradeoff you are describing is not one freedom for another, it is one person’s freedom vs accomplishing a goal that someone else considers desirable.

          • g says:

            David, I don’t see that as a “critical point” and I don’t see why it should be one in the absence of an axiom that only restrictions on freedom matter. I don’t endorse any such axiom and don’t see why anyone should.

            In particular, I think discrimination (in the sense of treating some people badly merely because of irrelevant factors like the colour of their skin or who they fall in love with) is usually harmful even though it isn’t a matter of restrictions on anyone’s freedom.

            (I remark that such discrimination does comonly reduce the freedom of the people discriminated against, though. If you’re paid less, you have less freedom to pursue your goals by spending money. If some shops won’t serve you, you have less freedom to pursue your goals by buying things. Etc. So despite the etymology of the word “libertarian” our difference here is not so much that you give higher priority to freedom than I do, it’s more that you’re interested only in certain particular ways in which people can increase or reduce others’ freedom.)

      • Immanentizing Eschatons says:

        Parents not letting their children use puberty blockers and HRT is the right* imposing itself on others forcefully.

        *well, not just the right, still plenty of people on team left who haven’t come around yet on trans stuff, but in terms of coalitions and culture war, one can basically say that

        • Mary says:

          Parents have the authority to decide on their children’s medical treatment.

          For a parent to refuse to use powerful drugs on a child for a condition that will in the vast majority of cases resolve itself with nothing more than not encouraging the child is among the most basic duties of parenthood.

    • @ Yaleocon:

      And if that system had one lesson to teach us, it might be that you can’t sustain a system when one faction sincerely (and rightly!) believes that the other’s way of life (in that case, slavery) is immoral and needs to be abolished.

      As kindly and patiently as I can manage, let me just remind everyone that this is not what happened.

      Because slavery was ultimately in fact abolished, all at once with zero compensation, people have a lazy tendency to backdate that intention to before the Civil War.

      But “immediate abolitionists” who advocated such a policy were never more than 1% of public opinion in the North before the war — look up any history of abolitionism.

      Abolitionism was a vocal faction, but a tiny minority. They loom large in our history because they were right, and we honor them for that, but at the time, they were pariahs. Even in the North, anti-abolitionist mobs would show up from time to time to disrupt their meetings, burn their buildings, destroy their presses, and sometimes murder them.

      There were people, like Lincoln, who called themselves “anti-slavery”, but that did not equate to abolitionism. They were “against” what they called the Slave Power, in approximately the same sense that mainstream environmentalists are “against” the oil industry.

      Arguments about slavery before the Civil War were about issues on the edges: slavery in the District of Columbia, expansion of slavery into the territories, the treatment of fugitive slaves, etc. Directly attacking slavery in the South was largely unthinkable for anyone to the right of William Lloyd Garrison.

      Both sides believed that if slavery were confined to a limited territory, and not allowed to expand, it would eventually die. That’s why pro-slavery Southerners fought for the annexation of Texas and the creation of Kansas as a slave state, and why anti-slavery Northerners opposed those things. The future of slavery was at stake.

      Disagreement over the morality of slavery led to the war, but again, the war didn’t start because one side wanted to abolish the other’s defining institution.

      Rather, the South, accustomed to compliant leaders in Washington, pre-emptively seceded following the election of a president who was unsympathetic.

      And when President Lincoln called up troops in response (an extraordinarily polarizing moment), he wasn’t calling for them to go invade the South and free all the slaves. Rather, they showed up to put down the rebellion and defend the Union and the Constitution.

      You know, that same Constitution that contained the 3/5 compromise and other concessions to slavery.

      In the end, yes, the Northern troops invaded the South and freed all the slaves. But only after the two sides had escalated to total war. And perhaps just as important, after the pro-slavery voices had removed themselves from the moral conversation in the North.

      • Matt M says:

        Minor nitpick: The 3/5 clause is not a “concession to slavery.” The slave states would have greatly preferred slaves to “count as a full person” for the purposes of representation, because it would have increased their relative power in Congress. It was the enlightened free states of the North who demanded that slaves “not be counted as persons” at all, and 3/5 was reached as a compromise between the two groups.

        • Minor nitpick: The 3/5 clause is not a “concession to slavery.”

          That’s true, but it was a compromise with slavery. Had there not been slavery, there would have been no need to have the discussion.

          The more explicit concession I was thinking of was the importation clause, which prohibited Congress from banning the importation of slaves (e.g. from Africa) for at least 20 years.

      • Mary says:

        The overwhelming majority of slaves were freed under the laws and customs of war, as seized contraband that the government just didn’t happen to want. Which even pro-slavery but pro-union Northerners could support

      • Yaleocon says:

        I think you understate the degree to which the institution of slavery was, in fact, a substantive moral issue between South and North. Yes, the Missouri Compromise, Compromise of 1850, and Kansas-Nebraska Acts were “on the edges”, just like 20 week/24 week abortion limits and more stringent background checks for gun licenses are issues “on the edges”. The edges are were the battle is fought, even when there are strong convictions on both sides. Compromise does not imply agreement; if anything, the opposite is true.

        There was strong disagreement on the issue of slavery, and the most charged political moments of our antebellum politics were driven by those differences. It’s hard to read William Henry Seward’s Higher Law speech, in reference to the Compromise of 1850, as doing anything but morally decrying the institution of slavery. And there were many other examples of rhetoric of this kind — take the Brooks-Sumner affair, which started as another dispute of this kind; look at the quotes under the “Background” tab. Yes, he decried “Slave Power”, but only in the context of slavery itself being “polluted in sight of the world.”

        And outside the Senate, the divide was even more stark, and compromise nowhere to be found. What was Bleeding Kansas a dispute over, if not slavery? Were John Brown’s actions at Pottawatomie Creek and Harpers Ferry just not that important in leading to the Civil War? Union soldiers seemed to think otherwise. They sang “John Brown’s Body”, and then eventually the “Battle Cry of the Republic” — their rallying cry, “Let us die to make men free.” Responsible historiography makes slavery, and the moral conversation around it, the primary cause of the Civil War.

        There were relatively few absolutist abolitionists, and many Northern Copperhead Democrats, and a desire to keep the Union together was strongly motivating. But the only reason the Union threatened to divide in the first place was slavery. It all comes back to that issue. Rank-and-file men on either side may not have seen that, and may have justified it to themselves in different, more proximate terms — but lofty causes are rarely transparent to the meek, and the decisions that led to the Civil War were fundamentally driven by a dispute over the future of slavery.

        • I think you understate the degree to which the institution of slavery was, in fact, a substantive moral issue between South and North.

          I don’t understate that at all. I completely agree that it was THE substantive moral issue between North and South.

          But given the moral objection, the strong disapproval, what was to be done?

          To extend the analogy I mentioned before: today, every increment of fossil fuel taken out of the ground and burned is a step toward climate catastrophe and therefore (at least arguably) immoral. But is the solution to immediately shut down the oil and coal industries? Almost no one advocates that.

          Slavery was central to the South’s economy, as much as oil and coal are to ours. It was indirectly a large factor even in non-slave states: shirts worn in Boston were made from Southern plantation cotton. And of course slaveholders held tremendous power in American politics right up through 1860.

          Yes, the Missouri Compromise, Compromise of 1850, and Kansas-Nebraska Acts were “on the edges”, just like 20 week/24 week abortion limits and more stringent background checks for gun licenses are issues “on the edges”. The edges are were the battle is fought, even when there are strong convictions on both sides.

          All true. But it was socially unacceptable in most circles to call for an immediate end to slavery in the Southern states. There was a very widespread view that abolition would infringe on the property rights of slave owners, and that compensating them would be impossibly expensive.

          Similarly, today, someone who (as you mention) advocates for universal background checks on gun sales will vigorously disclaim any desire to confiscate all privately-held firearms, or even just handguns. To call such a person a “gun-grabber” would be rejected as vile slander. Extremists who openly call for such confiscation are seen, by politicians and activists advocating pragmatic measures like background checks, as an embarrassment and a hindrance to the cause.

          A very similar relationship existed between “anti-slavery” (mainstream) and abolitionist (extremist) factions in the 1840s and 1850s.

          In his 1918 autobiography, Andrew Dickson White, who was an ardent anti-slavery activist in the 1850s, sneers at abolitionists as follows:

          But the abolition forces had the defects of their qualities, and their main difficulty really arose from the stimulus given to a thin fanaticism. There followed, in the train of the nobler thinkers and orators, the “Fool Reformers,” sundry long-haired men and short-haired women, who thought it their duty to stir good Christian people with blasphemy, to deluge the founders of the Republic with blackguardism, and to invent ever more and more ingenious ways for driving every sober-minded man and woman out of the anti-slavery fold. More than once in those days I hung my head in disgust as I listened to these people, and wondered, for the moment, whether,
          after all, even the supremacy of slaveholders might not be more tolerable than the new heavens and the new earth, in which should dwell such bedraggled, screaming, denunciatory creatures. (Link)

          He hung his head in disgust! And White was surely even more vehemently anti-slavery than Abraham Lincoln was at the time. “Anti-slavery” and “abolitionist” were two distinct and competing points of view.

          What was Bleeding Kansas a dispute over, if not slavery?

          It was precisely a dispute over whether slavery should be expanded to a new state. As I wrote above, both sides assumed that slavery needed to expand its geographic reach to survive. Kansas represented the future.

          Were John Brown’s actions at Pottawatomie Creek and Harpers Ferry just not that important in leading to the Civil War?

          Of course that was important. Remember that it was the South who started the war.

          John Brown fed the paranoia of the South, but before the war started, the raid had very little support in the North. He was, after all, leading an armed insurrection. Even William Lloyd Garrison (revered today as an uncompromising abolitionist) called Brown’s actions “misguided, wild, and apparently insane.”

          Union soldiers seemed to think otherwise. They sang “John Brown’s Body”, and then eventually the “Battle Cry of the Republic” — their rallying cry, “Let us die to make men free.”

          Being in a shooting war with the exact same people who hanged John Brown surely changed Notherners’ perspective on him. And the Battle Hymn lyrics were written by Julia Ward Howe, who had been an abolitionist before the war.

          The war changed things very quickly. It was less than two years from Fort Sumter to the Emancipation Proclamation. The 13th Amendment passed the Senate only sixteen months after that.

          There were relatively few absolutist abolitionists, and many Northern Copperhead Democrats, and a desire to keep the Union together was strongly motivating.

          Had Lincoln been an abolitionist in 1860, he never could have been nominated or elected. Even most Republicans would have deserted him.

          Similarly, if Barack Obama as a candidate in 2004 had advocated (say) the confiscation of all private handguns, or an immediate and permanent end to oil and coal extraction, he wouldn’t have been nominated or elected either. Even most gun control advocates or environmentalists would not have found such an extreme platform appealing.

          • Standing in the Shadows says:

            Even most gun control advocates or environmentalists would not have found such an extreme platform appealing.

            Have you ever been to San Francisco, Portland, or Seattle? Or for just the first point, New York or Chicago?

          • Yaleocon says:

            Ok, I think we agree a great deal more than I assumed we did. Mea culpa for misinterpreting you, insofar as that’s the case. Re-reading, I also realize that I most likely grandstood (grandstanded?) a little more than appropriate. Sorry for that too.

            Now, in light of what we agree on, I think my original case is supported. There are moral differences in America today that have this same character. Relatively few people really want every last zygote saved, just as relatively few want every abortion legal up until the last moment of pregnancy. Ditto for having the right to have artillery in your backyard, or confiscating every gun everywhere. This parallels the fact that very few people were full-on abolitionists, and few went with the full-bore Calhounian “slavery is a positive good” line of reasoning. However, this seeming moderateness of both sides can belie the fact that the issues themselves are very serious, and could in fact be the kind of thing wars are fought over.

            And if people self-select into communities founded in large part around those common beliefs, ensuing polarization could result in escalating strife which might become such a war. And unless we want to heighten the contradictions and immanentize the eschaton of the just war to come, we should probably be wary of reorganizing society in this way (or, more particularly, making the structural changes that would enable this reorganization).

            I think a recognition of this kind is actually in your original comment:

            And perhaps just as important [as a cause], after the pro-slavery voices had removed themselves from the moral conversation in the North.

            Immanentizing the Archipelago would isolate our moral conversations, even more than social media is already doing so. I think we have reason to worry about that trend, and I think that’s true in light of what we both agree on about the history of the Civil War.

          • Immanentizing the Archipelago would isolate our moral conversations, even more than social media is already doing so. I think we have reason to worry about that trend, and I think that’s true in light of what we both agree on about the history of the Civil War.

            Strongly, strongly, strongly agreed. Thanks.

          • @ Yaleocon

            Ok, I think we agree a great deal more than I assumed we did. Mea culpa for misinterpreting you, insofar as that’s the case. Re-reading, I also realize that I most likely grandstood (grandstanded?) a little more than appropriate. Sorry for that too.

            Thanks, I appreciate that.

            For my part, I’m embarrassed to say that only now do I notice and understand the significance of your user name.

          • Extremists who openly call for such confiscation are seen, by politicians and activists advocating pragmatic measures like background checks, as an embarrassment and a hindrance to the cause.

            It does not follow that the activist don’t agree with confiscation, only that they are not willing to say they do.

            I spent some time a while back attending a city council meeting which was considering, among other things, gun regulation.

            The people speaking for the regulation put all of their arguments in terms of the harms produced by guns, such as increasing the suicide rate. The regulation was a requirement than guns be either locked up or have trigger locks on them when the owner was out of the house, which would have no effect on the suicide rate–no direct effect on any of the harms the speakers were describing. One speaker pointed that out, arguing for a much stronger regulation.

            The only sense I could make of the speeches and the regulation was that the objective was to reduce the number of guns out there by making owing a firearm somewhat more expensive and less convenient. It is hard to see that as anything other than the policy of someone who would like eliminate at least all hand guns, but isn’t in a position to do so.

            I made that point, analogizing it to states that cannot make abortion illegal so do their best to make it as inconvenient as possible.

  5. Qays says:

    The interesting thing about the Somali example is that this isn’t some sort of unique “traditional Somali legal system” at all, it’s just the sharia. But it’s also not what anyone, including hardcore theocrats like Isis, ever means when they talk about implementing the sharia: what they mean is a fundamentally “modern state” legal system with some Islam-flavored rules and punishments, or a modern state legal system with a subsidiary sharia in miniature legal system for certain specific disputes (often divorce and inheritance). Once a given society has replaced a system of jurists’ law with one of state law it’s very difficult to even conceptualize going backwards, even if you’re sure that’s what you want to do.

    • Scott Alexander says:

      Not sure it’s “just” the sharia. The book treats Islamic and Somali law pretty differently, and Somali law has some parts I don’t recognize from Islam (like “you kill someone from my clan, I get to kill two people from yours”)

      • rash92 says:

        yeah that’s definitely not part of sharia. sharia is ‘you kill someone, you get the death penalty or you pay blood money to the family, at the discretion of the family.’ but there’s no laws saying someone who didn’t commit a crime but their family/ tribe did gets a punishment.

        (there’s similar stuff in pakistan that’s like that where your family is punished for your crimes, and again that’s a separate thing to sharia, it’s traditional pakistani/ tribal law).

      • Qays says:

        That’s fine, though: Islamic law has no problem treating customary law as a valid source of precedent. It’s called ‘urf, from the ‘-r-f root “to know,” and if you read legal texts or case records from any premodern Islamic society you’ll see it all over the place (though some of the madhhabs may call it by different names). The notion that customary law lies outside the sharia is itself a symptom of the drift towards a modern state legal system. Western scholars go to countries like Somalia, see stuff that they don’t recall from their Quran class, and deem it “traditional law” as opposed to “Islamic law,” but traditional law is generally (or has generally been until recently in some places) a subfield of Islamic law for its practitioners. And Salafis make the same mistake, deeming heretical practices that have been longstanding parts of the sharia for centuries simply because they do not have a textual basis.

        The traditional Somali system that Friedman describes looks an awful lot like “applied sharia” of the sort that used to be the norm in nomadic parts of the Islamic world until the colonial encounter. The “applied sharia” of urban areas would differ in certain particulars, just as that of Indonesian fishing villages would differ from both of the preceding examples, but we’re talking about different applications of the same overarching system.

        @rash92: I wouldn’t be so quick to deem things “definitely” not part of the sharia. The sharia has encompassed a lot of “parts” over the last 1300 or so years.

    • Watchman says:

      You can’t say ‘the sharia’, since sharia is simply a learned interpretation of the wisdom in the Qu’ran and the ahadith (and which hadith can be included can be a matter of debate), and is therefore specific and local. So you might be more right than Scott gives you credit for about sharia, without having read the book or knowing the evidence to allow me to substantiate this hypothesis, but that may be because sharia can be used to justify local practices by selecting the examples and priortising those aspects important to the user. There is (despite the efforts of at least one Egyptian university) no single corpus of sharia for any sect of Islam I have encountered (some of the smaller ones might however be small enough that they can have a set sharia, which would function presumably like the requirements of the Amish churches).

      • There is (despite the efforts of at least one Egyptian university) no single corpus of sharia for any sect of Islam I have encountered

        This makes Islamic law sound more fractured than it is. A large majority of Muslims are Sunni. There are four madhabs, schools of law, in Sunni Islam. They agree on most of the law, tend to disagree on relatively fine points–how many lashes as punishment for a particular offense, exactly what drinks are covered by the prohibition on wine.

        As I interpret the terminology–not everyone agrees–none of them believe that they know what sharia is, because sharia is law as it exists in the mind of God. Their theories are fiqh, jurisprudence, the human attempt to approximate the implications of the divine commands.

        • Watchman says:

          Point taken, but I am not convinced that interpretations within the schools are that consistent. The conflict in the UK between the ‘traditional’ desire for teachers from Pakistan and the use of teachers (taught by teachers from Pakistan in the main…) from the UK is admittedly partially about legitimacy, but mainly about trying to maintain a certain sort of teaching. Yet the teachers in question are in the same schools, and probably use the same resources (modern technology might function to unify Sharia to some extent through providing accessible resources). My understanding is that it is not the fine details that are the major issue here, but the actual deciding lines on issues like is a divorce allowable – the interpretation of the law at a functional rather than technical level.

      • Qays says:

        You can absolutely say “the sharia.” The sharia has been many things, but “specific and local” definitely wasn’t one of them until the modern era. If you go back a few hundred years you’ll see that jurists from one Muslim country would frequently emigrate to take up legal positions in other Muslim countries, which they couldn’t do if the law were “specific and local.” Our own legal system is in fact far more specific and local than the premodern sharia (e.g.: a lawyer who passes the bar in one state can’t practice in another without passing the bar there too, and forget about practicing in another country without jumping through hoops).

        There isn’t any single book that constitutes the corpus of the sharia, but that doesn’t mean the sharia doesn’t have a corpus: it’s just a corpus that spans many thousands of books and unwritten customs spread all over time and space (just as with, say, the common law). And more so than a corpus, the sharia is an interpretive framework in no way bound to any specific locality.

        • Watchman says:

          You could try and define a large corpus of works and opinions as the sharia should you wish, but it seems tricky, since any interpretation under sharia is using a selection from that corpus, and the framework used itself is one of those things selected. The fact teachers moved about is not evidence against this – fixed laws tend to limit mobility, whereas flexibility allows for people to move more easily and establish themselves elsewhere due to the fact there is a market for ideas and interpretations.

          Islam is not anarchic, and there are plenty of things that are agreed (or were until modern schools started appearing) under all interpretations of sharia, but I feel the direct article is only applicable to the entire corpus and not to any practical application of this.

          • Qays says:

            Any interpretation under any legal system is using a selection from the corpus of precedents that constitute the legal system, isn’t it? And the framework used varies quite significantly in, say, American constitutional jurisprudence as well.

            I’m not talking about teachers moving around, I’m talking about judges moving around and taking up posts in other countries. They could not do that if the law they were expected to enforce were “specific and local,” since they wouldn’t know how to enforce it in the new locality. The notion that legal enforcement in the medieval sharia was particularly “flexible” compared to other legal systems is unsubstantiated: the vast majority of cases were decided according to simple application of the prevailing opinion of the relevant school (taqlid).

          • I’m talking about judges moving around and taking up posts in other countries.

            For one notable example, a North African legal scholar appointed as the chief Maliki qadi of Delhi.

  6. Sniffnoy says:

    As always though with regards to the community stuff, we have the objection — OK, fine, maybe that’s great for the communities, but what about the actual individuals within the communities, the actual people we actually care about? Which is to say, a key part of the whole Archipelago idea is exit rights. And obviously the Amish case is based around limited exit rights! But if you’ve been raised Roma or Amish from birth, to what extent can you really be said to have exit rights? As described, it would appear that their whole system only works because people aren’t really willing to leave. And I mean then you consider all the people born into the community who unjustly have their freedom curtailed by its rules — “You’re an element of the community, this is your assigned role, no you don’t get to just do what you want” — but also can’t practically leave, or can’t really grasp the idea of leaving? I’m not sure this proto-Archipelago goes where you want it to. Seasteading, sure, but social justice? A big way they recruit and retain members is by convincing you that everything outside is intolerable. Not my idea of a positive example.

    (Anyway “Legal Systems Very Different From Ours” is quite an interesting book, if sometimes repetitive, and having also read it I definitely also recommend it. 🙂 )

    • 天可汗 says:

      To what extent can you really be said to have exit rights?

      • Sniffnoy says:

        Good point! I suppose I am doing exactly what Robin Hanson would warn against — comparing against perfection rather than current institutions. So indeed such a quasi-Archipelago might well be an improvement. I do still want to point out that gap, though, between such a quasi-Archipelago and a full Archipelago with some way to ensure exit rights.

        • Sniffnoy says:

          Although I guess my need for exit rights is somewhat reduced compared to such situations given that we have stronger individual rights here in the first place than a lot of these communities.

          • albatross11 says:

            What if the thing you want exit from is a community in which some of those individual rights are making things worse?

            For example, modern US society makes alcohol readily available for adults, and not too hard for kids to get. Maybe you would be happier living in a community where it was really hard to get. (I think some American Indian reservations are dry, in response to the genetic predisposition to alcoholism of some tribes.)

            Or maybe your most basic beliefs include the idea that homosexuality is morally wrong, and you’d like to live in a community where that belief is at least enforced with social ostracism, and perhaps with expulsion from the community.

            It’s not always guaranteed that everyone wants more individual rights. How would you feel about living in a society where it was considered a moral imperative to allow anyone over the age of 12 complete sexual freedom, and 12-year-olds sleeping with adults was just part of that freedom? That’s adding some individual rights, but if you have kids, you might well prefer a society with more restrictive rules w.r.t. sex between 12 year olds and adults.

          • 天可汗 says:

            On the contrary, stronger individual rights can increase your need for… not quite exit, because you’re still in the place that has the stronger individual rights, but at least entry into a stricter-than-default set of norms.

            Take atomization as an example. A lot of people these days don’t have much of a social life. There are people I see only at work whose social life looks a lot like mine: they’re in a relationship, but other than that, the few friends they have are far away and almost all their social interaction goes through the internet. This is obviously bad, but what are we going to do? Go to church? (They have an easier time of that than I do — this is Catholic country, so they are, but I’m not, which adds so much burden of choice that I just don’t bother. And the last few times I went to church I was the only person between 10 and 50 years old, so…)

            If we were all expected to go to church on Sundays, or if we lived in ancient Sparta and had to eat communally or whatever, that’d be a significant blow to individual freedom, but there are obvious benefits that would come from it that we don’t have.

            Similarly, I’d be perfectly happy to live in a society where television (including Netflix and so on) and video games were banned. There’d be more things to do, at least. There isn’t much here that I know of, and I live in one of the biggest cities in America.

            (Of course, that in itself wouldn’t solve the problem of there not being much to do. I suspect that almost everything that does happen makes a point of not making its presence known, as a direct response to high cultural diversity.)

          • Matt M says:

            This is obviously bad

            Citation needed.

            There’d be more things to do, at least.

            I don’t really see how this follows either.

      • poignardazur says:

        Speaking as a French citizen: pretty good, thanks!

        There’s no law forbidding me to ever come back if I ever emigrate. I can keep all my money without even changing bank accounts. I do need to make a formal demand to another country, which is never a trivial process, but I don’t think there are many barriers from immigrations between rich EU states.

        I can even go to Belgium or Luxembourg and not have to learn another language.

        (I heard people immigrating from France to start a company was a thing ~10 years ago; I don’t think it’s changed; our laws are still a mess)

        • gbdub says:

          On the other hand, your “easy exit” is only to other very similar states, indeed states that exist in an explicit legal coalition where they’ve agreed to certain commonalities and cooperation. You won’t be able to escape French legal trouble by hopping the border into Belgium.

          So I’d say your right to exit is more like the Amish person who switches congregations rather than the Amish who leaves entirely to go be “English”.

          Furthermore, as you see with Brexit, even if you and a whole “congregation” want to leave together, the remaining coalition will (at least threaten to) make this maximally unpleasant for you.

          • MugaSofer says:

            French citizens are also quite free to convert their money to gold bullion and move to Somalia if they feel an abiding desire to live under a decentralised anarcho-capitalist legal system. No government will stop them from doing so.

            They just generally don’t.

      • To the extent you have entry rights somewhere else?

    • Bugmaster says:

      I’m neither an Amish nor a Gypsy, but from what I can tell, their exit rights are largely illusory. Leaving the Amish community is not like moving from Michigan to California; it’s more like moving from Michigan to Asgard (*). No one speaks your language (at least, nowhere near fluently). You have no idea how anything works; in some cases, you don’t even possess the mental constructs or biomechanical organs necessary to use the most basic facilities. It is extremely easy to cause grievous offence, commit a crime, or even die outright by making some small mistake; it is incredibly difficult to do anything productive because all of your skills are millennia out of date.

      This doesn’t mean that moving to Asgard is impossible; a few brave, resourceful, and/or lucky souls could manage it once a decade or so. But it does put the exit option out of reach of most people.

      (*) The comic book one, not the mythological one, although that too might apply.

      • Mai La Dreapta says:

        In the case of the Amish, things are made much more easy by the existence of non-Amish Mennonite communities, which are culturally very similar to the Amish, but slightly more forgiving. In fact there’s a whole spectrum of Mennonite communities ranging from the Amish at the most isolationist to other groups which are basically just slightly-conservative Protestants, and Amish who are forced out of their communities typically don’t go straight to urban contemporary America, but to Mennonite communities which are culturally and geographically next door.

        • Bugmaster says:

          Good point.

        • Jiro says:

          Would an openly gay Amish reject be accepted by the Mennonites?

          • poignardazur says:

            They could always go to the Mennonites, stay in the closet for a while and gradually move on to more open communities.

          • annonite says:

            In 2017? The handling of homosexuality has been a source of considerable controversy for the past 20 years in the portion of the Mennonite community that Mai La Dreapta characterizes as “basically just slightly-conservative Protestants”. However, the very reason for the controversy is that many individual congregations in this orbit are accepting openly gay members, leading in turn to controversy about the membership of the congregation itself within various regional and national conferences (of churches). While perhaps all such congregations will be modernized, there remains significant cultural heritage and affinity such that they would likely prove a great source of help for such a person.

            Indeed, although this is probably not a forum where anything will come of the following, I have such an abundance of useful contacts for anyone in this situation that I would encourage such a person to contact me or be referred to me. However, my internet presence is crap, so instead please contact theunitofcaring, who will refer you to me.

          • Steve Sailer says:

            The Amish are Anabaptists so they don’t baptize children. Teens can leave.

            What the Amish really don’t like is adults who have chosen to go through adult baptism then breaking the rules.

          • annonite says:

            Steve Sailer,

            That is entirely true, but in the context of the discussion started by Bugmaster, it is worth explaining that Mennonite communities with cultural and geographic proximity make it less intimidating for teens not to join the Amish.

      • albatross11 says:

        Note the number of illegal immigrants to the US from very poor and backward bits of El Salvador[1], Guatemala, Honduras, Bolivia, etc. Tons of people come here despite the language barrier, huge difference in technology and society, and active defenses trying to keep them from coming or force them to leave. That suggests that the right of exit can be powerful and important *even when it’s expensive and hard to exit.*

        [1] I remember chatting with a Salvadoran cleaning lady in my old office who used English borrow words for things like vacuum cleaners, having never seen such a thing back home.

      • psmith says:

        it is incredibly difficult to do anything productive because all of your skills are millennia out of date.

        Not my impression at all. Quite a few Amish who stay Amish make good money by trading with the outside world, see for instance or for a more marginal but very cool example see here.

        • 天可汗 says:

          Right — having grown up near Amish country, this is very much a thing. My parents have an Amish toolshed.

          High-quality crafting is one of the traditional niches for insular Christian communities — see Shaker carpentry or Oneida Community silverware.

      • AnthonyC says:

        Others have pointed out specific ways in which Amish communities’ exit rights are not as illusory, because of the existence of a kinda Archipelagian spectrum of more and less strict (aka “low”) related communities, and because officially joining a community is something that you do as an adult, by choice.

        I would just add that the Amish seem to be very much aware of the choice involved. The Rumspringa tradition seems to be pretty much *about* exploring the available options so teens/young adults can make an informed choice about what community they want to be part of.

        From the book, and from a few other things I’ve read and watched,gypsy communities don’t seem to have such mechanisms for people to choose to exit the community, or to join it except by birth.

    • hlynkacg says:

      As always though with regards to the community stuff, we have the objection — OK, fine, maybe that’s great for the communities, but what about the actual individuals within the communities, the actual people we actually care about?

      The people we care about benefit from living in a strong/healthy community so we agree to take to actions that will strengthen the community even if it comes at a personal cost because we are not cold-blooded lizard people.

      • Sniffnoy says:

        And, what, you can’t have a strong, healthy community with strong individual rights? We just have to accept that people born into the wrong community have to live with “Well you’re a woman/Jew/Dalit/Cagot so this is what we say your role in life is”? I’d say people are hurt by that more than they’re hurt by the lack of that.

        This sort of thing is why I don’t put much stock in the idea of “rights of the community” — rights of the community always seems to mean the right of the community to trample over unpopular individuals.

        because we are not cold-blooded lizard people.

        Seriously? Leave that sort of sniping out, would you? It adds nothing; I could just as well say “we let people do what they want even if it weakens the structure of the community because we are not cold-blooded lizard people”. It’s not an argument for any side.

        • Bugmaster says:

          I kind of agree with you, but I think your position is too absolutist. Community requires each individual to surrender some rights, by definition. For example, you might surrender your right to murder people you don’t like, even if they really really deserve it; in exchange, you get to live in a place where arbitrary murders are somewhat rare. To use a softer example, you may be compelled to surrender some of the fruits of your labor, in exchange for roads and bridges. The question is, how many individual rights are you willing to surrender, and is the tradeoff worth it ?

          • Sniffnoy says:

            I don’t think we’re in such disagreement. I’m certainly not advocating for the right to murder anyone; even the most individual-rights-obsessed deontological libertarian can tell you what’s wrong with that. Nor am I objecting to taxation — especially given how government is often needed to protect individual rights. But I have to admit I didn’t really make myself pretty clear.

            Rather I’m objecting to things like: communities that hand out preassigned roles based on your birth; communities that run based primarily on authoritarian/traditionalist/conformist intuitions and the resulting “monkey politics”, so that being unpopular means you can be victimized with impunity, and being popular means you can get away with anything; that don’t tolerate weirdos (not even if they’re useful!) or anything associated with them; that don’t examine their own rules but take tradition as dogma, that reject any attempt at improvement as inherently wrong and unnatural; etc.

            I realize that probably sounds like some kind of strawman, and when stated in such an extreme form perhaps it is, but, these communities exist (at least in less extreme form), and often a larger government has to step in and stand up for the rights of the people in these communities! I hope that makes clearer why I’m worried about exit rights!

            I realize I’m not saying anything that’s not basic liberalism, but these days basic liberalism seems to be worth repeating…

          • Bugmaster says:

            @Sniffnoy:
            I agree with some of your examples, and disagree with some of the others (depending on severity); but the more important question is, how do you decide where to draw the line ? For example, how do you determine that taxation is ok; handing out preassigned roles based on birth is not ok; and some other example in between would only score at 68% ok… and so on ?

            I understand and support the case for “basic liberalism”, but IMO it’s kind of arbitrary. You and I believe that e.g. caste systems are totalitarian and stifling; meanwhile, people living in such systems might believe that the alternative leads to total chaos and moral deprivation. They probably don’t even see castes as a tradeoff; or if they do, they see it as an easy, no-brainer deal. I am not convinced that there’s a better argument against such a position other than “that’s not how we do things”.

          • meltedcheesefondue says:

            > I am not convinced that there’s a better argument against such a position other than “that’s not how we do things”.

            Differentiate between what people really want, and their beliefs about whether the system delivers it for them. People in cast-based societies probably value different things from us, but we can still compare their desires with what the system gives them. And our desires with what our system gives us. And then try and optimise the system(s).

            (there’s a wrinkle in that people often value social stability, so there’s a great status quo bias; still, it seems we should be able to say things like “there is a society X, that would give these people in cast-based societies a life more in tune with their preferences, if they could painlessly transition to it”. And whether that statement is true or not seems an empirical question).

          • Bugmaster says:

            @meltedcheesefondue:
            I am not convinced that it’s possible to distinguish “what people really want” from “things they expect the system to deliver for them”; at least, not without regressing into some vague axioms such as “seek pleasure, avoid pain”. You say:

            it seems we should be able to say things like “there is a society X, that would give these people in caste-based societies a life more in tune with their preferences, if they could painlessly transition to it”.

            I disagree with, or at least doubt, everything in that sentence. Sure, you can invent whatever society you like, but what people really want is for the castes to stay the same as they have always been, so as to bring order to a chaotic world. Or to enforce Judeo-Christian moral values so as to bring order to a chaotic world. Or to foster Englihtenment values so as… well, you get the idea. Society shapes people’s expectations and desires; the two are not orthogonal. For this reason (among others), I don’t believe that a painless transition from one society, to a totally different society, is even possible — barring things like mass brainwashing, I suppose.

        • Conrad Honcho says:

          Civilization is finding the balance between community standards and individual liberties. Yes, a community that stifles individual rights is stifling, but a group of individuals with no respect for community standards is not a community. Civilization exists in the boundary between chaos and order.

        • Deiseach says:

          I would say nobody gets to do exactly what they want in the way they want to do it all the time; you can have a rugged individualist who eventually burns through all the good will and runs out of new people who don’t know them/know about them, so they end up on their own because they are intolerable for others to try and live with. From the individualist’s side, this may seem like persecution and imposing community values over individual rights, but from the side of the people who have to deal with an asshole, well – you see what I mean?

          So even if you end up with a community of “everyone has the right to do absolutely what they want”, there will be some restrictions or restraints on absolute liberty, be that “no, you can’t fuck fourteen year olds” or “no, cannibalism isn’t legal here, even if the person agreed you could eat them after death”.

        • hlynkacg says:

          And, what, you can’t have a strong, healthy community with strong individual rights?

          If you start from the position that any curtailment of individual freedom is automatically unjust, the answer is “no, you cant”.

          As Deiseach notes above; The rest of the community, who you refer to as if they aren’t actual people who we don’t actually care about, are under no obligation to tolerate someone who does not respect the community or its norms.

    • SamChevre says:

      I’m going to comment below at more length on the Amish-Mennonite legal system, but in brief, the laws only apply to people who have, as adults, chosen to join a community. You can grow up Amish, never choose to join the community, and leave with no legal consequences.

    • albatross11 says:

      Clearly there are costs to leaving the community you were raised in, whether that’s Manhattan or a FLDS enclave in the mountains somewhere. However, even the right to an expensive/unpleasant exit is worthwhile, since it lets you escape really horrible situations. And what situation is horrible depends on your personality and preferences–it’s quite possible for a community/enclave to seem like heaven to one person and hell to another. Alice marries an important church elder at 15 and has a really good marriage, becomes extremely close to her sister wives, and can’t imagine wanting to leave. Betty marries an important church elder at 15 and hates him and her married life, can’t stand her sister wives, and wants to GTFO right now.

      A right to exit, even an expensive one, gives Betty the ability to leave, and makes the world a better place.

    • gbdub says:

      The thing is, any community worth being called that is going to have exit costs, and the better the community, the higher the exit costs. If there is no cost to leave, that implies there are no advantages to being in the community, so it’s not going to be much of a community to begin with.

      Now there can clearly be, for lack of a better term, “artificial” barriers to exit. Cultural norms / taboos that don’t directly benefit or even harm individual community members, whose only purpose is to isolate the community (thereby strengthening it). The Romani idea of pollution seems to be one of these. These artificial barriers would, I wager, be more likely to be harmful to individuals.

      On the other hand their are “natural” costs to exit that arise inevitably from the community policies that directly help community members. For example if you’re in one of those business coalitions with mutual support / legal enforcement / insurance / welfare, you’re likely to do business mostly with other members of your coalition who have precommitted to your same standards. Leaving the community will therefore cost you not only your insurance but most of your client list too. Yeah, this cost would suck for an individual who wants to leave, but you can’t eliminate the cost without losing much of what made the community attractive in the first place!

    • iamnoah says:

      Being in a community is going to necessitate some curtailment of freedom.

      There are absolutely costs to changing communities. I could be in a near ideal community, but know that there is a nearly identical one next door that I could join tomorrow that also has tacos on Tuesday. I’m not going to do it (unless I really like tacos) because the human costs of switching can’t be mitigated by any formulation of the archipelago.

    • Matt M says:

      I think the key point here is that the legal mechanisms themselves should be designed to minimize exit costs, regardless of the various other cultural or personal variables that may influence one’s decision to exit or not.

      I’m reminded of the classic argument faced by libertarians: “If you hate the state so much, why don’t you just leave!”

      Aside from issues like “But I was born and raised here and my friends and family live here and it would be very emotionally traumatizing for me to leave all of that just because I’d prefer to drink raw milk and not get thrown in prison for it”, the counter-argument also includes a more legalistic component, something like: “I can’t just leave. In order to truly be free of the US tax code, I have to renounce my citizenship, which is a long and burdensome process complete with taxes on any and all property I wish to retain for myself, and restrictions on my future ability to return.”

      I think we need to distinguish between the Amish system of “You can leave if you want but good luck finding a job and making friends among the English” and the East German/Movementarian system of “Anyone is free to leave so long as they are able to summit the barbed wire wall and tiptoe through the minefield without exploding.”

  7. Colin Reid says:

    I wonder if a plausible alternative equilibrium state for the USA is that it becomes a kind of giant penal colony where a large proportion of the entire country’s population ends up as ‘felons’ with curtailed rights; of course, most of the felons are not actually locked up, as it would be unaffordable, but rather are granted the ‘opportunity’ to avoid prison by working various unpleasant jobs for low pay. Basically, the economy becomes based to a significant extent on convict labour. The legal system declares lots of fairly innocuous activities to be crimes with long sentences, so it’s very difficult for children of felons to stay within the letter of the law and most become felons themselves. The way the remaining ‘law-abiding citizen’ elite manages to preserve its status is through selective prosecution, plea bargains and so on, enabled by social connections. It helps that a significant proportion of the elite are employed as police, judges, lawyers and so on, and the rest probably have cops/judges/lawyers amongst their close relatives.

    As far as I can tell, such a situation is compatible with the US Constitution and could evolve organically without any sort of revolution. Even slavery is still constitutionally permitted as of 2017, provided that the slaves are lawfully convicted of a crime and in the process of serving out their sentence (which could be ‘1000 years’ or ‘multiple consecutive life terms’, or whatever other absurdities the US legal system comes up with). Some US states already seem to be experimenting with creating a large underclass of ‘ex-convicts’ with reduced civil rights (inability to vote, for example); they just haven’t figured out how to do it in an economically sustainable way yet.

    • JulieK says:

      Two objections:

      Basically, the economy becomes based to a significant extent on convict labour.

      Our economy does not need a huge pool of unskilled laborers. Your system might involve these people being given some sort of make-work jobs, but it wouldn’t really be so important to the economy.

      rather are granted the ‘opportunity’ to avoid prison by working various unpleasant jobs for low pay.

      What happens when they don’t comply- they are put in prison? A significant percentage of people violate the terms of their parole; showing up every day to an unpleasant job is presumably more onerous than your typical parole conditions, thus the percentage of violations will be even higher.

      • Watchman says:

        I think both complaints are addressable.

        Cheap labour is relatively unskilled labour, not absolutely, so the sort of labour might change (as the nature of labour changes) but the work’s relative status and probably tedium would remain low and high respectively.

        And the US can allow for extreme punishments – your constitutional rights are defended by a subset of the judicial elite that Colin suggests remember, and their interpretations change to suit social demands (hence the liberalisation of the twentieth century). If this scenario came about we could expect the Supreme Court to interpret the constitution in a way to allow the use of punishment to support the system, not to be a barrier to the development of the system on a long-term scale.

      • AnthonyC says:

        Slave labor doesn’t have to be chattel slavery. It could be classical “make money as you wish, and pay a portion back to one enslaving you” slavery. Which could end up looking like, essentially, much higher tax rates for the convicted underclass, combined with loss of voting rights (less ability to reform the system, or protest, etc.). In that scenario, slave labor isn’t limited to unskilled labor.

        A scary, and not so implausible, possibility.

        • Michael Watts says:

          Slave labor doesn’t have to be chattel slavery. It could be classical “make money as you wish, and pay a portion back to one enslaving you” slavery.

          it feels like it’s worth pointing out here that a tax on the income from a slave’s entrepreneurial skilled labor was a common system of slavery in the American South. There’s no need to distinguish “classical slavery” from “chattel slavery” here, and no obvious analytical benefit.

      • Mary says:

        A significant percentage of people violate the terms of their parole

        That’s partly because you can usually do that without consequence. (Which is not a good way of running it. See:
        http://www.governing.com/topics/public-justice-safety/Swift-and-Certain-Hawaiis.html
        )

    • Matt M says:

      Bob Murphy sketches out a very interesting view of how private prisons might function in an AnCap society in this lecture.

      The TLDR version is that they’d basically be hotels/labor camps for shunned people.

      • AlphaGamma says:

        Reminds me of the prison-equivalents in Ursula Le Guin’s The Dispossessed which is an interesting depiction of an anarchist society with absolutely no concept of personal, let alone private, property. They are officially “hospitals” that people can check into, but some offenders end up with the choice of checking into “therapy” or being beaten or killed by their neighbours.

      • Jiro says:

        What happens if you’re white, you marry a black person, and you get shunned for that?

        • Matt M says:

          The sort answer is that it’s very unlikely everyone would shun you for something such as that. These sorts of prisons would really only be needed for people who committed “crimes” so universally despised that no one would be willing to live among them, sell them food, etc.

          I’m always interested that criticisms of AnCap often entertain both of the following objections:

          1. Under AnCap, rich people could murder the poor at will and their only punishment would be shunning, which isn’t much of a punishment if you’re already wealthy. AnCap wouldn’t provide nearly enough punishment for major crimes!

          2. Under AnCap, people would get shunned and starve to death for minor disagreements on social arrangements. AnCap would result in excessive penalties for minor deviations!

          • Protagoras says:

            Why is that interesting? There’s no contradiction between the two objections; they’re both variations of a worry that AnCap carries a danger of basing the severity of punishment on the characteristics of the person to be punished rather than the severity of the crime.

        • Paul Zrimsek says:

          The other short answer is a question: If everyone’s in favor of shunning whites who marry blacks, who’s supposed to be voting for the law that makes it illegal to shun whites who marry blacks?

    • Nabil ad Dajjal says:

      This is a pretty common sentiment, that the prison system is a modern day version of plantation slavery. I hear this sort of thing constantly.

      The problem is that planters actually made money on their slaves. It wasn’t as much money as they could have made owning factories but it was bringing in revenue.

      Convict labor loses money. Ex-convicts typically don’t work, and when they do work they’re still going to be in the bottom 40% of earners who pay a negative amount of income tax. So where is the money coming from exactly?

      The reality is that the kind of guy who winds up behind bars was never going to make anyone any money and is currently a huge drain on society. Keeping him locked up, or limiting his options when he gets out, is about mitigating that loss. It’s not a profit-making enterprise.

  8. Jack Lecter says:

    One little-admitted but much-worried-about justification for mass incarceration in our society is the concern that some people are just so naturally violent that, left in the outside world, they would offend again and again until they died.

    My dad’s a forensic psychologist- his job involves talking to prisoners up for parole and trying to assess the odds that they’ll commit violent crime if his bosses let them out. He’s been doing if for a long time, and, from the numbers, he’s very good at his job. I think he’d agree with this- there are some people we currently can’t fix who need to be contained.

    I’m not sure how small a percentage of the population this might be, though. It’s important to remember the Chinese Cardiologist factor. And we certainly lock people up for things that have little to do with violence- ending the drug war would be pretty big.

    • Conrad Honcho says:

      And we certainly lock people up for things that have little to do with violence- ending the drug war would be pretty big.

      Crime rates have been falling dramatically as we lock up “non-violent” drug offenders. While yes, the crime for which the drug offender was locked up may not have involved violence, but that doesn’t mean the person themselves was otherwise a saint.

      I’m curious as to how much more serious crime (robbery, rape, murder, etc) has been prevented by removing people from society for drug offenses. If we let everyone in jail for non-violent drug offenses free, and legalized/decriminalized most drugs, what would happen to non-drug-related crime rates?

      • AnthonyC says:

        I think this is where cross-country analyses come into play. The US greatly increase incarceration rates, compared to other developed nations, but our crime rates haven’t gone down dramatically more than in other counties, which would limit ho much of the effect you could potentially attribute to that cause. Lots of things other than incarceration have changed over time that can effect crime rates – as Scott has written about before, banning leaded gas was a major one.

        • sourcreamus says:

          It depends on which country you compare the US has had murders go down by 50% since 1991, Canada had their rate go down 37% in the same period, and Mexico had their rate go down by 10%. Brazil’s rate has gone up by 65% in that same time.

      • Winter Shaker says:

        While yes, the crime for which the drug offender was locked up may not have involved violence, but that doesn’t mean the person themselves was otherwise a saint

        Well, firstly, as AnthonyC says, that doesn’t prove a causal relation between increased incarceration of non-violent drug offenders and reduced rates of violent crime, but secondly, even if it does – assuming your theory is something like ‘people who are violent criminals are often also drug users/dealers as well, and often it is possible to prove a drug crime in court where it wouldn’t have been possible to prove a violent crime that we strongly suspect – you need to at least own that you’re willing to sacrifice a bunch of non-violent drug users / sellers to jail for an activity which, if you’re making that argument, you’ve kind of already conceded isn’t evil enough to actually deserve jail in and of itself.

        And if you’re going to have a de facto policy of ‘make some widespread activity a criminal offence just to use as an excuse to lock up people that we suspect of violent crimes, and rely on the police to carry out selective enforcement’, then you should really own that, and either just come out and say that you support a massive lowering of the standard of proof required to convict someone of a violent crime, or else support making some other, even more common behaviour a criminal offence so as to further facilitate selective reinforcement … say, wearing socks, or eating products that contain refined sugar.

        And that’s before we even begin with the question of how much extra violent crime is created by drug prohibition, from gangs in your city fighting over distribution rights, to the chaos created by the river of money flowing to organisations like the Mexican cartels or the Taliban.

      • albatross11 says:

        There are several ways this could work out:

        a. Drug dealers are generally career criminals involved in a lot of bad stuff, but the drug crimes are the easiest to prosecute, so you get a lot of people who were guilty of all kinds of stuff, the police had enough evidence to charge them, but it was easier all around to just get them to plead guilty to the drug charges.

        In this case, if we hadn’t locked them up for dealing drugs, we’d have locked them up for something else.

        b. Drug dealers are generally career criminals involved in a lot of bad stuff, and the police are pretty sure they’re involved in those crimes, but the drugs were the thing for which they could find enough evidence to prosecute/get a plea.

        In this case, if we hadn’t locked them up for drugs, they’d be on the street causing problems for everyone.

        c. Drug dealers were generally only dealing drugs, and otherwise weren’t particularly up to anything all that bad. The police got them for drug dealing.

        In this case, if we hadn’t locked them up for dealing drugs, they’d be on the street not really doing any harm.

        It’s not obvious to me what fraction of the people in prison for drug dealing fall into each of those three categories, but it seems like we’d need some intuition for that if we wanted to know whether locking up drug dealers is decreasing other crimes.

        • Aapje says:

          d. Drug dealers often commit crimes because they have no access to the legal system for disputes they have, because their business doesn’t get protection from criminals, etc. So if the police/legal system would treat drug dealers as other shop owners, a lot of the crime would disappear.

      • John Schilling says:

        As has been pointed out here before, complete with a pie chart, we aren’t locking up non-violent drug offenders, at least not with any great frequency. Drug offenders make up 18% of the US prison population, compared to the 40% who are doing time for actual violence and the 20% for stealing stuff.

        To the extent that locking people up is responsible for the drop in serious crime, it’s because we are locking up people we have proven are serious criminals like robbers, rapists, and murders, not because we are locking up the druggies that “everybody knows” are really robbers/rapists/murderers but we can’t be bothered to prove it.

        Flip side, for the OP, ending the drug war wouldn’t actually be that big except to the extent that the drug trade does involve actual violence (crude estimate) that is problematic for the bystanders and that we kind of have to lock people up for sometimes.

    • yossarian says:

      The naturally violent people can be easily distingushed by community. For example, google up Russian term “Gopnik”. In general, they are a small, but noticeable percentage of the population – and it is strange that the laws don’t permit outright killing them.

      • CatCube says:

        I actually agree that there are people who need killing, but the problem is that people can be notoriously flexible on what makes somebody need killing when they’re allowed to do it. It tends to start with actually bad people, then shade towards people they don’t like very much.

        Kind of like antifa–I actually don’t have much of a problem with punching Nazis, but the problem with those clowns is that they don’t seem to be very discriminating about who the Nazis tend to be. It turns out their definition of Nazi is less informed by the history or ideology of the Nazi movement and is more like “anybody who is further to the right than I care for, and I don’t much care for anybody to my right.” Since I don’t want to live in a society where we run around freelancing violence on people we don’t like, that means that punching Nazis is prohibited as a side effect.

        • yossarian says:

          That is exactly the trouble – people are way too willing to punch “Nazis”, “commies” and so on, but once you start talking about the actual freaking criminals – everyone goes humanitarian. Note that the actual Nazis and Soviets punished the thieves and murderers less severely than heretics.

        • Mary says:

          They have VERY precise rules about who are Nazis:

          Anyone they want to punch.

        • yossarian says:

          On the punishment of the criminals in particular – lately, I was reading a book about the crime in the Soviet Union – all kinds of things about the “bratva”, the “vor v zakone” and so on. After reading this book I was wondering – come on, dudes, why don’t you just shoot them? I mean, those people (the career criminals) often willingly decorated themselves with various tatoos showing their position in the criminal world, it wouldn’t be hard to discern them from the general public. Reading about how they’d get a 5-year sentence in jail for their shennanagins and then go free was like reading yet another Batman novel where Batman captures Joker once again… just to put him in jail where Joker will simply continue carrying on his plans for World Domination and Proliferation of Chaos (or simply escape). It just makes you want to cry “Just freaking kill him! For once, it’s ok if you do it, it’s not like you’d be killing someone who just told a joke about the current General Secretary”.

  9. drethelin says:

    I think one of the reasons that fines were extreme and they were mostly concerned about really rare crimes is that they were aimed at controlling the actions of kings and other powerful figures. I think back in the day a lot of things relied on the ability of individuals to deliver a beating or kill someone freelance without recourse to whatever judicial system existed.

    There’s also the difference population density. Much like sewer and political systems, the technology needed to handle what humans do by the hundreds of thousands or millions is on a fundamentally different level than that needed by a few dozen or a few hundred or even a few thousand if most of them live miles apart from each other.

    • Deiseach says:

      I’m just going to lump in The Book of the Couple here, which is a treatise which is an amalgam of 8th-13th century Irish contract law on partnerships (“couples” weren’t simply marital couples). Fines are a very large part of punishment, and there’s a complex system in place to administer, judge, and carry out decisions and judgements (the hereditary class of jurists known as the brehons, possibly an off-shoot of the bardic/poetic caste since both were organised on oral tradition and the recording of local customs, history, and traditions, and both were part of the retinue/administration of the local chieftain). But it’s not simply financial penalties which are seen as constraints on behaviour, there is the gain/loss of status involved with personal honour that acts (or is assumed should act) on regulating behaviour:

      Question. How many pairings are there in Irish law? Answer. Eight: a lord and his base clients, a church and its tenantry, a father and his daughter, a girl and her brother, a son and his mother, a foster-son and his foster-mother, a teacher and his pupil, a man and his wife.

      Equally exempt from legal suit for each is whatever one of them may have given the other, whatever one of them may have used as against the other, without violent crime, without stealth. Everything taken without permission, that is complained about, is repaid by simple replacement of the object until the matter goes as far as the legal remedy of fasting*, except in the case of the church. Repayment, by simple replacement, of what is taken without permission and complained about is all that is required until there is evasion of the legal obligations that arise from fasting, or legal default. Anything taken by stealth, by violent crime, anything taken without permission, that is complained about and ignored, is levied with its penalty fine.

      *Ritual fast (a kind of hunger-strike) is a means of bringing the defendant to submit the case to arbitration.

      (Hunger strikes have a long history in Ireland as a means of invoking social opprobrium on the enemy).

      From the obligations and rights of the second class of marital union (there are ten “couples of cohabitation and procreation” in Irish law of the time):

      Everybody is fed and hospitality is not refused up to the legal number of his/her retinue. Refusal of hospitality in the case of a guest accompanied by a excessive retinue does not damage one’s honour for, though one refuse, this is not deemed refusal of hospitality if the retinue is excessive.

      Crucially, this is all rank and status based, which means those at the very lowest level of society or who have lost their status often have little or no recourse in law.

    • AnthonyC says:

      “I think back in the day a lot of things relied on the ability of individuals to deliver a beating or kill someone freelance without recourse to whatever judicial system existed.”

      David Friedman’s chapter on imperial Chinese law deals with this extensively. A big part of the goal seems to be to get people to bother the imperial bureaucracy as little as possible, while still symbolically balancing the scales of justice (sorry, I con’t know a correct culturally relevant analogy) and keeping the peace.

  10. Anaxagoras says:

    Crime victims have little economic incentive to punish the perpetrator

    It seems really clear that there’s a lot of non-economic incentive going on — desire for revenge or justice are natural human drives, more so than standard economic ones. I guess this ties into your second thought in the last section: if the book is predicated entirely on looking at this through an economic lens, mightn’t it be missing the main explanation?

    • Scott Alexander says:

      Friedman mentions that natural-human-desire-for-vengeance is probably just evolution’s solution to this same problem.

      • James says:

        I doubt it; that seems suspiciously group selection-y.

        I think it’s more like a self-interested precommitment: to not get screwed over, you seem like the kind of person who would take revenge (even when it’s of no material benefit to you), and the easiest way to convincingly seem like the kind of person who would take revenge is just to be the kind of person who would take revenge.

        • hlynkacg says:

          I feel like you’re overthinking this.

          Humans are social animals. Punishing defectors is an adaptive trait in social animals. As a result, humans enjoy punishing defectors.

          • Mary says:

            Embrace the power of “and”!

            There are plenty of cases where people have taken hard lines just so as to not appear as weak.

      • albatross11 says:

        Yeah, the desire for revenge looks like an adaptation to get us to altruistic punishment.

      • Anaxagoras says:

        Vengeance is not just limited to humans in nature. I know of a few examples among birds — crows harassing people who are cruel to other crows, cowbirds destroying the nests of birds which eject their parasitic offspring.

        It’s not heinously impossible to look at these as economic transactions, especially the brood parasitism, but I don’t think that’s necessarily parsimonious. I don’t know the extent to which these animals have emotions, but if they do, it’s probably a similar sort of indignation to ours. It may be for the good of society as a whole that it be the case that “criminals are reliably punished and the innocent consistently safe”, but it’s not like we need an organized system to ensure that people try to punish people who wronged them. If anything, the point of the legal system seems to be limiting and formalizing that punishment.

      • Art Vandelay says:

        That famed economist – variation under natural selection.

    • Sniffnoy says:

      See Jack V’s comment about evolution below — there’s the question of why is this a good equilibrium, and there’s the question of how things actually reach that equilibrium.

      But yeah I guess we have to consider the fact that because things happen by certain mechanisms such as desire for revenge and justice, sometimes things are going to stick in an equilibrium that isn’t good. E.g. the use of torture in Europe for a long time which was just straight up worse than, you know, not using torture, but stuck around for a long time anyway.

    • poignardazur says:

      Yeah, the “How pissed off are people at the criminal” question is kind of missing in this analysis.

      I mean, if someone in my family got killed, I probably wouldn’t be fine with it once the murderer’s family promise to give me a lot of money to compensate.

      • So you kill the killer, and then your family gives the money back to them as wergeld.

        That’s essentially what is happening in the killing duel in Njalsaga, with the wives pushing the killing and their husbands, who are friends, passing the money back and forth. If I remember correctly, only the first victim is himself innocent–after that each killer is himself killed as the next round.

        The Icelandic system also had the option of lesser outlawry, either as a court verdict or part of an out of court settlement (which is how the vast majority of cases seem to have ended). That meant three years out of Iceland, after which the offender was free to return.

        One thing I got wrong in my old article on the system and corrected in the chapter in the book has to do with the relation between outlawry and wergeld. If you killed someone and the process went all the way through the court to a conviction you got outlawed even though you paid the wergeld. But almost all cases actually settled out of court, and the usual settlement terms for a killing were wergeld without outlawry.

        All of this has to be qualified by some uncertainty. There is a good deal of inconsistency between the (very late) written accounts of the legal rules we have and what happens in the sagas–including Sturlung sagas. I discuss this in the chapter.

      • Deiseach says:

        I mean, if someone in my family got killed, I probably wouldn’t be fine with it once the murderer’s family promise to give me a lot of money to compensate.

        You always have the option to refuse compensation, but the wider clan and society generally will push for acceptance to prevent the kind of “you killed my father, prepare to die” then you kill the killer, then the killer’s son kills you, so your son is blood-feud bound to kill him, and so on and on. If it’s a really bad murder, probably there will be sympathy over “I’m gonna get him”, but for a normal kind of “both parties were drunk, got into a stupid row, and one guy was knocked down and cracked his skull and died” affair, generally financial recompense to support the bereaved family will be more acceptable.

        • Matt M says:

          I mean, if someone in my family got killed, I probably wouldn’t be fine with it once the murderer’s family promise to give me a lot of money to compensate.

          I’d be more fine with this than with “they sit in jail forever or receive a lethal injection, the process of which costs hundreds of thousands of dollars that is paid by me (in the form of tax dollars) rather than paid to me”

          I’m not sure there’s any sort of justice system imaginable that would produce a result where one was “fine with” the eventual outcome of a close family member being murdered.

          • Ninmesara says:

            I’d be more fine with this than with “they sit in jail forever or receive a lethal injection, the process of which costs hundreds of thousands of dollars that is paid by me (in the form of tax dollars) rather than paid to me”

            In that case, at least the killer gets robbed of his freedom just like he robbed your son’s. Works for me.

          • Conrad Honcho says:

            You have to have some punishment more than payment, though. Otherwise the very wealthy can just murder people and pay the fine.

  11. Erl137 says:

    “The Icelandic courts could declare offenders outlaws who can be killed without repercussion – but the threat encourages Icelanders to pay the wergeld, and nobody has to get outlawed.”

    Nobody has to get outlawed; a shitload of dudes get murdered. I’m as big a fan of the Althing and its law as anyone, but Njals Saga* has a casualty rate that Game of Thrones would envy.

    It’s been a while since I’ve read the saga, so here are some choice quotes from the Wikipedia page:

    “Both husbands die by the axe of Hallgerður’s doting, brutish foster-father, Þjóstólfr . . . [it] is Hrútr who, despite the family ties, avenges the death by killing Þjóstólfr.”

    “Hallgerður charms a number of dubious characters into killing members of Njáll’s household and the spirited Bergþóra arranges vengeance. After each killing, their husbands make financial settlements according to the status of the victims. The fifth victim is Þórður, foster-father of Njáll’s sons.”

    Note: in this section of the saga, the weregild is paid after every death; the next sentence is always someone doing a murder anyway.

    “In the battle, fourteen attackers and Gunnar’s brother Hjörtur are killed.”

    Gunnar is eventually outlawed (despite being, as the saga WILL NOT SHUT UP ABOUT, just a swell fuckin dude), and then attacked in his home, and then killed at the relatively affordable price of two additional deaths and fourteen woundings. The feud escalates, and culminates in a 100 on 30 showdown, where Njal’s home is burnt, etc. etc.

    The overall effect is not of a balanced system of law, but of scorched-earth retaliation, the repeated collapse of fragile truces, and in general, peace that is only achieved long after the first several cohorts of combatants are entirely dead.

    It is of course quite possible the sagas exaggerate, or focus on those instances where the system failed most dramatically; “Hrun son of Hrun did no crimes, because boy he’d get in trouble” is not a good saga story. But if you rely on the sagas to paint a picture of the function of Medieval Icelandic law, you have to conclude: the system did not do a very good job ameliorating feuds, let alone averting them.

    *Also known as “The Story of Burnt Njal”, because of what ultimately happens to the eponymous character, three guesses as to what it is.

    • Erl137 says:

      To be a little more quantitative: the wiki estimates that Medieval Iceland had a population of about 50,000; at least 50 people are killed over the course of Njal’s Saga in the context of those feuds alone. The wiki gives the duration of the events of Njal’s Saga as “several decades”—which gives a homicide rate associated with just that feud of 3 to 5 per 100,000 per year (and this is a lowball).

      I’m not qualified to compare that society to its contemporaries. But it doesn’t seem like it’s got a vastly lower rate of crime than, e.g., contemporary America.

      • poignardazur says:

        That’s a weird comparison. I know nothing about that saga, but it only concerns a few families, right? Presumably there are other murders going on in the rest of Iceland during these decades, and the homicide rate could be much higher (or not).

        • albatross11 says:

          Next, let’s all go watch _The Untouchables_, and use that to compute the US murder rate during the 20s.

        • Doesntliketocomment says:

          I think that is the point he is making, that in such a small community even a single bloodfeud could produce a murder rate as high as what we experience in modern society, even in the absence of other murders.

      • marshwiggle says:

        If you’re using the sagas to ask questions about homicide rate, it seems like you’d need to use all of them, not just one that happens to get a lot of press because of it’s body count. I’ve only read perhaps a third of what is out there, but I think I’ve read enough to get a sense of what is typical. Even the sample of sagas involving a killing don’t usually end up with much of a body count.

        Also, many of them function as a discussion of how to avoid the process from spiraling out of control. Many of them warn against your female relatives nagging you to go for some revenge murder. Many of them have extended discussion of using legal or social maneuvering to handle a dispute even after there has been a killing (in ways that still let you be considered to have avenged the killing). Yes, Njal’s Saga isn’t the only one where a killing leads to more killings, but the sagas as a whole do tell a story of a system that (under the circumstances which generally held at the time they supposedly happened) for the most part worked.

    • Watchman says:

      Njal’s Saga is also notable for being the most extreme example of continuous violence recorded from Icelandic society, so it is an outlier (there are a fair number of Icelandic sagas) not a standard example. The story may have been notable for its exceptional level of violence, rather than being the equivalent of a newspaper report of a routine homicide (there’s a phrase that is painful to type…).

      It is also arguable that Njal’s Saga is showing the breakdown of the judicial system that David Friedman discusses, with repeated failures of legal intervention and wergild payment to stem the violence and the drawing into the feud more and more figures. This matches with (probably due to the fact it was read by every historian working on this period…) the normal narrative of twelfth-thirteenth century Icelandic history, where the declining number of chieftains (I guess the events of Njal’s Saga would have contributed to that) meant that political leaders were more powerful, and therefore more able to break existing social bonds, hence increased disregard of the legal system – if a leader was strong enough to be above the law, he was an attractive patron.

    • Conrad Honcho says:

      I haven’t read the saga, nor do I know much about medieval Iceland, but was the saga intended as (or used as) a cautionary tale? “Hey everybody don’t kill people or else your whole families are going to wind up murdering each other like Njal?”

    • Deiseach says:

      I wonder, though, if the sagas are the exceptional cases where it all broke down – as you say, there’s no fun in “and for thirty cases everyone behaved sensibly, except then that one time Ivar had to be a dickhead about things, and that’s the reason for why that village is in ruins that you asked me about”, the story that gets told and remembered and passed down is not The Thirty Sensible Guys but rather That One Time Ivar Had To Be A Dickhead.

      One of the Three Sorrows of Irish Storytelling, the Fate of the Children of Tuireann, is the neat way the son of the murder victim makes the collection of the erec (weregild) the means whereby the murderers end up dead, without him having to kill anyone himself. In a nutshell, the three sons of Tuireann and the three sons of Cainte were deadly enemies, and when the sons of Tuireann met Cian (one of the sons of Cainte) alone, it didn’t end well for him. Lugh, the son of Cian, noticed his father’s absence at the victory feast celebrating his victory over the Fomorians and seeing the sons of Tuireann put two and two together; they didn’t admit anything but agreed to pay the restitution. Lugh asked them for seven items which, on the face of it, seemed easy enough but then he dropped the other shoe: these were all famous treasures and heavily guarded, and as they realised, if one quest didn’t kill them, another one would. They barely made it back home alive, having managed to complete the last quest, but fatally wounded. Lugh refused to let them use one of the magic treasures to heal themselves and they died, and so he had his vengeance without technically breaking any rules.

  12. Steve Sailer says:

    “One little-admitted but much-worried-about justification for mass incarceration in our society is the concern that some people are just so naturally violent that, left in the outside world, they would offend again and again until they died.”

    Scott asks: What happened to career criminals and basically defective anti-social pests? Old time legal systems seem to exist to adjudicate difficult cases in which both sides had some support.

    Here’s an anecdote: NFL star Marvin Harrison, long Peyton Manning’s favorite receiver, retired and opened a bar in the slum where he grew up. A local career criminal who’d been a plague in the neighborhood for a long time started causing trouble for the new investor.

    After awhile, the bad guy was dead. Most of the citizenry and the police didn’t seem to be in any hurry whatsoever to arrest anybody. But they also didn’t act like it was a mystery who did it.

    Eventually, Harrison was elected to the NFL Hall of Fame in 2016.

    http://www.philly.com/philly/sports/eagles/20150130_Marvin_Harrison_a_Hall_finalist__slaying_victim_s_kin_still_seek_answers.html

    So maybe that might give us a clue about what happened to bad guy pests: a local hero would come back from the wars and after awhile the bad guy pest was dead. And few felt this was the kind of thing that needed to be adjudicated.

    Of course, in this case, like so many others, the neighborhood pest has surviving family members who are sore about his death.

    • albatross11 says:

      Cause of death: Needed killing.

      • Doctor Mist says:

        Cause of death: Needed killing.

        Wow, is that from somewhere? Or is its pithiness just making it seem instantly familiar? Google doesn’t recognize it.

        • Meister says:

          Are you thinking of Robert Clay Allison’s tombstone?

        • AnonYEmous says:

          not sure if it was the originator, but “The Golden Globe” ?

        • cassander says:

          there is an old joke about a young east coast lawyer who goes to clerk for a texas judge. At the time, there were two capital offenses in texas, murder and horse thieving. After a while, the man notices that the judge frequently commuted the sentences of murderers, but never horse thieves. He asks the judge about this and the judge says “Boy, some men need killing, but I ain’t never seen a horse that needed stealin’.”

          • sourcreamus says:

            A similar joke is one where the verdict on a horse thief is “Not guilty, but you have to give back the horse”

          • Jiro says:

            I was under the impression that being a horse thief was a capital offense because having your horse stolen could lead to you starving in the desert or otherwise endangering your life. They didn’t just make horse thievery punishable by death because they randomly decided on it.

          • AlphaGamma says:

            @ sourcreamus: As well as Guilty and Not Guilty, the Scottish legal system has a third verdict of Not Proven, sometimes jokingly referred to as “not guilty and don’t do it again”

        • albatross11 says:

          It’s an old joke–the judge finds you not guilty of murder because the guy you killed needed killing. (Related: the guy who gets shot dead in the middle of town in broad daylight, but nobody saw anything.)

          • Doctor Mist says:

            I certainly recognize the basic idea (and of course I have my own little list just for form’s sake). But it was casting it as if it were the death certificate or coroner’s report that was striking to me.

    • Nornagest says:

      Huh, it’s like bizarro Rubin Carter.

  13. Le Maistre Chat says:

    It came to pass that Pelops came from Asia, and renamed Apia the Peloponnese after himself. Two of his sons, Atreus and Thyestes, slew their brother in a feud and were exiled to Mycenae. The king appointed them joint stewards while he was away at war with the sons of Heracles, and upon his death they feuded over who would be king. Atreus brought pollution upon his side of the family by sacrificing the sons of Thyestes and serving their cooked flesh to their father. Yet Atreus did become king of Mycenae. He was succeeded by his son Agamemnon, while his son Menelaus became king of Sparta by marrying the princess Helen. When she was carried off to Troy, Agamemnon sacrificed his daughter Iphigenia to Artemis to obtain a favorable wind for the fleet. After nine years of war, his wife greeted his homecoming with an assassin’s dagger. Their son Orestes slew his mother for slaying his father. Now the House was so wicked that the Furies attempted to punish Orestes, and were only stopped when Lady Athena created the court system as an alternative to revenge killing.
    We stage this story in her city to remind everyone what would happen if someone chose not to obey the court.

  14. dannyobrien says:

    Here’s some criticism of David’s portrayal of medieval Iceland. Not super-detailed, but I imagine that it represents a mainstream view of problems of the period.

    (While I’m poking David to respond to critiques, I’ve always been curious whether he has a stock answer to Nick Szabo’s criticism of the core point of Machinery of Freedom — that you can derive economically just governance purely from contract law.)

  15. Jack V says:

    Re: “this just happened” vs “this serves this need”, I can’t help thinking of biological evolution, where things definitely “just happen”, but they do end up in local optima. If you’re looking at an animal, you can often see what it gains from being like that. But sometimes what it gains isn’t great.

    Huh. I generally find fictional legal systems quite questionable, but those historical examples make me think again, I’m not good at guessing what’s plausible.

    I’m not sure how I’d want things to work. My guess is, in Amish type communities, it’s common for there to be “missing stair” type problems people who are always jerks to the extent they can get away with it, when there’s not sufficient consensus to punish them for a particular crime. But that if everyone is in a community together, there’s much much less street crime etc. Many of the problems in our national societies are those that between or outside communities.

  16. Nancy Lebovitz says:

    I wonder whether most Americans could be considered to be living in partial anarchy because they live under a legal system they can’t afford to use. The government and businesses get away with a lot for a long time.

    “Metis” might be a partial answer to a question which has been on my mind. Robin Hansen has written about many customs and institutions which don’t achieve their nominal purposes very well, but do work as status signalling. On the other hand, somehow people manage to live– it’s as though there’s a balance between signalling and useful behavior which is not very consciously mediated.

    As far as I can tell, doing really destructive things as signalling gets limited by “common sense”, and the usual joke is that common sense is very rare. However, a better interpretation might be that common sense is common with the meaning of being shared. And it’s more like senses (it at least feels as though it’s perceived directly) rather than thoughts.

    A possible problem with Friedman’s style of explanation might be that it settles on plausible explanations, which is not the same thing as proving that a particular explanation is true.

  17. Baeraad says:

    Very interesting. And in some ways, comforting. It’s easy to assume that the idea of real justice (as opposed to, “the big guy in armour chops the head off of anyone who annoys him and calls it justice”) and social safety nets and other nice things are new-fangled notions that didn’t exist even as a concept before the twentieth century, and that before then it was all might-makes-right and devil-take-the-hindmost, all the time. It does restore some of my flagging faith in human nature to be reminded that people throughout the ages have started with the same concerns that we have (people would like to not get killed, robbed or otherwise brutalised. People would like to not get executed. People would like to not have to go to war… well, okay, professional warriors kind of do, which is why it’s not so great when those are in charge, but regular people would much rather stay home and mind their own business if at all possible) and come up with semi-functional solutions. And if their solutions weren’t perfect, well, ours don’t work a lot of the time either.

    The backside of that is of course that after ten thousand years of human civilisation, we’re still at the stage of “pay money to not get killed,” but I’ll try to concentrate on the positive. I feel like I need that this week. :p

    Social justice communities have sexual harassment policies much stronger than those of the country at large, and enforce them by ostracism and public shaming.

    And the moment they actually solidify those policies into something that you can learn and be confident that you’re safe as long as you follow it, rather than the current situation whereby there are no official rules (because we’re all about FREEDOM TO BE YOURSELF, yo!) but you’ll be tarred and feathered if the wrong person decide that you’ve “obviously” overstepped some line that would “obviously” be a matter of common decency to anyone not being deliberately obtuse – the moment that happens, I’ll be happy to rejoin those communities.

    Yes, I know, I know, bitter much? :p Like I said, I’m not having a good week.

  18. romeostevens says:

    Metis-space has attractors. Some attractors are objectively nicer places to live than others. But spaces in between are even worse than the shitty attractors. At least in the attractors the predictability allows wealth formation.

  19. tmk says:

    I think you go past part III Second too quickly. These descriptions of strange legal systems are idealized. In reality if someone of sufficiently high social status committed a crime, they’d get away with it. If a group of you banded together to beat up someone nobody liked, the legal procedure would never happen and his family members would be told to shut up about it or they’d get beat up too.

    • I like the story if Sir Thomas Holte, the bad tempered baronet who got away with murdering his cook.

      . In July 1608 Holte obtained damages against one William Astgrigg for the slanderous statement made by him that ‘Sir Thomas Holte tooke a cleever, and hytt hys cooke with the same cleever uppon the heade, and clave his heade, that one side thereof fell uppone one of his shoulders, and the other side on the other shoulder, and this I will veryfie to be trewe.’ On appeal, however, it was ingeniously argued that although it had been stated that the halves of the cook’s head had fallen on either shoulder, there was no averment that the cook was killed, and the judgment of the king’s bench was consequently given in favour of the appellant (Croke, Reports, 1791, ii. 184). /blockquote>

    • Doug says:

      > In reality if someone of sufficiently high social status committed a crime, they’d get away with it.

      Yep, definitely nothing like our modern advanced legal system.

      • tmk says:

        I mean, far more so than our current system. It’s easy so see the flaws in our system, because it’s right in front of us. Without a\ hypothetical,. or ancient, or far away system, you can idealize it.

  20. I’m glad Scott liked the book. One thing he did not make clear is that it has not yet been published in the ordinary sense–what he read was the current, reasonably final, draft, webbed for comments. I have a publisher looking at it, and if nobody else wants to publish it I’ll self publish.

    A few points I wanted to comment on:

    Scott writes:

    There’s nothing stopping communities … from … making home schools that educated their members’ children

    That is true in some states, including California where I live, but not in all. The U.S. has compulsory schooling, and the state gets to decide what counts as a school. The Amish have been surprisingly successful in getting their version of schooling accepted, but there is no guarantee that a different community could.

    The interesting thing about the Somali example is that this isn’t some sort of unique “traditional Somali legal system” at all, it’s just the sharia.

    As others suggest, this is not correct. Parts of Somali law are based on Islamic law (for reasons I discuss in the book, I think fiqh, not sharia, is the correct term for it), parts are not.

    As described, it would appear that their whole system only works because people aren’t really willing to leave.

    Yes. Scott doesn’t mention it, but I argue in the book that the Romany system in the U.S. seems to be breaking down because the tolerance of the surrounding society reduces the cost of exit.

    No one speaks your language (at least, nowhere near fluently). You have no idea how anything works; in some cases, you don’t even possess the mental constructs or biomechanical organs necessary to use the most basic facilities. It is extremely easy to cause grievous offence, commit a crime, or even die outright by making some small mistake; it is incredibly difficult to do anything productive because all of your skills are millennia out of date.

    (About Amish exiting)

    That’s a considerable exaggeration. All Amish are bilingual in English and their home language (there are two different ones, both German dialects). Amish have been pretty successful in running small businesses, working construction jobs, and various other things that are also options in the greater community. Off hand, I can’t think of anything that would be a grievous crime in the non-Amish system that an exiting Amish would have any reason to do.

    And in fact, about ten to twenty percent of each generation do leave–often, as another commenter pointed out, for Mennonite communities. Indeed, one puzzle about the Amish is how they manage to maintain their system without the sort of strong barriers to exit that the Romany traditionally had.

    A possible problem with Friedman’s style of explanation might be that it settles on plausible explanations, which is not the same thing as proving that a particular explanation is true.

    Correct. I am not claiming anything close to certainty, just trying to make sense of various legal systems.

    I do discuss the question of how violent Iceland was. I don’t think one can take Njalsaga as good statistical evidence, since sagas select out the interesting parts. There was an old attempt to go through the Sturlung sagas, which describe the final period of breakdown and, unlike the family sagas such as Njal, were written at the time by participants, counting bodies. The estimate worked out as something comparable to the U.S. highway death rate–for the period when the system was breaking down. Compare that to the almost breakdown of the U.S. system during the Civil War. And it looks as though the conversion from paganism to Christianity under the saga period system was much less bloody than the conversion to Lutheranism under the later system of royal rule.

    • Steve Sailer says:

      Here’s my 2014 write-up of the Cochran-Harpending theory that the Amish have been breeding themselves for the last ten generations to be more “plain.”

      http://takimag.com/article/race_of_the_amish_steve_sailer/print

    • Le Maistre Chat says:

      With some parts of Somali law being fiqh and some not, How do you interpret the Islamic Courts Union?

      • I don’t know enough about it to say. My main interest was in the traditional system of Somaliland, not the continuing mess coming from the creation of the state of Somalia, it’s collapse, and the attempts of outside power to recreate it.

    • Zeno of Citium says:

      How complete is the draft? I read it about a year ago when you mentioned it on this blog and it had a few “reference goes here” or “finish this sections” left, but otherwise the ideas were all finished.

      It’s fascinating, by the way – thanks for putting it on the internet for free. My only possibly useful comment is structural – The book might benefit from an introduction chapter to each section – before the Gypsy and Amish law sections, a page or two on embedded law systems and what to look for, and keep the full chapter of synthesis after that. The information and ideas presents in the chapters about each system of law is so alien I think a quick “heads up, the next few chapters are linked by the idea of a divine force providing legal legitimacy” would be useful, but the synthesis chapters coming after is good since I don’t think they’d make sense without the specific chapters first.

      • Thanks for the comments.

        The only thing missing at the moment is the chapter on Student Law, and I don’t know if the author of that will ever actually finish it and send it to me. But if I get a publisher I expect his editor will have suggestions, and if I publish it myself may get my editor (my daughter) to give it a final pass.

        Also, I’m still not sure if I should shorten the very long chapter on 18th c. English criminal law.

    • Qays says:

      Even the parts that are not “based” on Islamic law still constitute a part of Islamic law, though, since Islamic law has no problem incorporating traditional law provided it doesn’t run explicitly counter to the established doctrine of the relevant madhhab (which in this case it doesn’t seem to – I’d imagine those parts have been largely ironed out over the course of Somalia’s Islamization). The description of Somali law in your book seems to indicate that the division between “Islamic law” and “Somali law” is one of specialization and training within a single overarching legal system, rather than two fully parallel legal systems. For instance, when the traditional Somali judge consults with a “religious” specialist about the extent of an injury: this looks like a traditional Islamic judge-jurisconsult (qadi-mufti) relationship. The Somali legal system seems to be a form of tribal arbitration, which is called sulh or tahkim under Islamic law.

      I suppose the dispositive question is: can a case “cross over” from a tribal judge into a court that everyone would recognize as being “Islamic”? Perhaps if there’s an impasse where the parties can’t agree on a mutually acceptable judge?

    • benwave says:

      It strikes me that the examples outlined in this post seem to, more or less, function for homogeneous groups without extreme power differences between members. I wonder how well these alternate methods of dispute resolution would work in a modern pluralistic society with significantly lopsided power relations? The history is indeed interesting, and the ideas appealing but I do wonder if they would be as effective operating on modern society; or more optimistically what changes would need to be introduced in order for them to cope with such power relations.

      Perhaps there were some more examples from your book not covered here which are applicable?

  21. poignardazur says:

    > And there’s another perspective where lots of countries have a King, because some guy seized so much power that he can live in a giant palace and order people around all day instead of doing work. And if anyone tries to prevent him from doing that, he can arrange to have that person beheaded.

    You’re saying that like “Kings exist because they’re powerful” and “Kings exist because they provide stability” are two distinct interpretations, but they’re kind of interconnected.

    Large scales monopolies on violence have clear rules on who gets to be the Tzar of violence because the Tzars of violence have an incentive to make sure the rules of “Who is the Tzar” are as clear as possible, which require violencing the hell out of anyone who tries to break the rules.

    But yeah, that’s a pretty interesting question. Is “being able to behead anyone who disagrees with you, but not too spuriously or they might reach the schelling point of overthrowing me” beneficial to the governed people, in a weird game-theoretic prisoner’s-dilemma-ish way? My gut says “yes”, but Western governments seem to be doing mostly fine with very little spurious beheading, so I’m probably just simplifying politics beyond usefulness.

    • spurious says:

      I had a quick play with this idea. Imagine a 3×3 grid. The vertical axis provides for three levels of knowledge: common (everybody knows that everybody knows, and everybody knows . . .), private (I know but I don’t know if you know) and secrecy (nobody knows). The horizontal allows for three levels of co-oporation: submissiveness (I am willing to be ripped off), fairness (I want half) and dominance (I am capable of taking, and willing to take, all I can get).

      Dominant individuals will want their dominance to be private knowledge, but not common knowledge. They have an incentive to let you know what they’re willing to do–so you’ll submit at low cost–but not for everyone to know that everybody knows, allowing us to band together to the dominant figure’s detriment. A system of laws for the most part adhered to helps the dominant figure project this communal illusion. ‘Look at these rules I came up with that curtail my own freedoms.’ And the benefit accrues both ways, because the system of laws minimises fair and submissives’ individual risks.

      I don’t know if this is a Schelling point so much as straightforward strategic reasoning allowed to reach its natural conclusion under group conditions.

      Meanwhile for fair individuals, common knowledge is probably optimum. I am going to be fair and so it’s handy if you believe it and we can transact with minimum wasted signalling. A system of laws works well here provided it is clearly more powerful than I am and can’t be skirted; else it loses signal value. Thus as society becomes more mercantile, we end up both with sophisticated legal theory and the means to enforce it; both barriers to rorting the system.

      Submissive individuals, meanwhile, need to keep schtum, which would make strict enforcement beneficial. (I have no choice but to try to punish you even though I’d be quite happy to let it slide.) Not that the law is likely to be written around their interests.

      Eh . . . Go easy, folks. Tis just speculatin’.

    • psmith says:

      Yes, this is an important point. Presumably an actual Marxist account of the evolution of monarchy would be historical-materialist in methodology; monarchies arise not because somebody “seizes power” but because they’re better-optimized for their own organizational survival than the competition, given the technology available at the time (with respect to economic production and military power both.). The extent to which this is aligned with some kind of general well-being depends on the relevant technology. If you need lots of factory workers and able, willing riflemen for continued existence because that happens to be the state of the art in economic production and force projection, organizational stability is pretty close to general well-being. If you only need a few mounted knights (ignoring the actual historical role of agricultural labor here in order to make my point), maybe not so much.

    • Standing in the Shadows says:

      but Western governments seem to be doing mostly fine with very little spurious beheading

      A dozen cases of spurious beheading a year would be better than how the so called “justice system” works now. Kill a dozen random people quickly with a single headsman, or slowly slowly torture by inches hundreds of thousands a people a year, by cops, prosecutors, and prison guards, hmm…

      I’m sure that the guy who a bunch of jail guards gleefully torture murdered by being tied up and thrown into a full-on hot shower for screaming hours on hours would, given the choice, picked beheading instead.

  22. platanenallee says:

    “If a member got convicted of a crime, everyone else would come together to help them pony up the camels,” Scott said hoarsely.

    agree to bound by their laws instead → be bound

    anyone who felt like could bring a criminal to court → felt like it

    blunder into highly advanced systems about the best way of doing whatever it is they do → blunder into smth about smth sounds odd

    everyone who does ends up better off than the people who doesn’t → don’t?

    didn’t seem be prepared for crime → (to be)

  23. Murphy says:

    And whenever I read David Friedman, it sounds like “The X’wunda ensure positive-sum intergenerational trade by a market system in which everyone pays the efficient price for continued economic relationships with their spouse’s clan; they demonstrate their honesty with a costly signal of self-mutilation that creates common knowledge of belief in a faith whose priests are able to arbitrate financial disputes.”

    My big problem with this is that it tends to wrap up social stability and doing what’s right and treat them as if they’re the same thing.

    I know I know I’m implying that there’s something to the idea of “right” beyond what the local society enforces.

    it’s easier to see if you apply the same kind of view to our own society and see how it matches up.

    For example the existing US bail system where financial services companies loan people the cost of bail in exchange for 10% of the total even if you’re found totally not-guilty is a fairly stable system and maximises something or other and solves some other problem… but it’s also a horrendous system that effectively punishes the poor more than the well off… but that’s ok because poor people have so much less power or economic clout that them being pissed off about it isn’t a problem as long as their level of pissed-off-ness doesn’t reach critical levels and cause big riots….

    The Amish system sounds nice until you remember that in many of those communities bringing your grievance to the secular authorities is itself an offence warranting [maximum penalty]. So we have some lovely real-world examples of cases like a Amish girl who was raped for years by her brothers and father, it was eventually brought to the attention of the community. The dad and brothers were ploughing buddies of the local head-honcho and were part of a well off and big family so they suffered the steep penalty of having to say sorry in front of church and spend 6 weeks in penance.

    The girl who was raped for years then found herself in breach of the communities rules because she was unwilling to completely forgive years of sexual abuse in exchange for a grudging “sorry”. So, because she didn’t want to forgive and forget all the brutal rape and move back in with papa and brothers she was ostracised while her abusers were welcomed back into the community after their 6 weeks “penance”.

    Again, it’s a stable system. Kicking out the occasional penniless powerless young girl doesn’t do much to undermine the system as a whole.

    I’m reminded of a more secular non-justice situation. old story of a drug,Eflornithine that was effective treating a pretty horrible disease: sleeping sickness. Unfortunately sleeping sickness pretty much only affects really really poor people. So even though the expensive step, the research was done it still wasn’t profitable enough to produce it because the people dying weren’t rich enough. So production was just shut down by the patent holder. (they meanwhile continued producing a cream using the same substance to suppress growth of hair sold in richer countries)

    It’s economically stable, the people most harmed by it have too little power to fight back or upset the apple cart… so the system maximises XYZ etc while doing something that most people would consider abhorrent.

    Many of these things feel like they are to justice what the Eflornithine thing is to economics.

    Actually enforcing any really harsh penalty against that super rich and powerful guy who abducted and killed that girl is super-hard… but we can enforce a modest fine at least by threatening to make his life awkward….. which will generally keep him from murdering very many people except when he really really wants to.

    I get the feeling that more mature legal systems seem to aspire to more than just stability. Or perhaps other societies were just happier with the idea that harming people with no power to upset the system is more ok and the society I grew up in is freakish in viewing general prohibitions against rape and murder even of poor people as sacred values and the idea of trading the right to commit a murder for the equivalent of about $70000 feels abhorrent.

    I think I came across some sections of this book when I was browsing David F’s site a while back and I do consider it both fascinating and excellent, some of it a little too certain: a romani I know didn’t believe her community matched some of what was described very well but then I imagine they’re quite heterogeneous.

    • fion says:

      This is a good point. I guess it’s like how biological evolution produces organisms that are good at reproducing. It doesn’t necessarily create organisms with a good quality of life.

      Societal evolution produces systems which are stable, but doesn’t necessarily produce systems that are nice to live in.

      Having said that, I feel as though that should come as a by-product if we accept the premise. Like, biological evolution has to produce organisms whose quality of life isn’t too bad, or they’d be in danger of killing themselves and not reproducing. Similarly, societal evolution has to produce systems that aren’t too horrible to live in or lots of people will try to change them and then they won’t be stable anymore.

      • Murphy says:

        That’s a good way of putting it.

        Though i’d also argue that biological evolution has few limits on how awful it can make quality of life as innate repulsion from the concept of suicide is just another slider that evolution can adjust. You could have a species for which every moment is agony but which is also extremely strongly repulsed by suicide while still being utterly miserable.

        The social equivalent might be a society where everyone is miserable but the society has built up regicide or rebellion as the ultimate of taboo sins to keep itself stable.

        societal evolution also only has to produce systems that aren’t too horrible to live in for the fraction of the population with any significant power to change things.

        I’m reminded of one of the SSC entries:

        http://slatestarcodex.com/2014/09/27/bottomless-pits-of-suffering/

        the society can be counted as the 1000 people outside the pit and , say, the 1,000,000 inside it. But the 1,000,000 inside it have zero power to change society. The few people you do pull out of the pit might have extra incentive to change things but that just makes pulling people out of the pit a source of instability in society which hints that such a society might simply end up with a strictly enforced “Never pull anyone out of the pit” law.

      • albatross11 says:

        Sort of like biological evolution. We get beautiful things like fields of wildflowers with butterflies pollenating them, but also ugly things like wasps’ larvae devouring their prey from the inside out. It all has to work, and if it happens to meet our other goals, that’s great, but not guaranteed.

    • JulieK says:

      I think I heard about a powerful guy in Hollywood who got away with something similar- would you say that was in the context of a mature legal system?

      • Ninmesara says:

        If we’re talking about the same powerful Hollywood guy, then I don’t think the legal system was actually brought into the matter.

        Rape is a tricky thing to prove anyway, and I don’t think any legal system can balance presumption of innocence with punishing the guilty party in cases where the evidence is less clear. Sex with an underage minor is easier to prove, as long as evidence is collected quickly, and I believe most courts in LA would do a better job if biological evidence was available.

        This obviously discourages victims to come forward (what good is it if no one is going to believe the victim?).

        In the general case, I believe this is a problem with any legal system, no matter how “mature”. Any system that requires enough evidence to unambiguously convict someone will let too many guilty people walk free.

        Unlike bribing judges and stuff like that (which mean the system is not mature enough), the above problem seems impossible to solve, unfortunately…

    • Nabil ad Dajjal says:

      I get the feeling that more mature legal systems seem to aspire to more than just stability.

      This could easily, and more correctly IMO, be rephrased as “traditional societies have a realistic appraisal of their own limitations while modernity fantasizes about limitless power.”

      Think about your chosen example: a drug which some poor people need to live is more expensive to manufacture than their demand can support, while some rich people can afford to buy it for frivolous purposes. That’s generalizable. After all, isn’t that exactly how you would you describe a famine where the rich go to sleep with full stomachs and the poor starve?

      But nationalization of agriculture doesn’t end famines: in fact it reliably causes famines whenever it’s tried. The choice isn’t between the poor starving and everyone eating well; it’s between the poor starving and everyone starving.

      Perfect justice is impossible. Trying to do the impossible leads to failure. And that failure is invariably much much uglier than the original problem was.

      • Ninmesara says:

        But nationalization of agriculture doesn’t end famines: in fact it reliably causes famines whenever it’s tried. The choice isn’t between the poor starving and everyone eating well; it’s between the poor starving and everyone starving.

        Isn’t agriculture heavily subsidized in many developed countries in order to keep prices low? I remember reading it somewhere. It doesn’t detract from your point at all, of course. A subsidy is completely different from outright nationalization. It often maintains competition between producers and incentivizes efficiency (if you can produce more cheaply you’ll get more money).

        • Isn’t agriculture heavily subsidized in many developed countries in order to keep prices low?

          You have it backwards. In developed countries, where farmers are a small part of the population, government intervention is generally for the purpose of pushing food prices up in order to buy the votes of the farmers. The EU does it by trade barriers against cheaper food from places such as Africa. The U.S. has at various times bought agricultural produce and stored it in order to push prices up or paid farmers to keep land out of production. Currently the U.S. requires gasoline to have a fraction of ethanol in it, despite the fact that most of the environmentalists eventually concluded that growing corn to turn into ethanol did not actually slow global warming–because it pushes up the price of corn.

          • Ninmesara says:

            I stand corrected.

            Meanwhile I remember where I’ve “read” about subsidies making things cheaper. It was actually a documentary on TV I’ve seen a couple of years ago where they claimed subsidized products from the European Union were competing with more expensive products in Africa or India (I honestly don’t remember), driving down food costs but harming African or Indian) producers. They claimed that the effect of food subsidies were an artificial decrease in food prices with which the developed countries couldn’t compete.

            According to what you say and after a cursory reading of Wikipedia, the documentary producers seem to have gotten it all wrong. I can’t actually explain that documentary except as a piece of deliberate misinformation.

          • Matt M says:

            I’ve seen a couple of years ago where they claimed subsidized products from the European Union were competing with more expensive products in Africa or India (I honestly don’t remember), driving down food costs but harming African or Indian) producers.

            I think what’s meant here is that the government subsidizes local producers such that they can sell at the prevailing “market” rate and still be profitable.

            Let’s say the market-clearing rate for wheat is $100/ton. Foreign growers can sell for that and make a decent return, but local growers require a price of $120/ton to make a similar return. Absent any subsidies, local growers withdraw from the market and foreign growers dominate. But the state could pay every local grower $20/ton, so long as they agree to sell for $100/ton, and they still make their rate of return, displacing foreign competition.

            This is a slightly different mechanism than David describes above, but achieves similar ends (using tax dollars to artificially shift the market away from foreign producers and towards domestic ones)

          • There is another way in which the policy I described can be linked to low food prices outside the country.

            Suppose the U.S. government has a policy of buying wheat any time the price is below some preset price (“parity”). Since the price is above the price where quantity supplied equals quantity demanded, the U.S. government accumulates wheat. One thing to do with it is to dump it–sell it at a loss outside the U.S. or give it away as part of “foreign aid.” That drives down prices outside the U.S.

          • Watchman says:

            Ninmesara,

            I think what you have there is dumping, the product of another EU genius scheme, whereby they guarantee a minimum price to producers regardless of demand, so producing a surplus agricultural production in the EU, which is then sold at a low price in other markets, undercutting local producers already effectively excluded from the EU (and the EU wonders why the traditionally-free-trading British might not have wanted to stay in this nice cartel…).

            But in general subsidies to producers are bad, simply because they reduce the incentive to increase productivity, meaning you end up with undeveloped agriculture, with all the harms of this to the environment as the only way to increase yield is to increase the resources put in. Plus it is a social issue, in that by sticking agriculture at the present level of development, you require the same level of manpower, thus ensuring a larger proportion of the population are involved in producing basic resources in peasant or small farm societies, and effectively putting a stop to one of the key drivers behind the social change that created the advanced western economies.

            All of which is to say that many fair trade schemes are not doing their recipients any long-term favours.

          • Aapje says:

            @Watchman

            Plus it is a social issue, in that by sticking agriculture at the present level of development, you require the same level of manpower, thus ensuring a larger proportion of the population are involved in producing basic resources in peasant or small farm societies, and effectively putting a stop to one of the key drivers behind the social change that created the advanced western economies.

            You do realize that quite a few people are very unhappy with this, right?

            The depopulation of rural areas has substantial negative effects on those who (want to) stay there.

            The thing I find frustrating is that many of the fans of globalization, who usually enjoy most of the benefits and few of the downsides, are extremely unsympathetic with those who enjoy few of the benefits and many downsides.

            I would respect this selfishness much more if people would own it, rather than delude themselves that it is altruism.

            PS. Farmers are already a small percentage of the population in the West. I don’t see how driving this down further is critical to advancing our economy.

          • The original Mr. X says:

            The depopulation of rural areas has substantial negative effects on those who (want to) stay there.

            Not to mention, living in the countryside and living in small communities tend to be positively correlated with happiness. So, quite apart from people living in the countryside who want to stay there, maybe people currently doing manufacturing or service work in big cities would be happier if they moved to the country to start farming.

          • Thomas Jørgensen says:

            The european agricultural subsidies are not about cheap food – they are motivated by military and strategic considerations. The founders of the EU were all europeans who went through the food shortages of the second world war and its aftermath, then they saw the end of the colonial era, and decided that keeping food production domestic was a priority and the economics of that could go hang.

            Noone wanted food imports from Zimbabwe to be important, because that might obligate them to send tanks there if things went sideways.

            You could argue this is a case of lost purpose – a system running on inertia long after it stopped making sense, but.. uhm.. The agricultural output of those lower-cost food producers is not all that stable. A premium cost to be sure you do not have food riots is not crazy.

      • Ninmesara says:

        This could easily, and more correctly IMO, be rephrased as “traditional societies have a realistic appraisal of their own limitations while modernity fantasizes about limitless power.”

        Think about your chosen example: a drug which some poor people need to live is more expensive to manufacture than their demand can support, while some rich people can afford to buy it for frivolous purposes. That’s generalizable. After all, isn’t that exactly how you would you describe a famine where the rich go to sleep with full stomachs and the poor starve?

        I wonder if these two paragraphs are somehow related. Most developed countries have effectively ended hunger, defined as people dying from famine. Yes, not everyone can eat whatever they want all the time, but in the US, for example, there is basically zero hunger. Some of this is due to welfare, of course, but I’d bet most of it is because we produce more than enough food to feed everyone at reasonable prices, and food consumption is quite stable among people. People need to consume a given number of calories per day, a number that’s quite similar (probably no one needs to eat more than 5000 calories per day, for example). So we’ve solved hunger by simply having technology that magics hunger away plus some basic redistribution scheme.

        Healthcare is much more complicated than this. There is a huge disparity of needs in healthcare. Some rare people never need any (zero dollars spent in healthcare for their entire lifetime), while some people need to spend a lot. As technology advances, so does our capability to do something for those people, which costs money. This creates an obligation to spend more and more money in healthcare to preserve people from dying (dialysis for kidney failure, hormone replacements, hypertension drugs, etc.) or keep their quality of life (surgeries for joint pain – yes, some of them work and are very expensive, etc.). This means we probably can’t weasel our way out of the moral dilemma with technology, as technology has been making the problem “worse”: each time a new treatment is discovered, it creates a new obligation to spend money, instead of the alternative, which is to let the person die or simply live with a lower quality of life.

        It’s been long since a treatment has been discovered that prolongs active life in a way that makes the person contribute to society more than the price of the treatment, and this state of affairs will probably continue in the medium term (I don’t dare make predictions for the long term because I risk missing something like antibiotics).

        • Nabil ad Dajjal says:

          I’m not actually in the pharmaceutical industry, but I’m at a biomedical science research institution and know a fair number of people in the industry and government.

          The current situation where a handful of new drugs come out every year with a billion dollar price tag is pretty much entirely due to the regulatory environment. You can argue pros and cons but with a less stringent process we could easily be making tens to hundreds of times as many drugs as we do.

          Some of them wouldn’t work as well as advertised or would have nasty side effects. There would also be people who could be treated then that we can’t treat today.

          Personally I’m against this artificial scarcity, for the same reason that I would oppose a return to collective farms. But even if you think it’s the best option, it’s not a problem with the technology being inherently expensive.

          • Ninmesara says:

            Some of them wouldn’t work as well as advertised or would have nasty side effects. There would also be people who could be treated then that we can’t treat today.

            But even if you think it’s the best option, it’s not a problem with the technology being inherently expensive.

            I believe it *is* inherently expensive at the current level of effectiveness, because the regulations are needed for it to be effective. Once you break down regulation, people will start selling snake oil or worse. I don’t know what’s the optimum level of regulation, of course, and I believe we’re probably not there. But I think the optimum isn’t zero regulation.

          • Nabil ad Dajjal says:

            I didn’t say anything about zero regulation. Any less convoluted system would involve the same trade-off.

            In terms of effectiveness, I don’t think that you understand how intense the process is. By the time you get to Phase III you’ve weeded out 90% of drug candidates and tested extensively for effectiveness and toxicity in both humans and animals. The remaining two phases and post-approval studies cost hundreds of millions of dollars more and add years to the process, not to mention the cost of eliminating all but a literal handful of the 10% of drugs that were good enough to get past Phase II testing.

            Making approval cost a half billion less or take a few fewer years isn’t going to leave us in a dystopian hellhole of poison pills. It just means that we’re choosing from the top 10% of drugs and not the top 0.1%.

            You can argue the trade-offs but it’s not as though any loosening of regulations is going to lead to snake-oil.

          • Once you break down regulation, people will start selling snake oil or worse.

            There is some evidence on this–Peltzman’s classic article on the Kefauver Amendments to the Pure Food and Drug Act. The amendments required that a new drug be not only shown to be safe, already required, but effective–do something useful.

            As best Peltzman could judge, the requirement had no effect on the average quality of drugs. It did, however, reduce the number of new drugs that came on the market each year roughly in half.

            That’s a brief summary by memory, but I expect the article is webbed somewhere.

          • Ninmesara says:

            @Nabil ad Dajjal

            Making approval cost a half billion less or take a few fewer years isn’t going to leave us in a dystopian hellhole of poison pills. It just means that we’re choosing from the top 10% of drugs and not the top 0.1%.

            As a newly licensed doctor, I am extremely distrustful of of pharmaceutical companies. Irrationally? Maybe, but companies seem to be experts in using the “file-drawer” effect to show whatever they want to show, which is concerning. As a practitioner, I am 100% dependent on study results to gauge the effectiveness of a drug, as healthcare is way too noisy for my personal experience to count for much in many cases, and if study results are kinda fake (which inform the guidelines I use, I can’t read all studies myself, of course) my patients will suffer.

            I do in fact sincerely believe they’d (knowingly?) push borderline poisonous pills if they could get away with it and that the approval agencies are key to keeping them honest. I don’t think the market (we doctors our patients) would be very good at catching them if this were the case.

            Maybe, as David Friedman says above, requiring proof of effectiveness doesn’t make a difference, in which case sure, drop that. But I think we need some kind of oversight over those companies.

            The pragmatic truth is that currently lots of very simliar drugs are being produced, and their efficacy is so similar that knowing which one is better might not be worth it (i.e. we are after statistically significant differences that might not be clinically significant), but I think that a strong regulatory environment is key to having reached this state.

          • Ninmesara says:

            @DavidFriedman Do you have a link to the Peltzman article? I can’ find it on Google Scholar. I’d be very interested in reading it!

          • albatross11 says:

            The question is, are we better off with:

            a. Fewer drugs making it through the pipeline, but a higher average level of effectiveness in treating what they’re marketed for.

            b. More drugs making it through the pipeline, but a lower average level of effectiveness in treating what they’re marketed for.

            It’s not obvious to me why we should think the current US regulatory environment is at the optimal point in this tradeoff, but I’m probably not informed enough to have much of an opinion about how close to optimal we are.

          • @ninmesara:

            Here is the Peltzman article.

    • Ninmesara says:

      Actually enforcing any really harsh penalty against that super rich and powerful guy who abducted and killed that girl is super-hard… but we can enforce a modest fine at least by threatening to make his life awkward….. which will generally keep him from murdering very many people except when he really really wants to.

      the society I grew up in is freakish in viewing general prohibitions against rape and murder even of poor people as sacred values and the idea of trading the right to commit a murder for the equivalent of about $70000 feels abhorrent.

      Do you mean by this that “6 weeks of penance” is the normal punishment for rape in the Amish, or is the punishment much worse and this was a case of corruption of justice? Corruption of justice also exists in mainstream normal American society. Maybe if you ask the Amish they’d say that rape is horrible and deserves exile but then wouldn’t ban their friend who did it. Couldn’t this thing happen with normal judges/juries from a Western country? I think the main difference here is that once a judge convicts, the right punishment must be applied (you can’t convict someone of rape and condemn them to a 5€ fine, for example), but I can totally see a judge/jurie fail to convict a friend or an important person.

      I believe that in practice judgements rendered in a a “normal” legal system will be more just than whatever happens with the Amish

    • AnthonyC says:

      “I get the feeling that more mature legal systems seem to aspire to more than just stability. Or perhaps other societies were just happier with the idea that harming people with no power to upset the system is more ok and the society I grew up in is freakish in viewing general prohibitions against rape and murder even of poor people as sacred values and the idea of trading the right to commit a murder for the equivalent of about $70000 feels abhorrent.”

      I suspect a big part of this isn’t “maturity” but “wealth.” We moderns aren’t biologically better than anyone else, but we have more spare resources (money, labor, knowledge). Tracking down every murderer or rapist or any other criminal is expensive, and we are able to comfortably throw more resources at the problem than, say medieval Iceland could. The intuitions are in many ways the same at the individual level – they were obvious to Buddha and Jesus, among plenty of others.

      We also chase diminishing returns in medicine by throwing vastly more money at them than our ancestors did, but I doubt we care for our family members so much more than they did. See the recent articles on https://randomcriticalanalysis.wordpress.com/

  24. fion says:

    I’m very interested by the question of “X happened because societies who do X are more successful and survive better than societies that don’t” vs. “X happened because it was in the interests of the powerful.”

    Would they always look the same? Can we come up with any tests that would increase our credence for one kind of explanation over the other?

    One of the things that makes me hesitant about believing cultural evolution-type arguments is that the numbers involved seem too small. Biological evolution works because there are large numbers of organisms, and because their generations are short, there are large numbers of generations. And it still takes hundreds of thousands of years to do anything. But how many societies are there at a given time? How often do “generations” happen? I think these numbers are much smaller, which will reduce the signal-to-noise ratio of any evolution.

    Am I just misunderstanding cultural evolution? Am I over-interpreting the analogy to biological evolution?

    And it’s an important question, because our interpretation of why society is the way it is has big implications for what we should do to make it better. If you believe that things happen because they’re in the interests of the powerful, then that might incentivise you to fight power, especially if your class has different interests from the powerful class. (Hence Marxists are virtually always leftists.) However, if you believe that things happen because of cultural evolution, then you might feel more passive. You’d be hesitant of changing anything because our society has presumably evolved to something pretty good/stable and you shouldn’t be confident that you can do better. Your beliefs would probably go to the meta-level, to try to create the kind of background on which cultural evolution can be most efficient, and you might not concern yourself with the details of how the society actually looks.

    (Of course, if it’s true that society evolves along the lines of “X happened because societies who do X are more successful and survive better than societies that don’t” then presumably any perceived obstacles in current society in the way of cultural evolution are there because society is stronger for having them. I’m not sure you can even escape to the meta…)

    I’d be grateful if anybody who understands either viewpoint could help me find holes in my understanding/reasoning.

    • spurious says:

      One of the things that makes me hesitant about believing cultural evolution-type arguments is that the numbers involved seem too small. Biological evolution works because there are large numbers of organisms, and because their generations are short, there are large numbers of generations. And it still takes hundreds of thousands of years to do anything. But how many societies are there at a given time? How often do “generations” happen? I think these numbers are much smaller, which will reduce the signal-to-noise ratio of any evolution.

      Knowing sod all about cultural evolution, I would have imagined the unit of replication is a behaviour, of which many thousands can fit within an individual lifetime. When you then recognise that a behaviour can be copied and/or trialled en masse in a fairly short space of time, while replicating, say, a giraffe takes much longer, the apparent speed of cultural evolution appears to make more sense.

      • fion says:

        That helps explain the timing issue, but it makes it more mysterious to me how societies are supposed to evolve. Is the state of “having a king” a necessary consequence of a given combination of behaviours?

        • spurious says:

          I suspect it’s a necessary consequences of many different combinations of behaviours. Thus English kings, Chinese emperors etc.

          The complication — and again I’m just making this up now — is that as an emergent phenomenon, we don’t know from what level of reduction it’s best to describe the property emerging from. When we talk about consciousness, we (currently) look to neurons and brain structures instead of quarks, although the property of consciousness is as dependent on the behaviour of quarks as anything else. Likewise a mathematical model of the ‘evolution’ of monarchy would no doubt abstract away whether the norm is to curtsy or bow and just assume some form of genuflection, focusing at the level of group organisation at some given size n and its interaction with other parameters (e.g. resource distribution, technology).

    • Anon. says:

      I recommend Joseph Henrich’s book. There are a lot of cases where there’s no “it favors the powerful” element, so we can see cultural evolution at work a bit more clearly. The numbers don’t seem to be a problem.

  25. I’m glad Scott liked the book. One thing he did not make clear is that it has not yet been published in the ordinary sense–what he read was the current, reasonably final, draft, webbed for comments. I have a publisher looking at it, and if nobody else wants to publish it I’ll self publish.

    A few points I wanted to comment on:

    Scott writes:

    There’s nothing stopping communities … from … making home schools that educated their members’ children

    That is true in some states, including California where I live, but not in all. The U.S. has compulsory schooling, and the state gets to decide what counts as a school. The Amish have been surprisingly successful in getting their version of schooling accepted, but there is no guarantee that a different community could.

    The interesting thing about the Somali example is that this isn’t some sort of unique “traditional Somali legal system” at all, it’s just the sharia.

    As others suggest, this is not correct. Parts of Somali law are based on Islamic law (for reasons I discuss in the book, I think fiqh, not sharia, is the correct term for it), parts are not.

    As described, it would appear that their whole system only works because people aren’t really willing to leave.

    Yes. Scott doesn’t mention it, but I argue in the book that the Romany system in the U.S. seems to be breaking down because the tolerance of the surrounding society reduces the cost of exit.

    No one speaks your language (at least, nowhere near fluently). You have no idea how anything works; in some cases, you don’t even possess the mental constructs or biomechanical organs necessary to use the most basic facilities. It is extremely easy to cause grievous offence, commit a crime, or even die outright by making some small mistake; it is incredibly difficult to do anything productive because all of your skills are millennia out of date.

    (About Amish exiting)

    That’s a considerable exaggeration. All Amish are bilingual in English and their home language (there are two different ones, both German dialects). Amish have been pretty successful in running small businesses, working construction jobs, and various other things that are also options in the greater community. Off hand, I can’t think of anything that would be a grievous crime in the non-Amish system that an exiting Amish would have any reason to do.

    And in fact, about ten to twenty percent of each generation do leave–often, as another commenter pointed out, for Mennonite communities. Indeed, one puzzle about the Amish is how they manage to maintain their system without the sort of strong barriers to exit that the Romany traditionally had.

    A possible problem with Friedman’s style of explanation might be that it settles on plausible explanations, which is not the same thing as proving that a particular explanation is true.

    Correct. I am not claiming anything close to certainty, just trying to make sense of various legal systems.

    I discuss the question of how violent Iceland was in the chapter. I don’t think one can take Njalsaga as good statistical evidence, since sagas select out the interesting parts. There was an old attempt to go through the Sturlung sagas, which describe the final period of breakdown and, unlike the family sagas such as Njal, were written at the time by participants, counting bodies. The estimate worked out as something comparable to the U.S. highway death rate–for the period when the system was breaking down. Compare that to the almost breakdown of the U.S. system during the Civil War. And it looks as though the conversion from paganism to Christianity under the saga period system was much less bloody than the conversion to Lutheranism under the later system of royal rule. The evidence I have seen from elsewhere, in particular England, suggests that murder rates were considerably higher than in modern societies.

    So I think there is evidence that the saga period system resulted in less killing than alternative contemporary systems, but evidence short of proof.

  26. andrewducker says:

    Regarding your comments about kings, I highly recommend the Simon Schama TV series “A History of Britain” (which goes from 3000BC to 2001). There’s a very clear and common pattern, of:
    1) King who understands that he’s there to make things run well, keep the barons onside/wealthy, and prevent the country falling into chaos.
    2) Their child, who has grown up seeing their father rule (relatively) well, and puts in less effort (because the country is pretty stable), but doesn’t get too corrupt. The barons grumble a bit, but life goes on.
    3) _Their_ child, who believes that kings are appointed by God, and that they can rule however they like, and the whining of the barons makes them disloyal/treasonous. Eventually the barons rise up, and the king is replaced with a new one, who understands what he’s there for.
    4) See (1)

  27. AlphaGamma says:

    once the colonies revolted they experimented with jails, found them too expensive, and just sort of flailed around punishment-less until they finally discovered Australia.

    To be fair, this was a relatively short period of time (or less than zero if you’re talking about *discovery*).

    The timeline is something like:

    1770- Captain Cook claims New South Wales for Britain. This becomes known when he returns the next year. The Dutch had landed in Australia more than a century earlier, but only on the NW coast (New South Wales is the SE coast). As yet, no effort is made to settle New South Wales.

    1775- Battle of Lexington, the “shot heard round the world”. The American Revolutionary War starts, and AFAIK within a year transportation of convicts to North America stops. Over the next 10 years, various attempts are made to deal with convicts who would otherwise be transported, including sentencing them to hard labour within Britain (Criminal Law Act 1776), building prisons (Penitentiary Act 1777, though this did not result in any actual prisons being built), warehousing them on prison hulks (old ships), and offering to pardon them if they joined the military. Most of these were meant to be temporary measures until the situation in America was resolved.

    1783- Treaty of Paris signed, recognising US independence. The transportation issue is now permanent.

    1784-85- Various laws passed to establish a penal colony somewhere else in the Empire. They settle on New South Wales, which has still not been settled by Europeans.

    13 May 1787- the First Fleet of convict ships leaves for Australia.

    26 January 1788- the First Fleet arrives.

  28. millericksamuel says:

    At least once the Icelandic legal system did split into two mutually outlawed groups. This was during the conversion to Christianity. It was resolved very quickly though by appointing a Lawspeaker to decide and he converted everyone to Christianity. https://en.wikipedia.org/wiki/Christianization_of_Iceland Here is an interesting podcast on it. https://sagathingpodcast.wordpress.com/2016/10/01/saga-brief-6-the-conversion-of-iceland-part-1/ One interesting point they raise is due to the fact that Icelandic law was so fundamentally religious that it was impossible for their to be two religions as it destroyed the ability to trust each others oaths. Thus the whole country had to convert or not.

  29. A second objection is that the rich (or powerful) could commit crimes with impunity, since nobody would be able to enforce judgment against them. Where power is sufficiently concentrated this might be true; this was one of the problems which led to the eventual breakdown of the Icelandic legal system in the thirteenth century

    That’s an instance of very general problem with libertarianism: it gives better results starting with an roughly equal distribution, and worse results with an unequal distribution..and it tends to generate inequality over time.

    Tanadrin:

    Icelandic society was on the verge of collapse, lacking central enforcement mechanisms, and the only solution the Althing could devise was to invite the king of Norway to come rule them and impose his laws; Iceland became a dependency of foreign powers until the 20th century as a result.

    What a way for a libertopia to go!

    • Wrong Species says:

      It’s funny that the real world analogue to libertarianism failed for the exact reasons that it’s critics said it would, even though they mostly have not heard of Medieveal Iceland. It’s pretty damning that the people who were raised under such a system didn’t even want it.

      • The system lasted for a third of a millenium. The final breakdown occurred at a point at which the Norwegian crown had been actively meddling in Icelandic politics, supporting one leader after another, for decades.

        What, in your view, were the critics saying? If they were correct, why didn’t the system break down for the first two and a half centuries?

        To consider some competitors … . The Norman monarchy broke down into the Stephen vs Matilda civil war within a century of its establishment, followed by John vs the Barons, The Wars of the Roses, The English Civil War. The U.S. system broke down in the Civil War in less than ninety years.

  30. Oleg S. says:

    It’s really quite an amazing book. One interesting concept that captured my imagination is the concept of strict liability from Chinese Laws:

    There are multiple cases where someone commits an offense on orders from a superior member of his extended family; the attitude of the court seems to be that although he must obey the order he is still criminally liable for the act; there appears to be no assumption in the legal system that an individual always has the option of acting in a way that does not violate one rule or another.
    That again might be interpreted as a policy driven by religion, the fear that if cosmic balance was not maintained by punishing someone for a violation of the cosmic rules, the result might be an increased risk of natural catastrophes.

    I find it quite fascinating to think about different trolley problems under the assumption that regardless of the outcome, the person making a decision will be punished for violation of the cosmic rule.

    • Protagoras says:

      Utilitarianism can produce similar outcomes. I’ve seen proposed as the correct view of ticking time bomb torture scenarios that the person with the option should use torture in such cases, but should also be punished for it. Allowing anyone to get away with torture will unacceptably increase the risk of it being used in the much more frequent cases where it is undesirable. People should only torture if they’re so certain it’s the right thing to do and it’s so important that they think it’s worth taking the punishment. Or at least that’s one proposal; not suggesting that all or most utilitarians think the math actually works out that way (or that I do), but that utilitarianism could in principle produce answers like that if the circumstances line up right.

      • Witness says:

        I apply similar (though not quite the same) logic towards use of deadly force (in self-defense, police work, etc.)

        Basically, I’m comfortable with taking any use of deadly force to trial, because I’m comfortable with the idea that you shouldn’t pull the trigger if you’re not willing to explain to a jury why you did it.

        This doesn’t mean that I think putting everyone on trial is *optimal*, of course. But it might be a better Schelling point than we currently have.

      • Oleg S. says:

        I can imagine that there is a contract where a person responsible for dealing with possible ticking time bomb situations is aware of the necessity of torture and possible penalty – just like in a classic example of the owner of a tiger rehabilitation center (no matter how strong the tiger cages are, if an animal escapes and causes damage and injury, the owner is held liable). The risk taken by such person is usually rewarded in some way.

        However, the scenario where a random and unprepared person from a trolley problem with certainty will be punished for murder is just mind-blowing.

    • Aapje says:

      @Oleg S

      I find it quite fascinating to think about different trolley problems under the assumption that regardless of the outcome, the person making a decision will be punished for violation of the cosmic rule.

      Less fascinating than horrible, because it incentivizes people to not help people in need, lest they be held responsible. For example, there is the infamous case where a Chinese toddler was run over and 18 people passed by without helping, so the toddler was then run over a second time. Eventually a street cleaner intervenes. Presumably, only a person with little to lose will assist others when their is no obvious more guilty party to save them from the wrath of such a horrible legal system in place.

      • Oleg S. says:

        I may be mistaken, but I think it works the other way around.

        In the toddler situation, the passer-by can choose to just go away without any risk or legal consequences.

        Now imagine the system where anyone who find themselves in such situation already has to suffer no matter what they do. Helping actual the child may have some risks, but walking away is not a penalty-free option because there is a law that equalizes such behavior to a murder.

        P.S. I think the Chinese Laws described in the book are gone long ago.

        • Aapje says:

          Fair enough, although the Chinese were debating whether they should make a law to make it a crime to not help. I don’t know if they adopted that law. If they did, the combination of that law and the automatic assumption of guild when helping would result in people being punished for any decision they make.

  31. SamChevre says:

    A few details on the Amish-Mennonite legal structures: the OP is mostly correct, but a few critical details are wrong.

    The first, and absolutely critical, note: these structures are all vow-based. Only adults (well, really teenagers–typical age is 16-20) can join the church, and only AFTER you have joined the church by baptism are there any penalties for leaving.

    The second is that it is almost entirely forward-looking: if you sincerely repent and apologize, you aren’t punished for past vow-breaking for more than a few weeks or months–and even then, it’s more a test of “are you serious about this and really willing to abide by the judgment of the congregation” than a punishment. This aspect can cause some tension, since even egregious behavior doesn’t result in much punishment if you act sincerely sorry and stop doing it.

    Think of the Amish system as dividing people into four groups:
    1) Us: this specific congregation with its specific rules
    2) Those in fellowship with us: other sufficiently-similar congregations
    3) Them: anyone who is not and has never been part of Us or those in fellowship with Us. (This includes everyone from less-conservative Amish, to Hindus; it’s an inclusive group.)
    4) Renegades: those who were part of Us by taking vows to Us, and broke them, and refuse to apologize and keep their vows.

    Only Renegades are excommunicated and shunned.

    Here’s one incorrect detail: respecting Our judgments is a requirement for being in fellowship with Us. But not doing so doesn’t make you a Renegade unless you were one of Us; it only makes you one of Them. So if group A doesn’t respect the excommunication of someone from group B, that doesn’t mean group A will all shun all of group B; it just means no one is free to leave group A and join group B.

    Normally, anyone can move between groups in fellowship (this varies somewhat from congregation to congregation–it’s generally easier in the Mennonite world, where the permission to move is the default, than in the Amish, where permission is generally given but you must ask for it and be granted permission to go somewhere specific).

    Another correction on a detail: it’s not that everyone votes with the Bishop. It’s usually this way: the rules are set and known. To change a rule requires:
    1) The Bishop’s agreement
    2) The other ministers unanimous agreement (There are usually 3 or 4 other ministers)
    3) An overwhelming majority vote from everyone else (the requirement is by congregation, but usually 75% to 90%)

    One key jurisprudential quarrel is what things require the permission above:
    1) In every congregation I know of, formal changes to stated rules require that permission
    2) In some congregations, openly breaking a stated rule can be punished without that process; in many, excommunication also requires that permission. (This quarrel blew the churches I grew up in to shreds forty years ago, and the ripple effects are still going.) When excommunication requires a full vote, you can leave (or break the rules) without punishment if a sufficient number of people think you do not deserve punishment. That’s often a way of forcing a vote on a formal change of the rules–openly break them when a significant number of people back you.
    3) In some congregations, permission to leave requires this process (that’s more common among Amish congregations)
    4) In some congregations, some kinds of business ventures require this sort of permission. (That’s what I was formally excommunicated for–not getting permission before buying a house to repair.)

    Leaving the Amish world isn’t as bad as moving to Asgard: it’s more like moving from the US to India or Kenya.

  32. Lasagna says:

    18th century England had a government, a court system, and some minimal law enforcement – but it really sucked. There were no public prosecutors; anyone who felt like could bring a criminal to court and start prosecuting him, but if nobody felt like it then the crime remained unpunished. Prosecuting took a lot of time and money and was generally a thankless task. And the government didn’t want to go to the expense of imprisoning people, so they usually just hanged convicted offenders (if the crime seemed really bad) or pardoned them (if it didn’t seem to merit hanging). The exotic anarcho-capitalist part comes in as English civil society creates its own structures to work around these limitations.

    Based on nothing at all: this sounds like something that might work in London, but would have been very weird outside of a city. Is this one of those times where we say “nation” but mean “capital”?

    • albatross11 says:

      One aside: we’re used to having a lot of minor nuisance type laws enforced by the legal system. In many places (including many parts of US society) that kind of thing is handled informally, with social pressure or hard words or someone getting beaten up. And that involves obvious problems–the friendless little old lady is rarely going to demand that the 30 year old biker next door turn down his damned stereo. (Or if she does, she’s necessarily going to take no for an answer.)

    • AlphaGamma says:

      Until quite recently in England, justice was local. Until the mid-19th century, criminals (except traitors and possibly a few others) were only tried in the county where the offence was committed. A law was passed in 1856 to allow cases from outside Greater London to be heard at the Old Bailey so William Palmer, the Rugeley poisoner (Rugeley is in Staffordshire in the Midlands), could receive a fair trial as any local jury would have been prejudiced. But even then, Palmer was returned to Staffordshire to be hanged.

  33. JulieK says:

    As far as I can tell, the Amish have no idea what to do about any crime more dire than using a telephone.

    Presumably they have the possibility of turning those crimes over to the non-Amish justice system. Many people would say that the ideal role of a community justice system is within a two-tier system- your community handles (a) things that the government doesn’t care about at all (like someone Amish using a telephone) and (b) civil cases where both parties agree to go to the community judge; but actual crimes get handled outside the community.
    For example, I’ve seen a lot of bloggers saying that a university’s disciplinary authorities should never handle actual crimes; they should always call in the police in such cases.

    • albatross11 says:

      +1

      In fact, this is how most private organizations work. The boss may yell at you or fire you for coming in late, but he doesn’t call the police on you unless you assault a coworker or steal money. (Even then, he may prefer to handle it quietly by firing you.) A minister who has an affair with an adult parishioner may be forced by his church to step down, but won’t be going to jail for it. And so on.

    • SamChevre says:

      In general, no, they won’t turn to the outside justice system. That’s where the fact that this is a religious system, at base, shows: they will co-operate with the outside justice system to some degree, but won’t ask for it’s specific protection.

      (For example, when I was a boy, we would report thefts since that was viewed as protecting others, but would not be willing to press charges, since that is for our own benefit.)

      • Matt M says:

        I wonder. If a group of armed thugs moved into the middle of an Amish community and shot any Amish person who attempted to come chat with them, what would they do about it? Give up the land and let the people be and continue to turn the other cheek during any robberies?

        I feel like they might appeal to English law on that one…

        • Nabil ad Dajjal says:

          There was a real life example of this during the Russian revolution.

          A group of anarchists led by Nestor Makhno were committing atrocities against “Russian” (ethnically German) Mennonite colonies. Killing the entire male populations of villages, mass rapes, robbery, etc.

          A few thousand young Mennonite men, organized and armed by German army veterans, formed Selbshutz (self defense) units in response. They were unsuccessful in resisting Makhno’s forces and when the Red Army joined forces with Makhno they were defeated. Many Russian Mennonites fled the country afterwards and established colonies in Canada.

          The consensus seems to be that renouncing pacifism was a mistake and only made things worse. Better to get the hell out of dodge than to stand and fight.

          • SamChevre says:

            And the Selbshutzen are still remembered as somewhere between traitors and fools.

            Amish and Mennonites run: they don’t fight. There have been several countries that had major Amish and Mennonite communities, but don’t anymore because they were driven off by violence (Guatemala, Honduras).

        • j1000000 says:

          I dunno about how they’d react on a group level, but that guy Dirk Willems sure held to his principles: https://en.wikipedia.org/wiki/Dirk_Willems

    • herbert herberson says:

      This is also sorta how tribal law enforcement in the US works in the places where it occurs–they’re limited in terms of sentences they can hand down (1 year jail, or, if the case is tried under a sufficient number of Western-style safeguards, 3 years), so they handle the low level stuff and leave the felonies to the feds.

      The main issue there is that there is a sometimes a gap. The Feds will typically handle the sorts of crimes that would lead to 10+ years of imprisonment, but ones where 4-9 years seems more appropriate tend to fall through the cracks

  34. actinide meta says:

    I’m still interested in feedback on the Pax, a proposed legal system very different from ours (a “constitutional anarchy”).

  35. albatross11 says:

    One thing that strikes me: American culture puts a huge premium on the right to exit.

    The great majority of Americans are here because our ancestors decided to leave their traditional society and try for something better, often across much tougher barriers and accepting much higher risks than anything we’d be likely to face today. (The exceptions are descendants of American Indians and people brought here as slaves.)

    Much of the US was settled by people doing that same thing again–deciding that their life in Virginia sucked so they’d try homesteading in Oklaholma or Missouri or North Dakota or something. And again, they were accepting huge personal risks and hardship for an uncertain gain.

    And modern US society has this notion of leaving home and making your way in the world. This is unevenly distributed–lots of people stay within 100 miles of where they were born–but plenty of us, especially the most ambitious and successful–chase our dreams or goals or jobs across the country. (The downside of this is the progression of American neighborhoods and suburbs–the original nice suburb gets more run down and poorer over time, and the ambitious/successful people leave for greener pastures, till eventually there’s not much tax base left to maintain things.)

    All this means that American society has a really strong attachment to the right of exit, to “voting with your feet.” It’s a big part of our culture, not least because most people who are involved in producing our popular culture had to leave home and move to some cultural center to be in a position to produce it. And this makes me wonder if we over-emphasize it relative to people from other cultures.

  36. Peter Shenkin says:

    This could well be called Comparative economics of criminal justice systems.

  37. Standing in the Shadows says:

    I keep meaning to read that book.

    Regarding “how can they handle more serious crimes?”, the obvious answer is contained in “after the clan combine has paid the 12 camels, the accused is turned over to his family”.

    Far enough back, how families took care of family members was an internal matter.

    And “took care of” both possible senses of the term.

    The accused’s grandfather and his grandfather’s brothers now probably owed those 12 camels to the other clan leaders, and they were *pissed*. And they had the right and power of life and death over their wayward grandson. They could beat him bloody, and everyone would agree they were right in doing so. And then they could put him to work doing painful and degrading labor, until that debt was paid. And if it never was, well, there was always need of idiot grandsons to do painful and degrading work.

  38. Stuart Buck says:

    This reminds me of Peter Leeson’s claim that
    trial by ordeal actually worked.

    (Longer academic version)

  39. Neutrino says:

    Entry costs may be considered by the exiter and from a different perspective by the other society or group being joined. Those costs for that entry or joining may not be well-defined, or acknowledged, or may be circumvented. Whose costs, in a who-whom context.

    America for some decades has been undergoing publicized struggles with the joining and entry definition and control.

  40. entobat says:

    Group members would publish their names in the newspaper to help inform thieves whom it was a bad idea to rob.

    I am fascinated by the use of “whom” in this sentence.

    At first glance, I thought it was wrong. “Group members” are in subject position, “thieves” are in object position, and if you put the relative pronoun in dative (object) case it means it refers to “thieves”. So “to inform those thieves x satisfying ‘it would be a bad idea to rob thief x'”, rather than (the presumably intended) “to inform those thieves not to rob the group members”.

    Then I started doubting myself. Consider the sentence fragment “who(m) it was a bad idea to rob”; as I remember from my linguistics courses, this is secretly the complete sentence “it was a bad idea to rob who(m)”, but spooky wh-movement and the fact that it’s actually a subordinate clause cause it to take the form that we actually write. The “who(m)” is in object position in this sentence, so it needs dative case, and should *always* be “whom”.

    Wait, no, that’s definitely wrong. Otherwise it would be impossible to distinguish the two meanings Scott may or may not be conflating: is it a bad idea to rob the group members, or the robbers?

    This leads me to derive a rule that anyone who cares probably already knows: the relative pronoun takes the case of its referent, not the case of its position in the relative clause. The two options parse as

    inform (thieves whom it was a bad idea to rob)

    i.e. the verb “inform” has only one object, in this case the people being informed; and

    inform (thieves) (who it was a bad idea to rob)

    i.e. the verb “inform” has two objects, both the receiver of the information and the information they’re receiving.

    This reasoning feels right to me, because now that I’ve done it I can’t look at the sentence any other way.

    …um, also, I liked the book review.

    • Nick says:

      This leads me to derive a rule that anyone who cares probably already knows: the relative pronoun takes the case of its referent, not the case of its position in the relative clause.

      Nope, you’ve actually got it entirely backwards. Consider less perverse examples:
      1) The girl whom I loved is dead.
      2) I’ll pay back whoever did it to her.
      (Thematically appropriate for the post. 😀 )
      In 1, the referent of “whom” is “the girl,” which is obviously the subject of the sentence, but the relative is in the objective* case because it is the direct object of “loved,” the verb in the relative clause “whom I loved.” In 2, meanwhile, the reference of “whoever” is the implied direct object of “pay back,” which would obviously be in the objective case, but the relative is in the subjective*, because it is the subject of the verb “did,” the verb in the relative clause “did it to her.” So, Scott’s sentence is correct; “whom” should be in the objective, because it is the direct object of “rob.”

      This is not actually a problem for the reason you suggest, because context sorts it out anyway (why would thieves be the ones being robbed?). If the context were much harder to parse, though, the alternative is to use a demonstrative with the relative, i.e. “Group members would publish their names in the newspaper to help inform thieves those whom it was a bad idea to rob.” “Of those” or “about those” might be even better. Notice we can do the same with the sentences above; we can say “She whom I loved, the girl, is dead” or “I’ll pay back him who did this to her.” Notice also that the demonstrative does agree with the referent of the relative. Importantly, though, the referent of “whom” in the original sentence is not, technically, the group members. It’s actually another object of “inform.” Compare “I informed her the verdict of the case,” where “verdict” is playing the same role of my suggested “those” above.

      *I hate these terms, but I haven’t come across any better ones.

      • Nick says:

        A few corrections, because I had to run to catch the bus while I was still working on this:
        the verb in the relative clause “whoever did it to her.”
        “I informed her the verdict of the case” should really be “I informed her of or about the verdict of the case.” Likewise, I should be recommending “of those” or “about those” above more strongly; just “those” is not very grammatical. Contrast “told” where the direct object would be “the verdict” or “those,” while the indirect object would be “her” or “the robbers.”

        And to clarify one more thing: while the referent of “whom” is not “Group members” but rather the implied “those,” “those is a demonstrative pronoun whose antecedent is “Group members.”

  41. The Nybbler says:

    You can’t override existing laws – you’ll still have to pay taxes, and you can’t set up a bomb-making factory in your backyard. But you can add as many new laws as you want, enforced by threat of ostracism from your community, plus any other clever commitment mechanisms you can think of.

    This is why atomization is so great. Additional communities can be more restrictive but not less. For those of us who don’t get the benefits, at least with atomization we can leave behind the obligations.

  42. vV_Vv says:

    The Amish congregation courts system is not a complete legal system since it only adjudicates religious matters. If there is a theft or a murder in an Amish community, it will reported to the cops.

    I suppose that the Gypsies report murder, but deal with theft and most other stuff internally. So Friedman’s best examples of semi-privatized legal systems are the Gypsies, some medieval Viking outcasts living in the middle of nowhere, and the Somali. Looking at the outcomes of such societies makes for an excellent argument for a state-run legal system.

    One little-admitted but much-worried-about justification for mass incarceration in our society is the concern that some people are just so naturally violent that, left in the outside world, they would offend again and again until they died. The societies in this book didn’t seem to worry about this. If someone killed, their family would give up the relevant number of camels, and then everyone would be on their way. As far as I can tell, the Amish have no idea what to do about any crime more dire than using a telephone. Nobody used anything at all like incarceration. 18th century England occasionally sent prisoners somewhere horrible like America, but once the colonies revolted they experimented with jails, found them too expensive, and just sort of flailed around punishment-less until they finally discovered Australia.

    No. Before mass incarceration became financially feasible, the naturally violent people were just hanged, or declared outlaws and summarily killed by private enforcers as in medieval Iceland or the American Old West. There were only so many camels that you would be willing to pay to save your crazy uncle’s ass yet another time. And yes, there were probably fewer naturally violent people in such societies than ours because they were being actively eliminated.

    There’s a lot of concern about police brutality, police racism, police failure-to-actually-control crime, et cetera. A few far-leftists have flirted with the idea of abolishing police, and the only way I can make sense of this is by analogy to something like Somali or Icelandic law.

    Abolishing the police seems like a reasonable course of action, if your goal is turning your society into Somalia 2.0.

    These were genuine community-based non-hierarchical legal systems. And, for the place and the time, they seem to have worked really well (Somaliland, which uses traditional Somali law, is doing way better than Somalia proper, whose law system is somewhat westernized).

    Nope, it still sucks. And btw it also has a “westernized” legal system, where by “westernized” I suppose you mean state-run (as if China didn’t have it since forever), it is just incredibly inefficient and corrupt, which creates the market for competing private courts and enforcers. They persist not because they are “traditional” or they are in anyway better to a properly run public legal system, but because they are better than a crappy one.

  43. David Friedman is on very solid ground when he is talking about these legal systems in an historical context. These things absolutely did exist and did work more or less how he describes them as working.

    However, he is on far-shakier ground when he and his readers try to speculate how these legal systems might work in the context of modern, industrialized countries.

    They take it as a given that, in the modern context (just as in the medieval/modern underdeveloped country context), there will be some reflective equilibrium around the idea of protecting private property rights, even if those rights happen to end up being enforced by an archipelago of private mercenaries, blood-feuds, communal courts, etc.

    In my opinion, David Friedman has not fully assimilated the lessons of the French Revolution (in particular, the “Convention” phase from 1792-1794), the fate of the liberal revolutions of 1848, the 1917 February Revolution in Russia, the Chinese Revolution of 1911 & subsequent Civil War.

    The lesson I am thinking of is that liberal revolutions are not possible any more (with the weird exception of the anti-communist “color” revolutions of 1989-1991 in the former Soviet bloc). I don’t know, maaaaybe we have entered into a new historical phase since the Fall of the Soviet Union, and liberal revolutions are now possible again. But for the most part, ever since 1789 it has not been possible for liberals to radically weaken the power of the state and still maintain the protection of private property rights. In each instance (and here I am making a purely descriptive claim and reserving judgment on the matter), the initial liberal revolution was hijacked by proto-socialist or socialist elements hell-bent on violating private property rights. First the sans-culottes, then the June Days in Paris, then the Bolsheviks and Maoists, etc.

    It’s amusing to see liberals rail against the state, or devise ways of weakening the state, when the fact of the matter is that the state is actually their most-needed friend, despite warts and all. Liberals have to re-learn this every time they try to radically weaken the power of the modern state, only to unleash anti-capitalist forces that then compel the liberals to scramble back into the arms of authoritarians who at least understand how to protect private property, gosh-darnit!

    Most sober-headed liberals who actually bear the responsibility of governing in the highest positions of power cannot afford to entertain these utopian-liberal fancies, and they know it. They see that Otto von Bismarck was on their side all along—that what they cherish most, when push comes to shove (private property), will not be most effectively protected by an archipelago of self-governing anarcho-capitalist utopias, but by blood and iron! They reluctantly recognize that weakening and decentralizing the power of the modern state is irresponsible and detrimental to private property in the modern context. Yeah, it might have worked in Medieval Iceland. But good luck protecting investments abroad with your archipelago communities, with your scattered mercenary armies and private security forces!

    Those who forget this lesson will end up making themselves look like fools and hypocrites as they are compelled by events to scramble back into the arms of even the most despotic governments, revealing their true priorities when it comes to political liberties vs. private property über alles.

    But go ahead…be my guest. Radically weaken the state. Have another go at it. Do our work for us (and by “us,” I mean revolutionary leftists). See how it works out for you…

    • To follow-up on my comment, I want to talk a little bit more about the anti-communist “revolutions” of 1989. They are definitely a fly in the ointment of my thesis that liberal revolutions are no longer possible or safe for liberals to instigate, lest things get out of their control.

      What’s so perplexing about the 1989 anti-communist “revolutions” is not that there were revolutions in the first place (lord knows that even most leftists were not satisfied with those systems and would have welcomed some sort of purging of the bureaucracies). What is perplexing is the fact that the revolutions did not aim for some improved version of “socialism with a human face” as earlier attempted revolutions in the Eastern bloc had done. Here was an example of a temporary power vacuum, plus a working class that was large, concentrated, armed with (semi-)advanced means of production, and even, thanks to official state policy(!), schooled in at least some version of Marxism (if perhaps an unconvincing revisionist variant that apologized or was twisted to rationalize whatever the state was doing). Even if the official state version was imperfect, at least some semblance of Marxists ideas was on workers’ mental radar. At least it was a foundation for further interest, development, clarification, study, action, etc. In all, this was the sort of opportunity that earlier revolutionaries would have salivated at the prospect of….

      And yet, what did we find as soon as the color revolutions began? This should have been a repeat of 1917, except easier. Whereas in 1917 only a smidgen of workers were familiar with Marxist ideas, now the outlines of those ideas were commonplace. Whereas in 1917 most of these countries were predominantly rural and agricultural, now they had a solid industrial base and large-ish proletariats. It should have been a piece of cake in 1989 to topple the liberal provisional governments with ease and advance a specifically working-class agenda.

      But no, we witnessed instead a working-class that was complacent, that did not see itself as a class with specific class interests, and that did not use the temporary power vacuum to self-consciously advance its own interests as a class (whether that would have looked to workers like some sort of Trotskyism, anarcho-syndicalism, council-communism, market socialism, or even outright capitalism). It is significant that the restoration of capitalism was not promoted as a means of promoting perceived class interests. Not only did workers reject the idea that socialism happened to advance their class interests at that particular moment (that would actually be an understandable line, as it accords with the Menshevik line during the Russian Revolution and even the Bolshevik line during NEP). It’s that workers did not even think in terms of class interests at all (whether those interests would be advanced by socialism or capitalism).

      Why did Eastern European workers not fight to defend the Soviet bloc? Maybe it was inhuman and corrupt. OK, but why did they not, at the very least, fight for some sort of socialism? Maybe they had lost confidence in its practicality. OK, but why did they not, at the very very least, fight as a self-conscious class, if even for the restoration of capitalism (if they happened to judge that as in their class interests at that point)? It seems that workers in Eastern Europe had ceased even thinking in terms of class interests—the very fundamentals of Marxism.

      The only case I happen to know very much about is Poland. I know that Solidarnosc in Poland started out as a self-conscious workers’ movement (with ambiguous aims that at times included the aspiration for some sort of “real, uncorrupted socialism,”) that became neutered during the military dictatorship from 1982 onwards into a mere political party with reformist aims and a cross-class “national-interest” mentality. I still don’t have a satisfactory explanation for how that happened, and it bugs me….

      • herbert herberson says:

        I’m not sure I see the surprise. A society that has more-or-less eliminated a problem is always apt to forget that the problem existed in the first place.

      • The Nybbler says:

        I think you fail to consider how much the Soviet bloc sucked and how much it tainted (rightly as I would say, or wrongly as you might say) the idea of socialism.

      • millericksamuel says:

        I know that in some places communism was identified with Russian power and the Revolution was thus partly nationalistic. Maybe that has something to do with it. And of course in East Germany the presence of west Germany probably helped. Overall though I suspect that class struggle was simply seen as being less important than better living standards that were offered by the west. Why do you think that class consciousness is more natural than national consciousness under the circumstances?

      • andagain says:

        It seems that workers in Eastern Europe had ceased even thinking in terms of class interests

        Why wouldn’t they? They had the same goals as every other class: to turn their corner of Eastern Europe into a carbon copy of Western Europe.

      • CEOUNICOM says:

        “Socialist still doesn’t understand why individuals are more interested in personal freedom than their ‘class interests’, despite 100 years of evidence; Film @ 11”

        • From a socialist point of view, class interests are the key to personal freedom. I have always objected to capitalism because it interferes with my personal freedom, as I see it, not despite the fact that it offers personal freedom. It’s not a question of, “Hmmm, socialism offers me nice things, but capitalism offers me personal freedom. Eh, I guess I’ll take the nice things as a worthwhile tradeoff.”

          I often see this strawman version of socialists bandied about, as if we all go around either:
          A. wanting to be some sort of dehumanized communist worker-bee in some Chairman Yang-like dystopia in which we get to experience a boot stomping on our face forever, or…
          B. just dying to be the ones to do the boot stomping.

          Personally, I hate being an authority figure. Substitute teaching was awful, having to enforce rules that I didn’t believe in and that constrained children’s spontaneous interests and activities. I have always been sympathetic to the anarchist flavor of the workers’ movement, although more and more I see some glaring flaws in how moralistic and unsophisticated its analysis of capitalism typically is.

          Now, you can argue that our system will, in fact, always and inevitably bring about the boot stomping on a human face forever rather than personal freedom, and if you speak to me on that level, I’ll at least consider your argument, because I am very much interested in NOT having my face stomped on forever, and the last thing I would want to do is participate in a revolution that devours me and other children/”Old Bolsheviks” of that same revolution like the Soviet Union under Stalinism did.

          But if you portray socialists as consciously sacrificing personal freedom for various nice things, then you are not doing a very good job of passing the Ideological Turing Test or speaking to our true concerns. And I think I speak even for most revolutionary leftists—even most Stalinists and Maoists. They might not cherish the same types of freedoms (for example, they think democratic, multi-party elections are hollow, unnecessary, “bourgeois” freedoms, which I disagree with), but they see themselves as fighting for their own version of “freedom” regardless.

          Although I guess that’s not saying much, since even Nazi Germans envisioned themselves as fighting for “freedom from the oppression of International Jewelry” [with Jewelry purposefully mis-spelled here so as to avoid what I suspect is a filter on the comments section meant to screen out certain topics…]

          • CEOUNICOM says:

            “”Now, you can argue that our system will, in fact, always and inevitably bring about the boot stomping on a human face forever rather than personal freedom””

            I wouldn’t think that would need to be argued, since history has already made that point self-evident.

          • CEOUNICOM says:

            I have always objected to capitalism because it interferes with my personal freedom

            Which ‘freedom’, specifically, does it interfere with? Your ‘freedom’ to take people’s stuff at the point of a gun?

            i can only assume you’ll advance some claim to positive-rights now, which have nothing to do with liberty.

          • Paul Zrimsek says:

            i can only assume you’ll advance some claim to positive-rights now, which have nothing to do with liberty.

            [Epistemic status: Overconfident to the point of self-parody.]

          • Keep in mind that the question of what freedoms are practically possible is historically contingent on the material development of society at any given time. So, I don’t expect the impossible. If society is not developed enough yet for full communism, then I don’t expect to have the freedom to do and consume whatever I want.

            I do, at the very least, expect freedom from being drafted to fight for capitalist interests overseas that do not benefit me one bit, and freedom from exploitation, which simply means being rewarded according to my labor rather than my labor-power. That could either be satisfied by some sort of labor voucher plan similar to what Marx proposed in the Critique of the Gotha Program, or by my ideas on production for use.

          • Civilis says:

            I do, at the very least, expect freedom from being drafted to fight for capitalist interests overseas that do not benefit me one bit, and freedom from exploitation, which simply means being rewarded according to my labor rather than my labor-power. That could either be satisfied by some sort of labor voucher plan similar to what Marx proposed in the Critique of the Gotha Program, or by my ideas on production for use.

            Your critique of the draft is just as valid if you replace ‘capitalist’ with any other word or remove it entirely, so the complaint has nothing to do with capitalism.

            You are also free to be rewarded according to how you value your labor if you can find someone that’s willing to do so; that’s the nature of free exchange. Either side in the exchange being unable to freely value either offer in the transaction is functionally exploitation. Part of the problem is that the dividing lines between worker and capitalist (and hence labor and capital) are a lot fuzzier than you seem to admit. You yourself notice this problem when you see various groups not acting in your perception of what should be their class interest, and this is because the classes don’t actually exist except as broad generalizations.

          • My complaint about the possible draft very much has something to do with capitalism because capitalism is the primary ultimate (not proximate) cause of most wars in the modern world. That’s a descriptive claim that you can dispute, however.

            And yes, the Soviet Union participated in wars. And on the meta-level, the two sides are symmetrical. But on the object-level, it’s one thing to be fighting for profits that will not benefit me, and another thing to be fighting for socialism. For example, the Soviet Afghan war? For a noble cause…trying to prop up a secular, progressive regime. The U.S. participation in the Afghan war? Reactionary. A negative force for human advancement. In my book, being drafted for one is completely different than being drafted for the other.

            As for selling my labor, I cannot do that without a means of production. And unless I have state-of-the-art means of production, my individual concrete labor will count as less abstract socially-necessary labor, and instead of being exploited as a worker, I will be exploited as a petty-capitalist by larger capitals. Volume three explains how capitals that are above-average in organic composition (capital intensity) exploit smaller capitals by generating a smaller portion of the pool of global surplus value, and yet still obtaining surplus value from that pool on average according to the average world rate of profit. So, to truly exchange my labor in a non-exploitative way, I would need to be equipped with a capital intensity that is at least an average for the world market.

            As for my confusion, it concerns why workers don’t recognize their class interests. I am not confused by the objective dividing lines between workers and capitalists, which absolutely do exist regardless of whether people notice them or not.

          • Standing in the Shadows says:

            @citizencokane I keep re-reading your posts, parsing them closer and closer, and while your sentences are grammatically correct, I can’t make sense of them at all. For now, I will accept that’s on me, but, could you clarify something?

            What, in the concrete and specifically, do want you to be able to do, that “capitalism” is currently oppressing you such that you are not being permitted to do it?

          • Civilis says:

            My complaint about the possible draft very much has something to do with capitalism because capitalism is the primary ultimate (not proximate) cause of most wars in the modern world. That’s a descriptive claim that you can dispute, however.

            And yes, the Soviet Union participated in wars. And on the meta-level, the two sides are symmetrical. But on the object-level, it’s one thing to be fighting for profits that will not benefit me, and another thing to be fighting for socialism. For example, the Soviet Afghan war? For a noble cause…trying to prop up a secular, progressive regime. The U.S. participation in the Afghan war? Reactionary. A negative force for human advancement. In my book, being drafted for one is completely different than being drafted for the other.

            If the cause is noble, you wouldn’t need to be drafted in the first place. You’d decide that the risk of dying outweighed the risks from your country losing the war and choose to volunteer, to freely trade your time, your short-term freedom and the risk that you could lose your life in return for a better future. That the Soviet invasion of Afghanistan was conducted by conscripts while the American-led international intervention was conducted largely by volunteers speaks volumes. Voluntary exchange works better than compulsion in any human interaction.

            As for my confusion, it concerns why workers don’t recognize their class interests. I am not confused by the objective dividing lines between workers and capitalists, which absolutely do exist regardless of whether people notice them or not.

            You’re spending a lot of time on theoretical constructs that don’t map to the real world nearly as well as conventional economic theory. What makes you so sure that the distinction between ‘workers’ and ‘capitalists’ isn’t entirely a matter of only looking through things through an outdated class-based lens, especially when in practice, ‘workers’ and ‘capitalists’ behave the same? Why do you think their class-based interests are more central to their being than national, cultural, religious or other interests?

            That’s one of the points of Scott’s article; these alternate legal systems were viable in situations when nationality wasn’t the central focus of the legal system, and religious or cultural bodies could hold that position. Thinking that just because class was a defining feature of life in the late nineteenth and early twentieth century doesn’t mean that it will always be that way, and based on the evidence you presented, it certainly doesn’t seem to be the case today.

          • Re: being drafted to fight for the Soviet Union…let’s not romanticize what it would have been like. Culturally, the Soviet army was terrible. Lower ranks were treated like shit. I won’t pretend that I would volunteer to experience that at the drop of a hat.

            But if I have a choice between being drafted to fight for the Soviet Union or America, give me the Soviet Union any day. At least with the latter I’ll get some long-term benefit out of the mission itself. What does an American draftee or even volunteer really have to fight for? Some misguided ideals, a hefty paycheck, and the protection of American investments.

            The paycheck is just one part of the working class paying the other part via taxes, with the capitalist class “generously” chipping in (as they should, since the missions are mainly done on their behalf!) The net value of America’s military adventures for the working class as a whole is negative.

          • Mary says:

            At least with the latter I’ll get some long-term benefit out of the mission itself.

            Such as?

    • John Schilling says:

      The lesson I am thinking of is that liberal revolutions are not possible any more (with the weird exception of the anti-communist “color” revolutions of 1989-1991 in the former Soviet bloc). I don’t know, maaaaybe we have entered into a new historical phase since the Fall of the Soviet Union, and liberal revolutions are now possible again. But for the most part, ever since 1789 it has not been possible for liberals to radically weaken the power of the state and still maintain the protection of private property rights.

      There have been a great many successful wars of secession/independence since 1789, some of which have resulted in (classically) liberal states with protection of property rights. Not sure you’d go about measuring, but I’d wager for several reasons that most of these had relatively weaker governments than what had ruled their territory before. So possibly the lesson is that weakening state power is something best done on a small scale rather than by trying to remake a great nation from the ground up.

      Or possibly the lesson is that you’re focusing on a period that comes in the aftermath of building a bunch of Empires rather larger and more powerful than was optimal for most human purposes. Note that your own cited exceptions are a bunch of revolutions aimed at dismantling the much larger and more powerful than optimal Soviet Empire.

      • Civilis says:

        Or possibly the lesson is that you’re focusing on a period that comes in the aftermath of building a bunch of Empires rather larger and more powerful than was optimal for most human purposes. Note that your own cited exceptions are a bunch of revolutions aimed at dismantling the much larger and more powerful than optimal Soviet Empire.

        What constitutes an optimal balance for a nation/state/culture is going to change depending on the technological era and the current state of the world. Prior to the advent of nuclear weapons, states needed to be able to optimize for military industrial capacity, lest they get overwhelmed by a state with a superior military. Bigger states necessarily have more people, more factories, and more raw materials to devote to the war effort. With the advent of nuclear weapons forming an effective defense against invasion by even a larger state, that capability was no longer necessary.

        I’m sure there are more examples; we could look at international trade and scientific developments reducing the need to have certain raw materials in your territory or changes in agricultural outputs, cultural trends and urban planning allowing higher population densities to avoid the need to have more lebensraum for a growing population.

        The problem is that people’s mindsets don’t instantly change to match the change in technology. Russia’s current leadership, like many of the leaders of the Soviet Union before it fell, is caught in the perception that territory is power and safety. China seems to be the same way, in many respects.

    • nimim.k.m. says:

      You mention revolutionary year of 1848, but do not really explain how the events of 1848 fit in your “liberal revolution will develop into anti-private property revolution” framework.

      (Givin it some further thought, it also glances over at least over all the revolutions in Spain and Portugal in past, let’s say, two centuries. Wasn’t fall of the dictatorship in Portugal a liberal revolution and to some extent comparable to fall of Soviet empire?)

      Anyway, as a proposed sociological law, it sounds too simplistic and abstract; it does not explain how the proposed dynamic maps to practical situations on the ground.

      Meanwhile, the society, the economy, and the ideological thoughtsphere all over the world (and in West in particular) has changed quite much. Even if such analysis (liberal revolutions evolve into socialist revolutions) of the 20th century revolutions is correct, it would not be applicable today. Revolutionary leftists are mostly nobodies; the working class exists in barely recognizable form compared to what it was in the early 20th century. In 1917 it did not come up as a surprise to anyone that leftist revolutions and coups and civil wars could be a thing; today even the mere idea sounds a sheer impossibility.

      • Good point about Spain and Portugal coming out of fascism in the 1970s, although the
        “nice” thing about fascism in power is that it tends to destroy class-conscious workers’ movements (it is usually OK with class-collaborationist workers’ movements), so that is one way of “solving” the problem. Ditto with Chile after Pinochet.

        After the bad cop (fascism) has roughed up the suspect a bit, the good cop (liberalism) can come in and get him to cooperate.

    • actinide meta says:

      Anyone whose basic plan is

      1. Destroy all existing institutions
      2. ???
      3. Profit!

      is a dangerous fool, whether they are liberal or socialist or something else, unless, at a minimum, the existing institutions are worse than death. It doesn’t follow that we have to keep all existing institutions unchanged forever. There are other imaginable upgrade plans, like

      1. Create new, better institutions in parallel
      2. Gradually reduce the scope and power of legacy institutions to zero
      3. Profit!

      or even the always radical

      1. Gradually modify existing institutions to be better
      2. Profit!

      • The Nybbler says:

        1. Create new, better institutions in parallel
        2. Gradually reduce the scope and power of legacy institutions to zero
        3. Profit!

        Alas, the old institutions jealously guard their prerogatives and won’t allow the better institutions to be built in parallel.

        1. Gradually modify existing institutions to be better
        2. Profit!

        The long-term forces tend to modify existing institutions to be worse, not better. Institutional memory becomes ossification and bureaucratic complexity. The principal-agent problem becomes greater as agents learn better to exploit their positions. Parasitic rent seekers achieve their concentrated gains simply by always being interested while their hosts aren’t paying much attention to the diffuse losses.

        So your choices are to follow the dangerous fools in their radical and chaotic plan, to try to build new and have the old sweep it away, or to watch helplessly as red tape, corruption, and cost disease accumulate. And thus entropy increases.

        • I find the “Cthulhu swims to the left” idea curious because revolutionary leftists have a mirror-image view of politics. I’ve seen it described as “political blue-shift” or you might call it “Cthulhu swims to the right.” For example,

          In capitalist societies, the political “center of gravity” is on the right…because that’s where the serious money is. “Left” electoral parties are “tugged” in that direction and, over time, respond to that “pull”.

          This can be seen most clearly if you look at “communist” (Leninist) parties in the advanced capitalist countries–in practice, nearly all of them now occupy the same position on the political spectrum as the social democrats did before World War I.

          The social democratic parties, of course, are now all capitalist parties.

          Call it a political “blue shift”.

          • Aapje says:

            @citizencokane

            Both can be true if progressives win on social issues and free trade capitalists win on economic issues.

          • Conrad Honcho says:

            This is why I call the mainstream media “corporate-left” and not “left.” When it comes to leftist idpol/feminism/anti-racism, they are full tilt; all in. But CNN is never going to question the fundamental assumptions of capitalism. This way the corporations that own the media companies get to pay lip service to the left and placate them.

            Upset about income inequality? No, no, get mad about racial income inequality. Mad that evil oppressive capitalist CEOs make 400x what a worker makes? No, no, get mad that more of the evil oppressors aren’t women.

            Perhaps idpol is the opiate of the masses.

          • Civilis says:

            That’s because the labor-capitalist economic spectrum is much less descriptive and cohesive in modern societies than it was a hundred years ago. Your average blue-collar factory worker likely has some savings in the bank if not some investments. His family likely includes a few small business owners. And he’s a member of an increasingly small sector of society. When it comes to white-collar workers, the dividing line between them and capitalists, if it exists, is smaller yet.

            Nationalist-globalist, statist-libertarian, and traditionalist-progressive all make much more coherent political spectra, and none correspond well to the labor-capital axis in current society. (As I’ve mentioned in earlier threads, I’m aggravated by the inability to distinguish between the two definitions of ‘capitalist’, roughly (1) someone that owns capital, and (2) someone that believes the free market is the best economic system. It’s common to be one but not the other. The type 2 capitalists tend to be libertarian and hence cluster to one end of the statist-libertarian political spectrum, but it’s very possible to both own capital and be statist.)

          • dndnrsn says:

            @citizencokane

            You are correct that the “Cthulhu swims left” framing is incorrect or, at least, incomplete. There’s been a significant move to the left on social issues, but not on economic issues (at least if you capitalize The Left). Your average revolutionary 100 years ago wouldn’t be happy.

            On the other hand, it’s hard to frame the movement on economic issues as being towards the laissez-faire right (as Aapje does). There’s a great deal more regulation than there was 100 years ago, a great deal more social welfare spending, and most significantly, a great deal more corporate welfare. It’s also debatable whether big corporate interests really are against regulation in and of itself – the point has been made that a big corporate entity will often be better able to navigate and where necessary circumvent regulation than a smaller competitor.

            I would say that the economic movement has been away from laissez faire capitalism towards crony capitalism, and away from the hope of a serious reorganization of how the class system works, and away from markets, towards market-fuelled social welfare programs. About the latter, if you’re being nice you can say they do a pretty good job of keeping people above water, if you’re not being nice you can say they keep people just above water enough not to rush the captain’s quarters.

            More broadly, the question of what “right” and “left” gets really confused. Are xenophobic nationalistic protectionists advocating a welfare state for the right people more “right wing” than anti-state open-borders ancaps?

            Also, part of what’s going on here is that right-wingers of the sort who say “Cthulhu swims left” also say “politics is downstream of culture” and so don’t care that much that serious leftists are further away from the levers of power – or are outright ignorant that cool-with-corporations identity-politics types aren’t “leftists” in the classic sense. Meanwhile, serious leftists think that politics is downstream from economics, and so the social changes don’t remove the sting of almost all mainstream parties being capitalist now.

          • Kevin C. says:

            @dndnrsn

            aren’t “leftists” in the classic sense.

            I must nitpick here and point out that isn’t the most “classic” sense of “leftist” the sense when the terms “left” and “right” were coined, with reference to seating in the French National Assembly? By that truly classic sense, who (besides fringe reactionaries like me) isn’t a “leftist”?

          • dndnrsn says:

            OK, granted. It’s a fair nit to pick. I’m meaning “leftist” to mean a Marx-influenced, class-focused left-winger. All leftists are left-wingers/on the left, not all left-wingers/people on the left are leftists.

          • If both leftists and libertarians are dissatisfied with the trends in politics (less laissez-faire, but also less anti-capitalist), perhaps that is just a symptom of a shrinking of the Overton Window.

            It used to be that many countries had an overtly anti-capitalist party and an overtly pro-(laissez-faire) capitalist party. One party stood for the interests of workers, while the other stood for the interests of capitalists and petty-capitalists (although neither side would probably be satisfied with this characterization since political parties tend to always claim to be acting in everyone’s universal interests or at least national interests). Think Old Labour and the LibDems.

            But now, almost all mainstream parties are class-collaborationist. They are based on a compromise that is noxious to both extremes: private profit remains in the saddle, but now it has to put up with all sorts of regulations and concessions to workers and dirigisme. Really, if you strip away the military expansionism, authoritarianism, and racism from the Nazis, they would fit in quite well as a modern mainstream party. And if you strip away those things from the Nazis, there’s very little difference between them and FDR’s New Deal.

            But can this be an accident? Have you thought that, maybe, political elites understand something that you don’t, and that this dirigiste class-collaboration is actually in the interest of capitalism’s stability, even if at the cost of some of its efficiency and dynamism?

            Otherwise, do you want to go back to pitched battles between blatantly pro-capitalist and anti-capitalist parties, a la Weimar Germany? Maybe you think the anti-capitalist side is so much weaker now, that you answer yes. But are you sure you haven’t under-estimated that old foe?

          • dndnrsn says:

            Who here said it’s an accident?

          • Civilis says:

            But now, almost all mainstream parties are class-collaborationist. They are based on a compromise that is noxious to both extremes: private profit remains in the saddle, but now it has to put up with all sorts of regulations and concessions to workers and dirigisme. Really, if you strip away the military expansionism, authoritarianism, and racism from the Nazis, they would fit in quite well as a modern mainstream party. And if you strip away those things from the Nazis, there’s very little difference between them and FDR’s New Deal.

            Mussolini had a point when he went about trying to ‘fix’ Socialism by turning its focus from class to nation, and the result was a form of government optimized for national industrial mobilization. There’s a reason that most countries moved in this direction in the build up to the Second World War, as has been pointed out. National Socialism looks remarkably like Soviet (Russian) “International” Socialism, just strip out some of the racism, and it looks very much like Socialism with Chinese Characteristics and Juche, for that matter. Centralized control of industry is good for producing soldiers and tanks.

            The thing is, once the need for a centralized industrial economy went away, some countries were able to step back and remove those controls, which is better for producing what people want. The more controls released, the better off the people tend to be. Meawhile, some countries have tried moving more towards central control (see Venezuela) and the result is corruption and poverty. There’s a reason the libertarian-authoritarian political spectrum is in the present day a lot more relevant a political spectrum than a class-based one or where people sat in the French assembly, and that’s because it does a better job at predicting what a society looks like.

        • actinide meta says:

          Alas, the old institutions jealously guard their prerogatives and won’t allow the better institutions to be built in parallel.

          I think you are anthropomorphizing. Real institutions have complicated and observable incentives that will let some things happen, and not others. This is a challenge, but there’s no reason to think it’s an insurmountable one.

          For example, we have a system of international arbitration on a huge scale, actively supported by states through various treaties and enabling legislation, that looks a lot like one of the things you might need to build ancaptopia. Cruise ships are kind of ancap, and nobody is very anxious to do anything about it. We have private security companies. I’m not saying these are the right steps, or particularly important steps, but they’re evidence against the idea that existing institutions are highly committed to nipping potential future competition in the bud. Similarly, people have built small intentional communities that operate on various communitarian principles, without much interference from states. If someone could figure out how to scale some form of socialism without a lot of violence, they could probably demonstrate it by making one of these big and prosperous!

          Similarly, gradual change does indeed have to fight against various flawed incentives in existing institutions. And yet in fact not all changes over time have been for the worse.

          The “dangerous fool” strategy faces both these sets of problems and more, highly concentrated into a short and chaotic period.

          Your “entropic” model seems to fail to account for the massive improvements in the world in recent centuries.

          • Kevin C. says:

            Similarly, people have built small intentional communities that operate on various communitarian principles, without much interference from states.

            Yes, but as I seem to recall being noted here on an open-thread discussion of “intentional communities,” these seem to always be to the political Left of the states in question. (Can you name a small intentional right-wing community, let alone one that went similarly “without much interference from states”?)

            If someone could figure out how to scale some form of socialism without a lot of violence, they could probably demonstrate it by making one of these big and prosperous!

            But what if someone tried to scale some form of right-wing communalism by “one of these”?

            And yet in fact not all changes over time have been for the worse.

            Not all, certainly; but a significant fraction?

            Your “entropic” model seems to fail to account for the massive improvements in the world in recent centuries.

            And for those who disagree that recent centuries constitute “massive improvements” (like, for just one example, those reactionaries who see the permanent collapse of industrial civilization as a goal to be actively sought in the cause of defeating the left)?

          • actinide meta says:

            And for those who disagree that recent centuries constitute “massive improvements” (like, for just one example, those reactionaries who see the permanent collapse of industrial civilization as a goal to be actively sought in the cause of defeating the left)?

            Well, I guess I think they are nuts! But if being left alone will satisfy them, they can hope instead for a more liberal order that will live and let them live. Which I think could be plausible if they can maintain their reactionary (sub)culture without actual child abuse.

  44. venkyclement says:

    Great read. I would add a section on crime and punishment systems of social primates.

  45. herbert herberson says:

    Tribal criminal justice systems serve as a very developed version of an “archipelagic” legal system. In another comment, I mentioned one issue they have in being forced by US law to rely on US enforcement for major crime and the gap that exists when it comes to medium-tier crimes.

    There’s also a second issue they face that I wanted to break out separately, because I think it’s a systemic reason why an archipelagic system would never be stable: non-tribal members committing crimes against tribal members.

    There are two logical solutions to this issue. One is to rely on the society of which the criminal is a part to enforce its laws against him/her. The problem there is of costs and incentives–it is simply too easy for the outside authority to ignore the crimes. Not only is the victim a nonmember, but the offender is typically someone living on the reservation, so the outside authority doesn’t even have to worry about an unpunished criminal actually living within their community. This option was the one that was used, exclusively, for a long time, and a lot has been written about its failings.

    The other option is to give the archipelagic society (in this case, the tribe) authority over the non-member offender. The US began to explore this option in the last few years under a provision of the Violence Against Women Act. The issue here is the US gov’t was only willing to grant this jurisdiction in cases where the tribe guaranteed (more or less) the same level of constitutional criminal defense rights they would enjoy in a US court. This, I think, is natural and expected–individuals in control of their community are not apt to cede authority over their freedom to communities in which they have zero say. The ultimate effect, particularly when joined together with prestige (the legal systems of a more prosperous society naturally coming off as better and more sophisticated) and training (the most readily available quality legal training coming from regular US law schools means many tribal judges are trained to think in terms of US law, and may have had/have day jobs within it) acts as an extremely strong trend to make tribal courts look and act like Western courts, and there are few if any tribes whose primary* legal systems don’t look very much like the US one

    I think similar effects would act to push any kind of system of anarchist/voluntaryist/libertarian legal systems towards homogynization, and have verifiably done so in the USA. Note, for comparison, how most of the examples given here avoided this issue through geographical isolation or, in the case of Somalia, being the kind of place people don’t really live in unless they have to, and the remainder (the Amish and the Orthodox) are relying on an outside hegemonic system that is substantially limiting their authority.

    * more traditional secondary systems that aren’t particularly influenced by US law are fairly common, but they’re often unused due to the fact that all parties, including offenders, must voluntarily submit to their jurisdiction

    • Kevin C. says:

      There’s also a second issue they face that I wanted to break out separately, because I think it’s a systemic reason why an archipelagic system would never be stable: non-tribal members committing crimes against tribal members.

      That is indeed a big issue. Also, you don’t seem to have mentioned it, but there’s also the issue of the situation where the two groups/systems disagree as to whether the action in question constitutes a crime. We’ve been seeing some of these very dynamics in action locally, with regards to the many issues with law enforcement in the Native villages, particularly concerning activities which outside society sees as crimes but the Natives do not, and where the community thus acts to hinder attempts by the (outsider) authorities to enforce the laws against them. (As it currently stands, the proposal with the most political headway seems to be making the Village Safety Officers who do much of the day-to-day enforcement all local, Native recruits. As many critics have noted, this would in practice lead to the enforcement of Native cultural rules rather than the (outside) laws, which would not help our status as having the highest per-capita violent crime and sexual assault rates of any state.)

  46. ADifferentAnonymous says:

    Fortuitously, Robin Hanson’s latest post proposes a Legal System Very Different From Ours*: http://www.overcomingbias.com/2017/11/villain-markets.html

    Essentially, prediction markets in who’s guilty of wrongdoing.

    * He envisions it running within our existing legal system, but I’m pretty sure the results would be so different as to de facto constitute a LSVDFO

  47. At a considerable tangent … . Many years ago I wrote an article giving my interpretation of Ronald Coase’s work, in particular “The Problem of Social Cost.” Coase’s comment on it to me was the one never understood one’s ideas until someone else explained them to you. I suspected at the time that he did not intend the comment to be taken entirely literally.

    Reading Scott’s summaries of my work sometimes makes me appreciate how Coase felt.

  48. John Schilling says:

    And there’s another perspective where lots of countries have a King, because some guy seized so much power that he can live in a giant palace and order people around all day instead of doing work. And if anyone tries to prevent him from doing that, he can arrange to have that person beheaded.

    But how does he do that, exactly? Excluding the science-fictional cases where the King is a mad scientist with a bunch of Loyal AI Killbots, of course.

    If the king wants to have someone executed, and that someone doesn’t want to be executed, then the king has to give an order to a general who has to give an order to a colonel who has to give an order to a captain who has to give an order to a sergeant who will lead ten soldiers to go drag the condemned to jail, court, or straight to the executioner’s block. That’s a lot of people who can make the King’s power go away.

    If the sergeant decides that he and his ten soldiers are going to openly stand against the king’s tyranny, sure, the King orders a general to send a colonel with an entire regiment from a different chain of command and from far away to come kill the sergeant and his men. But the sergeant and his ten men can stop at the local tavern on the way, drinking and bragging about what they are going to do loudly enough and long enough that gosh, Captain, Mr. condemned wasn’t home when we got there but we’ll sure go looking for him tomorrow if you insist. If the King’s demands for beheading are broadly perceived by sergeants and common soldiers as unjust, then the King’s power to behead won’t really extend beyond the palace walls.

    Probably there will be a different power structure in the hinterlands, one that involves tribal elders exchanging camels and cooperative sergeants getting free drinks at the local tavern.

    And if it is the generals who think the King isn’t up to par, then the King needs to worry. He can probably have two or three loyal generals gang up on one rebellious one, but span of command issues mean it will always be possible for a handful of people to meet in one room and decide that there’s going to be a new king (or note at all) and make it happen in spite of the loyalist holdouts.

    There’s stability from the fact that it (usually) isn’t possible for one general to make this happen, or a lone sergeant for the decentralized version. If it were, well, me being king is always preferable to some other guy being king, so there’s always a civil war or two in progress. Instead, successful rebellion or resistance requires the support of people who aren’t going to be king under the new order any more than they were under the old.

    But that still puts a fairly hard limit on the King’s ability to do whatever he wants by way of his power to have people beheaded: if the right people – and it doesn’t take very many – see an alternate political order that’s better for them even though it still involves their not being King and still having to take orders, offering more than a marginal improvement to justify the cost, then the King’s power goes away even if he does remain a King within the palace walls.

    • Standing in the Shadows says:

      The traditional solution used by unpopular Kings is to have a separate small elite Army with lots of detectives and assassins who’s job it is to keep the regular Generals and Captains fearfully obedient.

      They used to be be called things like “the Kings Hand”, then later “the Secret Police”, “the Ministry of State Security”, and “Political Officers”.

      Of course, this kicks the problem up a level, the King’s power goes as far as he is able to keep his secret police happy. Eventually the secret police will start picking the next King, usually from their own ranks,…

      • Randy M says:

        See Roman Emperor Claudius, among others.

      • John Schilling says:

        Commissars et al are meant to make sure that a general doesn’t get uppity; they generally don’t have anywhere near the power they’d need if the regular generals (plural) decide that it’s time for a change and that the first step is obviously to kill all the commissars.

        Or if they do, then as you note the Head Commissar almost inevitably usurps the throne. But it’s actually hard to make an espionage service that can stop an army by assassinating or intimidating its generals, and most kingdoms (especially the successful ones) settle for having it be one element of a balance-of-power system.

    • Standing in the Shadows says:

      Excluding the science-fictional cases where the King is a mad scientist with a bunch of Loyal AI Killbots

      span of command issues … handful of people to meet in one room … make it happen

      Widespread near ubiquitous surveillance.
      Chinese social graph activity tracking and “citizen scoring”.
      ML systems constantly combing through that surveillance data and social graph data.

      All of the SF I’ve read and all of the think tank serious policy papers I’ve read written by people who even know how to spell the words in those three preceding phrases are still painfully uninformed and intellectually thin as to how powerful any one of those things are, let alone how they can work together and reinforce each other.

      We’re not going to get Brazil. We’re going to get something weirder…

    • carvenvisage says:

      ..And to this day, no king has ever maintained their throne through intimidation or violence?

      Isn’t this basically why crucifiction was invented? Like, I appreciate that people aren’t compelled by magic to obey the king, but there’s this problem that most people don’t like dying, and even if they don’t mind that, they probably don’t want their friends and family dying, themselves tortured, etc.

      • John Schilling says:

        ..And to this day, no king has ever maintained their throne through intimidation or violence?

        Isn’t this basically why crucifiction was invented?

        I would wager you can’t name one king or emperor in all of history who ever personally crucified anyone. Kings who maintained their throne through intimidation or violence, yes, but only with a whole lot of help by people who weren’t being intimidated or violated and decided it was nonetheless a good idea for the King to stay on the throne. Those people are critical to making a monarchy work, are the reasons so many places had and some still have working monarchies rather than some other form of government, and if you gloss over their existence you don’t understand monarchy.

        • carvenvisage says:

          ‘crucifiction’ being a metonym for the shockingly determined ways to compel obedience or subjugation that humans have come up with and practiced throughout history.

          If there can be a master class and a slave class, why not a king class a lord class and a serf class? If the threat of crucifiction can keep people slaves, presumably the threat of prison can make people pay taxes, even if not to a rightful, useful or philosopher king.

          _

          In any case, I took scott to be talking about leaders more generally. A king a khan an emperor a fuhrer, whatever. A boss, even. If you mean kings specifically, then I misunderstood you (and/or scott).

          But then again, what’s the significance of securing support/tacit permission of certain parties as part o the route to power? It doesn’t quite fit the word ‘seize, I suppose, but I think I think the main point was ‘gathered up all the power’, and ‘seize’ wasn’t being intended as a precise delimiter of how the king specifically gathers up all the power along the way to acquiring a potentially self sustaining critical mass.

          • John Schilling says:

            ‘crucifiction’ being a metonym for the shockingly determined ways to compel obedience or subjugation that humans have come up with and practiced throughout history.

            You’re missing my point. How many kings have ever done any of these things by their own hand? Aside from Ned Stark for reasons of honor (and see where that got him), how many kings have ever personally executed anyone? How many kings have ever dragged someone off to a prison cell and locked the door?

            If it’s the threat of being crucified, executed, or imprisoned that keeps the “not king” class in line, it’s the threat of being crucified, executed, or imprisoned by other members of that class that’s doing it. If you want to dismiss all that as being some pedantic “precise delimiter” of the king’s power, you might as well discuss architecture while dismissing mere foundations as beneath you.

          • carvenvisage says:

            The original (exaggerated) dichotomy:

            Like, there’s a perspective where lots of countries have a King, because societies that have a single central nexus to their coordination structure are able to coordinate better than ones that don’t, and having them rule for life promotes long-term thinking, and them be hereditary provides a clear Schelling Point for secession disputes that prevents civil war and cleverly ensures that the previous ruler is incentivized to promote the peaceful transfer of power to the next one, and this is why constitutional monarchies have slightly higher yearly GDP growth than other forms of government.

            And there’s another perspective where lots of countries have a King, because some guy seized so much power that he can live in a giant palace and order people around all day instead of doing work. And if anyone tries to prevent him from doing that, he can arrange to have that person beheaded.

            I think it’s fairly clear that the intended contrast is between kings as -very roughly, necesarry elements in a properly functioning societal machine, and as guys in funny hats who it so happens can have your head chopped off, thanks to having all of teh power.

            And note that it does says “arrange”, to have people beheaded, -not ‘personally behead like ned stark.’

            So I simply don’t see where the conflict between your original reply and the original post is. -It’s presumably implicit here that ‘power’ includes the support of the headsman, the court, the military, -that it’s political.

            I mean, I never for one instant took Scott to be talking about the dragonball-z type power to personally descend upon your enemies and annihalite them in a blast of angelic cleansing light, leaving the landscape scarred for miles behind them, or anything like that.

            -The power to “have someone beheaded” suggests a rather more mundane type of power, very much in line with the distinctions you’re drawing.

            If you want to dismiss all that as being some pedantic “precise delimiter” of the king’s power, you might as well discuss architecture while dismissing mere foundations as beneath you.

            I’m not trying to discuss how kings gain power, I don’t think that’s the topic. I’m trying to discuss -roughly, whether Scott’s original dichotomy betrayed a certain naivety about the nature of the power a king has or can have.

            I take you to be saying that king’s don’t “seize” power persay (-I know that it’s supposed to be per se, but I like how persay also happens to work), -they have to seduce it, like a woman.. -or something, I didn’t quite follow how securing allies before, during, and after you make your move(s), is out of line with ‘seizing’ power.

            And I’m saying ‘seize’ was probably an incidental and/or decorative word choice, and the point is kings as dudes with all the power vs kings as appointed or emergent agents of the divine plan natural order.

            _
            _

            “There’s a certain view of modern high architecture where it’s the height of genius, and another where it’s mostly fashionable architechts patting each other on the back”. Your reply sounds to me like it’s saying “there is a genius to backpatting’. Maybe there is, but that wasn’t the point of the exageratted dichotomy, just an incidental word choice. (In this case, I would have meant architechtural genius, not genius more broadly.)

            Your point seems to be that kings don’t *seize* power per say, in that they don’t *personally* keep millions of people in check by the illustrious candescence of their godlike personal powers of annihilation, and consequently have to rely on other people as a form of power.

            -And the composition of that political power is interesting, and worthwhile of a comment, but I’m pretty sure Scott didn’t mean “seize” quite so extensively, so seems more like an addition than a refutation.

            _

            But perhaps I am still missing your point.

      • Paul Zrimsek says:

        In “crucifiction”, is a character who’s a transparent stand-in for the author called a Mary Magdalene?

        • carvenvisage says:

          perhaps a peter perfect? That whole last minute doubting thing strikes me as a heavy handed pandering swerve to avoid the trope.

          (Is it still pandering, if you’re aiming at an audience of trope addled-masses two thousand years later? -Or just aiming to stand the test of time?)

    • ADifferentAnonymous says:

      This is kind of a just-so story, and I’m not sure what you’re trying to achieve with it. If you mean these things are all plausible mechanisms by which a self-interested king will be forced to act at least somewhat in the public interest, then I 100% agree. But to me the most natural reading is that these factors impose a global limit on how bad any king can ever be (for long), and the idea of a long-reigning bad kleptocratic monarchy is just implausible, and you just can’t reliably demonstrate that sort of thing this way. A third reading is that you’re saying “It doesn’t logically have to work out this way, but my gut says it usually would.” In which case I’ll duly note that John Schilling’s gut says that.

      • John Schilling says:

        But to me the most natural reading is that these factors impose a global limit on how bad any king can ever be (for long)

        You’re starting from the presumption that there is a king and he has at least nominal power over life and death. I, and I think Scott in his original question, am going back a step and asking why there’s a king in the first place and why he is more than just the guy who is first among equals at the war council. For that to happen, a whole lot of people who aren’t going to be king have to nonetheless go out of their way to make the country a kingdom, to make Bob the First specifically be the king, and make it the sort of kingdom where the King can have people killed. And then, yes, keep it so in every subsequent generation.

        You can’t understand how that happened if you describe it as “some guy seized so much power that he can live in a giant palace and order people around all day instead of doing work”

    • albatross11 says:

      My impression is that this situation is stable until it looks like the king is dying and the succession isn’t clear. And that one of the main reasons why people often supported the principles of monarchy (powers of the king, the king’s eldest son inherits the throne, etc.) was because the alternative to a clear succession was a civil war to decide which of the king’s bastards would end up on the throne.

    • Wrong Species says:

      I think the usual way to take complete power is by being very charismatic and/or being considered a strong warrior that is very respected. You gain some followers who are extremely loyal to you and then it builds up from there. Once it’s known that the King commands respect, you don’t want to be the lone individual who stands against him.

      • Standing in the Shadows says:

        The creation of a King of the lake people in the 2nd and 3rd Hobbit movie was an interesting illustration of that process. In the aftermath of that battle, he was King. There was no crown, no robes, no coronation, no complex long titles, no fancy chair, no standardized protocols of obliqueness, no “Your Most Royal Highness”. But he was the King, and everyone knew it.

      • John Schilling says:

        The “builds up from there” stage obscures steps which give you a mix of people who aren’t lone individuals, command a fair degree of respect themselves, and might well want to stand against the king.

        Often what these people end up creating is just another king, or something worse than a king. But they generally don’t mean it to end that way, and you don’t get a kingdom or a king in the first place unless these people, in addition to respecting the proto-king, agree that a kingdom is worth having and they aren’t going to have to come back and tear it down for a hopefully-better replacement. That shapes and limits the nature of kingdoms that can be formed, as well as the ones which can endure.

      • SamChevre says:

        For a good example of the “becoming a king” process, look at the career of Odoacer, the first King of Italy–who fought almost everywhere in the disintegrating western Empire, from Britain to Austria, at the head of armies that seem to have been recruited from whoever happened to be around at the time.

  49. Nornagest says:

    These comments are a mess.

  50. A correspondent points out that what Scott linked to was the draft of the book linked to the web page for the seminar it came out of, which is some years out of date. The current draft is linked to the main page of my site.

  51. Alex Zavoluk says:

    You mention “Ireland” once or twice, and “Iceland” a lot. Was that intentional, or did you actually mean Iceland in those cases?

  52. Matthias says:

    Not specifically inspired by this (although there’s some overlap in the corners), but I very much think you ( = both Scott and the putative educated layperson reading this) would like Norbert Elias’ The Civilizing Process, if you haven’t read it already.

    And also, the cultural evolution idea is really optimistic. I’ve been trying to read a bit more about Marxism and Postmodernism lately, and they would be pretty skeptical about analyzing social systems by asking “What large-scale problem of human interaction is this system the exactly optimal solution for?”

    Like, there’s a perspective where lots of countries have a King, because societies that have a single central nexus to their coordination structure are able to coordinate better than ones that don’t, and having them rule for life promotes long-term thinking, and them be hereditary provides a clear Schelling Point for secession disputes that prevents civil war and cleverly ensures that the previous ruler is incentivized to promote the peaceful transfer of power to the next one, and this is why constitutional monarchies have slightly higher yearly GDP growth than other forms of government.

    The classical historical materialist position is arguably a bit Panglossian in this sense – not just because it’s presumed that communism wins in the end, but that this is the result of those systems being adopted that produce more surplus over time (whether that surplus is thrown into the consumption of elites, or their fighting each other/keeping down the masses, or getting reinvested in production.) This is the “primacy of the forces of production” – social arrangements either allow technology to produce more wealth (and thus spread their methods abroad, whether through conquest or emulation) or stand in the way and eventually get outcompeted by those that do. G.A. Cohen’s Karl Marx’s Theory of History: A Defense is a clear, if admittedly not very lively, elucidation of this position, esp. how it relates to the elites question.

    (Marxologists, and many contemporary Marxists, might object that this is more “The Second International’s Theory of History,” but whatever, that’s interesting in its own right.)

  53. andagain says:

    Once a trial was underway, prosecutors would usually cut a deal: the offender would bribe the prosecutor with a certain amount, and the prosecutor would drop the case.

    That was not bribery: the prosecutor was under no obligation to prosecute the case. It would have been bribery if the accused had paid off the jury, witnesses, or judge.

    Speaking of which: if you could find a few people willing to lie under oath, this could be a great way to extort money from someone. Indeed, I have been told that everyone in America commits a technical felony every few days: if 18th century England was like that you would be able to extort money from people even with honest judges, juries and witnesses.

    • Jiro says:

      It is bribery, for the same reason that even though a politician has no obligation to support a bill, paying him not to support the bill is bribery.

    • publiusvarinius says:

      the prosecutor was under no obligation to prosecute the case

      Bribery applies to more than just not fulfilling obligations. Offering or giving any item of value in exchange for them not exercising their statutory rights is a textbook case of bribery.

    • Protagoras says:

      On your second point, Athens also used a system of prosecution by private citizens. Apparently extorting people with threats of frivolous prosecutions was such a common phenomenon that they invented a word for people who specialized in the practice.

  54. googolplexbyte says:

    What about those of us without families?

    Do we get free reign?

  55. publiusvarinius says:

    One little-admitted but much-worried-about justification for mass incarceration in our society is the concern that some people are just so naturally violent that, left in the outside world, they would offend again and again until they died. The societies in this book didn’t seem to worry about this.

    That’s explained by the small population of these tribal groups: these ultra-violent outliers will never be observed if all you have is a small population.

    Similar outliers affect product warning labels: the probability that a member of your population is stupid enough to dry a cat in the microwave is quite small. The probability that someone is both stupid enough to do it and cocky enough to sue the the manufacturer is even smaller. However, one such outlier can cause enough damage to change the behavior of the whole culture, regardless of population size.

    • Nornagest says:

      I don’t think that really flies. This is mass incarceration we’re talking about; the US imprisons something like 0.7% of its population. Now, not all of those guys are going to be incorrigible criminals, but on the other hand not all incorrigible criminals are going to be in jail at any given time; if we figure that it averages out, that’s equivalent to about one guy in each Dunbar-sized tribal group. And a lot of the cultures we’re talking about regularly dealt with populations much larger than Dunbar’s number.

      The argument’s stronger for product warning labels, though.

  56. MartMart says:

    “One obvious objection to a system of private enforcement is that the poor (or weak) would be defenseless. The Icelandic system dealt with this problem by giving the victim a property right – the right to be reimbursed by the criminal – and making that right transferable. The victim could turn over his case to someone else, either gratis or in return for a consideration. A man who did not have sufficient resources to prosecute a case or enforce a verdict could sell it to another who did and who expected to make a profit in both money and reputation by winning the case and collecting the fine. This meant that an attack on even the poorest victim could lead to eventual punishment”
    Doesn’t that more or less describe our class action system?

    • Nornagest says:

      At least nominally, class action is a way of aggregating restitution rights rather than a transfer of them — the settlement’s still payable to the class members. In practice, though, the biggest winners are often the law firms doing the litigating, so I can see a certain family resemblance.

    • actinide meta says:

      I suspect it would (with modern technology and institutions) be much better than our class action system. At present class actions seem to hardly ever benefit the class materially; it turns out to always be fair that the lawyers (who are actually present in the negotiation) get most of the settlement, and that the defendant (who is actually present in the negotiation) gives the class some kind of worthless coupon. And it can be pretty onerous to opt out of a class, because it’s assumed that the only reason to opt out of a class is because you plan to file your own lawsuit, rather than, for example, because you think the suit is unjust. I’m sure someone who knows more about the present system can add more reasons that it sucks.

      With this kind of scheme, you would instead get (probably competing) offers to buy your right to sue in advance, and you could just pick the best offer (or none, if you don’t like the case). The lawyers could then stop pretending that they are acting in anyone’s interest but their own.

      You could also imagine speculators offering to buy, say, all of your rights-to-sue for up to $100 for past years for a fixed cost, without enumerating them. Then they could resell rights to various class actions. This would help to minimize transaction costs for the most diffuse harms, while still (through competition) actually benefiting the class members.

      • MartMart says:

        It could well be a nice system. I fear, somewhat, the sort of exotic gaming this will unleash. If rights to sue can be sold, that means they can be traded on the open market. That will give birth to right to sue futures, and other exotic derivatives. It would be incredibly difficult to keep such a system transparent. On the flip side, somewhere in those market there is a way to reasonably price risk.
        However, I think the biggest obstacles is the lack of legitimacy in the eyes of the general population. Someone who bought the right to sue won’t be seen as a legitimate victim, and so his claim to compensation would be pretty tenuous.
        Which is all a long way of saying “But how do we get from here to there?”

        • actinide meta says:

          Someone who bought the right to sue won’t be seen as a legitimate victim, and so his claim to compensation would be pretty tenuous.

          If class action lawyers can get settlements approved today where (a) they get tens of millions, and (b) class members get a coupon for a few dollars’ worth of the supposedly defective product, wouldn’t they be able to do the same with the class members already efficiently compensated and out of the picture?

          As for how to get there, I don’t actually know for sure if this is illegal today or not. Maybe all that’s needed is a marketplace?

  57. Doug S. says:

    When all else fails, feuding against a family can actually be pretty effective. I’ve said that if you really wanted to end suicide terrorism by organized groups like Hamas and you didn’t have any ethics, all you have to do is execute the families of suicide terrorists. Someone willing to sacrifice themselves isn’t necessarily willing to sacrifice their families, and their families aren’t necessarily willing to let one fanatic go and get them all killed.

    Julius Ceasar, Stalin, and Saddam Hussein would all know how the Israeli-Palestinian conflict could have been solved decades ago… not that anyone would want to put their solution into practice, though!

    • Matt M says:

      This is estimated to be a significant factor in how the Kim family retains power in North Korea. I’ve heard that the families of defectors are almost always sent to cruel prison camps for life.

      • Conrad Honcho says:

        Not just the family of the defector. Three generations of their family:

        During the mourning period of Kim Jong-il ‘s death on December 17, 2011 and the start of Kim Jong-un’s rule, the movements of people were tightened and strictly controlled. This included requiring families that live near the border areas to take turns standing guard, having strong official warnings that three generations of a family would be destroyed if caught defecting, as well as having the defector being executed on-site. The number of North Korean defectors has dramatically decreased as a result.

  58. summer says:

    i’m pretty sure that g*psy is considered a slur (or at least very derogatory) by rromani people? i don’t know if it’s like, the biggest but i would reccomend using rroma/rromani

  59. maybe_slytherin says:

    Scott: if you don’t keep writing posts like this, I will get a bunch of my friends together and kill your family.

  60. SamChevre says:

    From the OP: “But there’s also a stable equilibrium where 51%+ of the nation’s police join our sordid bribery chain.”

    For an idea of what that would look like in practice, I highly recommend The Autobiography of Lincoln Steffens (which is a generally hilarious and thought-provoking book.) That’s basically what New York City had before Theodore Roosevelt became President of the Police Commissioners–and when he cracked down on the system, the crime rate skyrocketed.

    • MrApophenia says:

      That also appears to have been largely what New York had in the 1970s, too. The Knapp Commission basically found that corruption was so prevalent in the 1970s NYPD that you essentially divided them into the “grass eaters” who merely partook of bribery as a kind of default because it so so much the endemic culture of the police force that it was difficult and potentially even dangerous not to (plus, hey, money), and the “meat eaters” who utilized their police status to essentially operate as organized crime.

      The famous quote from Frank Serpico’s testimony was, “Ten percent of the cops in New York City are absolutely corrupt, 10 percent are absolutely honest, and the other 80 percent — they wish they were honest.”

      The scenario laid out where the people who are supposed to be enforcing the rules have just switched to the other side en masse seems to have also been the case; it wasn’t just that Internal Affairs were unable to combat police lawbreaking effectively, they were enthusiastic participants.

      I also somehow doubt New York City was the only place to have this occur. This seems like a situation that modern police forces can absolutely find themselves in.

      • dndnrsn says:

        Did they conclude why the department was so corrupt? Because I had always read that corruption was related to poor salaries – taking bribes makes more sense if your pay is poor otherwise.

        • MrApophenia says:

          Good question! No idea, though. If they proposed a cause I am unfamiliar with what that was, if anyone here knows more on this would be very interested in hearing it!

        • SamChevre says:

          In the late-1800’s NYC, it was at least partly a crime control measure.

          If the police are basically renting out the franchise for various sorts of crime by territory, this has two useful side effects:
          1) The people buying the franchise have a strong interest in protecting it from free-lancers.
          2) If someone goes out of bounds, the police know who it was. (The example in the book was when some visiting dignitary had his watch stolen. The police let the pickpockets know that it needed to be returned, or they would shut down all that group’s illicit businesses: it was returned the same day.)

          • albatross11 says:

            I’ve always heard stories that there are neighborhoods run by serious criminals (Mafia, high-level drug dealers, etc.) with very low crime rates, because the serious criminals don’t want the police coming around, and they’re not particularly squeamish about how they convince other criminals that it’s unwise to ply their trade in *this* neighborhood.

  61. Art Vandelay says:

    It seems almost all of the examples are from pre-capitalist societies, which would suggest they provide evidence for the viability of non-capitalist forms of anarchy.

  62. dansimonicouldbewrong says:

    I would have thought the following points to be completely obvious, but I guess not. Anyway…

    Biological evolution isn’t an effective optimization process–it’s a random walk that will find local optima over a very long time scale, but is very bad at escaping even relatively shallow local traps. Any improvement that requires numerous simultaneous changes or the same simultaneous change to numerous individuals is pretty much a non-starter.

    Cultural evolution is even worse at optimization, because the time scales are very short compared to biological evolution. As a result, cultures are full of stunningly maladaptive characteristics that nevertheless haven’t quite managed to kill off all their adherents yet. I highly recommend Edgerton’s “Sick Societies” as an antidote to the fallacy that cultures are generally adaptive (let alone optimally so). The chapter on traditional medical practices alone should suffice to disabuse anyone.

    Finally, even for those who (inexplicably to me) find medieval justice systems appealing, the obvious challenges involved in adapting them to today’s radically different circumstances should give anyone pause. Lots of people also find traditional medieval food production and distribution methods appealing as well (again, inexplicably to me), but their low productivity, terrible hygiene and limited variety should convince even the most romantic foodie of the inadvisability of reverting all of modern agriculture to the medieval model. Similarly, does anyone really believe that for all its flaws, modern American jurisprudence generates more cruelty, injustice and lawlessness per capita than its medieval counterparts anywhere in the world?

    • Matt M says:

      Similarly, does anyone really believe that for all its flaws, modern American jurisprudence generates more cruelty, injustice and lawlessness per capita than its medieval counterparts anywhere in the world?

      I think it’s plausible that this might be the case.

      Just because food is clearly better doesn’t mean everything is.

      • dansimonicouldbewrong says:

        Of course, but the point of the analogy is that it’s very easy to hold up romanticized versions of past practices against specific complaints about their modern equivalents, and thereby make the past look unrealistically rosy by comparison. If you focus on modern food being relatively bland, chemical-laden and “unnatural”, for example, then you can build a misleading claim (as some do) that medieval food was much better, despite being for the most part shockingly scarce, rotten and confined to a few meager staples.

        Similarly, by focusing on a few distasteful quirks of the modern justice system–statistical economic or racial disparities, or occasional instances of horrible corruption or incompetence–one can present a case that one or another medieval system was superior, despite utterly lacking such fundamental elements as a fact-finding process, evidence evaluation, codified sentencing, and many others.

        • it’s very easy to hold up romanticized versions of past practices against specific complaints about their modern equivalents, and thereby make the past look unrealistically rosy by comparison.

          As someone deeply interested in history, acutely aware of how difficult llfe was in past eras, this is a point I make a lot.

        • that medieval food was much better, despite being for the most part shockingly scarce, rotten and confined to a few meager staples.

          Scarce, and less variety than we have. What’s the evidence for rotten?

          • Doctor Mist says:

            My guess is that this is a reference to the common (and I think erroneous) belief that the importation of exotic spices was so lucrative because they masked the flavor of turning meat.

    • albatross11 says:

      It seems more interesting to me as a proof of concept–you can, in fact, have justice systems that don’t look at all like ours, which still function. And those can exist even in modern times alongside industrial capitalism and democracy, as with the Roma, the Amish, Jewish diamond merchants, and prison gangs. This suggests the possibility that you could have something functional that looked very different from most modern-day legal systems now, though perhaps there’s some reason why the modern world requires a uniformed police force and a system of prisons and parole officers and prosecutors and such.

      • dansimonicouldbewrong says:

        I’m curious about how you define “function”. If prison gangs “function” as a justice system, then what qualifies as a non-functioning one? Zombie apocalypse, perhaps? Anything else?

        • Nornagest says:

          I would say you’ve got a justice system if you have a stable set of generally accepted customs for punishing misbehavior and/or resolving serious disputes that functions above interpersonal scales. So your average forager tribe probably does not have a justice system; they work at too small a scale. Same for small isolated communities on the early American frontier. And there’s not going to be a justice system in the immediate aftermath of a major disaster; too unstable. And anytime you have populations with very different legal customs coming into contact, there’s not going to be a functioning justice system between them until they’ve hung out for a while and had time to develop mutually agreeable methods.

          The interesting justice systems are going to be the ones that don’t look like any of the modern systems with lawyers and judges and such, but also don’t look like “haul the perp before the guy handing out the swords and let him decide”.

        • albatross11 says:

          A war of all against all?

          This Marginal Revolution post talks about how one prison gang effectively imposes some rules on many criminals.

          I’ve read elsewhere (I can’t find a link right now) that prison gangs on ethnic/racial lines (blacks, whites, and hispanics–I’m not sure where you go if you’re Orthodox Jewish or Chinese) end up maintaining a lot of order within the prison–among other things, the white prison gang has an incentive to prevent white inmates causing trouble with black inmates, since that’s liable to cause trouble for everyone along racial lines.

        • Skarbek offers evidence that the rise of prison gangs was associated with a sharp drop in prison violence. He also argues that a large part of their function is contract enforcement within the prison.

          So “function” in the same sense as other legal systems. For the short version, read his chapter in my book, for the long version, read his book.

    • actinide meta says:

      Similarly, does anyone really believe that for all its flaws, modern American jurisprudence generates more cruelty, injustice and lawlessness per capita than its medieval counterparts anywhere in the world?

      I don’t know. But these societies were incomprehensibly poorer than ours, so if they managed to even come close to us in any given respect, it could be a strong sign that we are doing something wrong.

      And the space of institutions is very high dimensional. Even a really terrible system might have a good solution to some particular game theory problem.

      • Standing in the Shadows says:

        Even a really terrible system might have a good solution to some particular game theory problem.

        In the case of American jurisprudence, here is how I think this is playing out. It is a bureaucratic hierarchy, so the Iron Law of Bureaucracy is in full force, in that it’s been fully retasked with Protecting The Organization, and only incidentally with the original mission, To Carry Out Justice. To make it even worse, it believes it’s institutional existence with as little change as possible is fundamentally necessary for the very existence of civilization, so everything is fought as if it was a Total Existential Threat.

        However, there are still hundreds of millions of people who annoyingly keep demanding that they reprioritize it’s primary mission back to Carry Out Justice, and so those demands have be also responded to as if they were Total Existential Threats, but without actually saying it out loud…

  63. tcheasdfjkl says:

    Like, there’s a perspective where lots of countries have a King, because societies that have a single central nexus to their coordination structure are able to coordinate better than ones that don’t, and having them rule for life promotes long-term thinking, and them be hereditary provides a clear Schelling Point for secession disputes that prevents civil war and cleverly ensures that the previous ruler is incentivized to promote the peaceful transfer of power to the next one, and this is why constitutional monarchies have slightly higher yearly GDP growth than other forms of government.

    And there’s another perspective where lots of countries have a King, because some guy seized so much power that he can live in a giant palace and order people around all day instead of doing work. And if anyone tries to prevent him from doing that, he can arrange to have that person beheaded.

    Here’s one way the answer can be both.

    A monarchy first arises because somebody seizes power, and endures certain kinds of threats because the monarch can behead those who object.

    But there are other kinds of threats to systems, like foreign invasions, where in order to survive you need to have a system that works. So if the system doesn’t work, it’ll get quickly overthrown by something that does. So, the system endures because it works.

    That is, possibly in order for a system to arise & endure, you need it to both be in somebody’s self-interest and be a stable system that works. So in practice you get a lot of things arising that are in someone’s self-interest, but the ones that aren’t also good systems fail, and the ones that endure are the ones that are good systems.

    (I don’t know if this is actually true)

  64. Art Vandelay says:

    I like a story from the Icelandic sagas about an old Viking named Egil. Old Egil befriends a younger man named Einar who still goes out raiding, and the two like to sit together writing poetry. One day Eniar comes across a really sweet shield with gold and runes and stuff all over it, and he decides Egil might like it. He goes to give it Egil but he’s not there, so Einar waits a few days and then eventually leaves it for Egil to find.

    Egil gets back home and on finding the mysterious shield, asks who left it for him. One being told it’s Einar he gets furious, “That bastard! If he thinks I’m going to stay up all night composing a poem about his stupid shield, he’s got another thing coming. I’ll kill him!” He leaps on his horse and sets of after Einar. Luckily for Einar, however, he’d already put enough distance between himself and Egil, and the latter gives up the chase after a while and resigns himself to having to write a long poem about the beauty of the shield.

  65. spurious says:

    Law is a public good. Crime victims have little economic incentive to punish the perpetrator; if you burn my house down, jailing you won’t un-burn the house. If you steal my gold, I have some interest in catching you and taking it back, but no more than I do in catching some other poor shmuck and taking his gold. It’s only society as a whole that wants to make sure criminals are reliably punished and the innocent consistently safe. This is the classic situation where economists usually recommend government intervention.

    Just a very quick one here. I may not have an obvious economic incentive to punish you after a crime. But I do have an economic incentive to convince you that I will punish you after a crime. And the best way to do that is to get a reputation for punishing people after a crime. Which gives me an economic incentive to punish you after a crime.

    The government intervention is much less about ensuring the punishment of crime than it is about mitigating the punishment of crime. Otherwise I might shoot you for stealing my car; which might make me feel pretty good, right up until the point where my neighbour decides my car stereo’s too loud.

  66. Kevin C. says:

    Definitely enjoyed this review.

    But let me also second the view that your bit about communities ‘organizing their own internal relations however they want’ is a case of much easier said than done. First, there’s the points Yaleocon and The Nybbler make.

    Let me go more point-by-point.

    You can’t override existing laws – you’ll still have to pay taxes, and you can’t set up a bomb-making factory in your backyard.

    This is a bigger issue than you make it out to be.

    But you can add as many new laws as you want, enforced by threat of ostracism from your community, plus any other clever commitment mechanisms you can think of.

    Except for when those “new laws” — or your “clever commitment mechanisms” — conflict with the “existing laws” vis-a-vis “public accommodation”, “non-discrimination”, etc. Or when the outside authorities decide one or another of your practices or “new laws” constitutes abuse of all the community’s children (see the example of the FLDS, for one).

    taking a say in when their members marry or divorce

    Except the state’s say as to who is married and who is not has important effects as well (cf. the “marriage equality” debate). One should also examine the case of Diosdado v. Diosdado. There, a married couple contracted with each other that if one of them cheated on the other, the one who cheated would pay the other a penalty of $50,000 on top of the divorce settlement. The court invalidated this on the grounds that it was counter to California’s public policy of no-fault divorce.

    The family law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity, and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce.

    Add in the likelihood of family court intervention when there are children.

    making home schools that educated their members’ children

    As Friedman himself says in the comments,

    That is true in some states, including California where I live, but not in all. The U.S. has compulsory schooling, and the state gets to decide what counts as a school. The Amish have been surprisingly successful in getting their version of schooling accepted, but there is no guarantee that a different community could.

    To this I would also point out that courts have been reticient to extend the precedent of Wisconsin v. Yoder to non-Amish, and that plenty of legal scholars have argued that the aforementioned decision is contrary to present-day jurisprudence and ripe to be overturned. In short, the Amish seem to be “grandfathered in”, and it is doubtful another group trying to form such a system could avail themselves of the same protection.

    demanding their members in business treat their employees or business partners a certain way

    Except where this violates non-discrimination statutes, labor laws, FDA regulations, OSHA regulations, and so on.

    But if the doctor only saw patients in their own community, and everyone in the community had mutual arbitration methods that worked better than the courts, maybe they could charge a fraction of the current price.

    But said doctor would still have to be licensed by the AMA.

    This might not be illegal, as long as the community wasn’t based on a protected group like race or religion.

    Except that pretty much all the examples we have of groups that form these sorts of parallel communities are based on religion.

    There just aren’t many existing communities strong enough to make it work.

    This is the big, key part. Zygmunt Bauman’s Liquid Modernity seems apposite here. As does Rod Dreher’s recent post referencing Patrick Deneen’s upcoming book Why Liberalism Failed:

    By “liberalism,” he’s not talking about progressivism, or the politics of the Democratic Party alone. He’s talking about the entire system within which we live, and that has evolved in the modern era to this point. Deneen’s argument is essentially that liberalism failed because it succeeded so well in what it set out to do: liberate the consciousness of individuals from any restraints that inhibit their autonomous choice. To be clear, Deneen does not say that liberalism has been a bad thing; in fact, he says it is simply dishonest to ignore the very good things that have come out of liberalism, and that it is absurd to speak of the pre-liberal past as a golden age to which it would be possible to return. That said, his book interprets the systemic crisis we’re in now, and which he believes (quite correctly) is going to get much worse, because the center cannot hold.

    Note that pretty much all the examples here are of groups whose “thick” community ties are essentially a legacy of that “pre-liberal past” which have been preserved into the present by resistance to modernity and its atomizing effects. As Friendman notes in the same comment I linked above:

    Scott doesn’t mention it, but I argue in the book that the Romany system in the U.S. seems to be breaking down because the tolerance of the surrounding society reduces the cost of exit.

    Note that for expulsion/banishment/exile to work as an effective punishment, one pretty much to have fully internalized these “thick” ties; essentially, to have been born and raised in the “rooted” community in question. And it is one thing to protect strong community ties against the corrosive power of “liquid modernity”, it’s another to (re)build such ties after they’ve been worn away. It’s one reason why I’m highly skeptical about the feasability of the “Benedict Option” — or of any Right-leaning “parallel” or “intentional” community — being formed by moderns. They’re too atomized to see exile as a real punishment; instead, too many valorize it as “exit”. Particularly us Americans, as we are mostly descended from people who, when the going got tough… packed up and ran away.

    Plus, there’s the fact that a parallel community, as you noted, can’t impose any punishments other than varying degrees of ostracism-to-expulsion, due to the outside state.

    And, how does one enforce such an expulsion? What if the community pronounces someone “banished,” and they refuse to leave?

    And there’s always the seasteading movement, currently led by – oh, that’s interesting – David Friedman’s son.

    Why do you mention seasteading as if it were a viable “exit” option, rather than the ridiculous, unworkable pipe-dream it clearly is?

    we could build something like Archipelago gradually, without anybody noticing. The Jews and Gypsies did something like it. So did the Amish.

    Except these groups did all the “building” centuries ago, and at least one of them — the Romany — are “dissolving” into modern society (at least in the US). Note also that only the most orthodox of Orthodox Jews still have this sort of thing, while other Jewish demographics in America are shrinking thanks, at least in part, to assimilation and “outmarriage.” What makes you think that, in the long run, the Amish and Orthodox Jews will be any more successful at resisting “liquid modernity,” particularly if protections like Wisconsin v. Yoder do in fact get overturned? Let alone that anyone else will be allowed to follow their example?

    • Nabil ad Dajjal says:

      You make a lot of good points, and I want to acknowledge that before getting into my critique.

      I agree that it’s implausible to start an autonomous ethno-religious community within the first world. You would be immediately identified as a threat and overwhelming force would be used to break up your nascent community.

      But the first world isn’t the entire world. A number of groups have in modern times had great success carving out niches within third world nations.

      I mentioned the Russian Mennonites upthread, but one thing that I didn’t mention is that as Canada became increasingly hostile to their way of life they picked up and moved a second (third really) time. The Mennonites colonized an extremely hot and, at the time, nearly uninhabited region of Paraguay called Central Chaco. They won special legal privileges from the Paraguayan government by supplying their army during a border war with Bolivia and as such are almost totally autonomous. Today they’re doing quite well and are responsible for most of the country’s economic growth. The usual suspects complain that they shouldn’t be allowed to exist but the local government is dependent on them and nobody who matters actually cares about Paraguay.

      There are still many places where the modern state can’t reach and doesn’t care to. And given how sickly the US and EU look these days, the number of such places will likely increase in the future. Settling in those areas is probably the best choice available.

      • SamChevre says:

        Nitpick on detail: the move to Paraguay was the fifth major move: western Germany/the Netherlands to Poland (1600’s), Poland to Russia (1700’s), Russia to Canada (late 1800’s-early 1900’s), Canada to Mexico (1920’s), Mexico to Paraguay (and Bolivia). Some people went directly to Paraguay, but 10,000 people left Canada and moved to Mexico in the 1920’s.

        A great overview is here, in the archives of Scott Martens old Pedantry blog. The whole series is interesting–it starts two posts earlier with a bit about Nestor Mahnko.

      • The Nybbler says:

        I agree that it’s implausible to start an autonomous ethno-religious community within the first world. You would be immediately identified as a threat and overwhelming force would be used to break up your nascent community.

        The Haredi in Kiryas Joel, NY and Lakewood, NJ seem to have managed, largely by co-opting the mechanisms of the state. (and some fraud and corruption, but that’s endemic in NJ anyway)

        • Kevin C. says:

          The Haredi in Kiryas Joel, NY and Lakewood, NJ seem to have managed, largely by co-opting the mechanisms of the state.

          Any details how they managed to do this “co-opting?” And how replicable is it? Is it a strategy any sufficiently well-motivated and cohesive group could emulate, or were there factors specific to that case that are unlikely to be found elsewhere?

          • The Nybbler says:

            Any details how they managed to do this “co-opting?”

            Majority rule. They control the school boards and municipal government because they have enough members to win elections. Then they take advantage of mechanisms available to government (grants from higher levels of government, annexation, etc) to implement their own policies. For instance, they’ve managed to get their religious schools funded by taxpayers, while cutting the secular schools to do the minimum required.

          • Kevin C. says:

            @The Nybbler

            Majority rule. They control the school boards and municipal government because they have enough members to win elections.

            This, at least, any group with sufficient numbers, relative to the target community, could attempt. But then, doesn’t this depend on the tolerance of the next level up of governance? Why haven’t the county or state governments overturned/overruled the policies of these communities?

            Then they take advantage of mechanisms available to government (grants from higher levels of government, annexation, etc) to implement their own policies.

            And how much of this is due to what those particular policies are? Again, how successful do you think other groups, with other policy goals, would be emulating this example?

            For instance, they’ve managed to get their religious schools funded by taxpayers, while cutting the secular schools to do the minimum required.

            And why hasn’t this been challenged in court on “separation of church and state” grounds?

          • The Nybbler says:

            This, at least, any group with sufficient numbers, relative to the target community, could attempt. But then, doesn’t this depend on the tolerance of the next level up of governance? Why haven’t the county or state governments overturned/overruled the policies of these communities?

            Basically because they are, or have, really good lawyers. For instance, they’ve made the funding of their religious schools look not only legal but _required_ by couching it as special education for children with learning disabilities… then they have a suspiciously large number of learning disabled students.

            Obviously there are policies they couldn’t get away with. Human sacrifice is right out, and actually banning non-Jews from living in town probably wouldn’t work. But they can easily make it so non-members of their community don’t want to live there.

          • Conrad Honcho says:

            That’s very interesting, Nybbler, but I think if some group who were not a historically persecuted minority attempted to do the same they would draw the full ire of the media establishment. For instance, Benedict Option Christians attempting to establish taxpayer funded religious schools would draw protests and harsh media criticism for “using public funds to indoctrinate children that homosexuality is a sin” or some such.

          • if some group who were not a historically persecuted minority attempted to do the same they would draw the full ire of the media establishment. For instance, Benedict Option Christians attempting to establish taxpayer funded religious schools

            The Amish were not a historically persecuted group in the U.S., although they had been in the distant past in Europe. And Amish schools are not taxpayer funded.

      • Kevin C. says:

        A number of groups have in modern times had great success carving out niches within third world nations.

        Do you have any examples other than the Paraguayan Mennonites you mention?

        They won special legal privileges from the Paraguayan government by supplying their army during a border war with Bolivia and as such are almost totally autonomous.

        And where do you see any analogous opportunities at present?

        The usual suspects complain that they shouldn’t be allowed to exist but the local government is dependent on them

        And how many other local governments are going to allow themselves to become so dependent upon a bunch of migrating outsiders?

        and nobody who matters actually cares about Paraguay.

        And if one day, some of them start to care?

        There are still many places where the modern state can’t reach and doesn’t care to.

        Such as? And how many of these places will accept an “autonomous ethno-religious community” moving in and establishing their own enclave full of foreign ways? (Versus, say, perceiving our would-be-Amish folks as invaders, outsiders, and simply murdering them all and stealing their stuff?)

        And given how sickly the US and EU look these days, the number of such places will likely increase in the future.

        [Citation Needed]

        Settling in those areas is probably the best choice available.

        “Best choice available” doesn’t mean it’s in any way a good choice, just the least awful. Nor does it mean it has worthwhile odds of success. (I recall seeing someone on Reddit recently arguing that people need to be playing the lottery more, and that those who are need to be paying more — at least $100/month — because any probability of winning, no matter how small, is better than the zero probability of winning if you don’t play. Many of people attempted to patienty explain that this is not how probabilistic reasoning works — cost of playing, expected values, etc. — but the fellow just kept repeating that same point “small probability > zero probability”, in what is an example of the sort of innumeracy/stupidity that the lottery is often expressed as a tax upon.)

        [Edit:] Also, if your autonomous ethno-religious community turns out to be much more successful than their third-world neighbors? Need I point to the example of European history when you have enclaves of insular folks of a foreign religion who are relatively wealthy, how the local folks tend to end up feeling about them?

        • Nabil ad Dajjal says:

          Do you have any examples other than the Paraguayan Mennonites you mention?

          I’m more familiar with Mennonites because researching them is a hobby of mine. But I don’t think you’re going to be convinced by me listing out each of the dozen or so countries in Latin America in which Mennonites have successfully established colonies.

          I’m not very familiar with other European Christian sects that have established settlements overseas recently.

          Such as?

          There’s a lot of land that people aren’t making much use of because it’s too hot and dry. Or too cold and wet. Or just too difficult to get to without building a road to nowhere.

          If you’re not causing trouble and make yourself valuable to the local authorities then you’ll probably be left alone. What the hell does El Presidente care if your cult is weird when you’re way out in the jungle making him money?

          Also, if your autonomous ethno-religious community turns out to be much more successful than their third-world neighbors? Need I point to the example of European history when you have enclaves of insular folks of a foreign religion who are relatively wealthy, how the local folks tend to end up feeling about them?

          You’d have to fight or flee.

          I’m not saying that there’s a cheat code to build an independent community that lasts forever with zero risk. Fighting entropy is difficult work and eventually you will fail. But the meantime can last for generations, and that’s honestly good enough.

        • Matt M says:

          The Mormons have established themselves all over the world in recent years. If fleeing to Utah to get people to stop killing them isn’t “modern” enough for you, then you can look to them setting up in increasingly hostile foreign nations (including much more recently in Russia) as an example.

          They generally integrate rather than maintain an isolationist conclave, but it also seems like they can stick to their own affairs and not get bothered too much.

    • 天可汗 says:

      They’re too atomized to see exile as a real punishment; instead, too many valorize it as “exit”. Particularly us Americans, as we are mostly descended from people who, when the going got tough… packed up and ran away.

      …to build a new society that had thick community ties and punished people with exile. At least the ones in the old origin myth did.

      If BenOp turns out to be the white-ethnic coalition going “gee, you know, now that the Puritans have gone through their cultural revolution and changed the doctrines they keep trying to Civilize us with, we’re starting to see that the pre-CR Puritans had a lot of good things going on that we’d go well to adopt”…

      • Kevin C. says:

        …to build a new society that had thick community ties and punished people with exile. At least the ones in the old origin myth did.

        Sure, the Puritans (of Albion’s Seed model) did so, but less the Quakers, and that really doesn’t much describe the Borderers (they were more the “clan feud” sorts, no? Hatfield-McCoy?) or the Cavaliers, does it? Nor most the immigrants that followed.

  67. Art Vandelay says:

    Whenever I read a book by anyone other than David Friedman about a foreign culture, it sounds like “The X’wunda give their mother-in-law three cows every monsoon season, then pluck out their own eyes as a sacrifice to Humunga, the Volcano God”.

    And whenever I read David Friedman, it sounds like “The X’wunda ensure positive-sum intergenerational trade by a market system in which everyone pays the efficient price for continued economic relationships with their spouse’s clan; they demonstrate their honesty with a costly signal of self-mutilation that creates common knowledge of belief in a faith whose priests are able to arbitrate financial disputes.”

    This is great, and it’s important to fight the temptation to think of foreign cultures as completely ridiculous idiots who do stuff for no reason. But it all works out so neatly – and so much better than when anyone else treats the same topics – that I’m always nervous if I’m not familiar enough with the culture involved to know whether they’re being shoehorned into a mold that’s more rational-self-interest-maximizing than other anthropologists (or they themselves) would recognize.

    This question of the rationality of extremely different cultures has a long pedigree in anthropology. One of the classic early attempts to grapple with this problem is Edward Evans-Pritchard’s Witchcraft, Oracles and Magic among the Azande based on fieldwork he conducted in Sudan in the 1920s and 1930s. The Azade believe that almost every ill-fortune that befalls them is the result of witchcraft and have to constantly consult oracles when something goes wrong – they fail to catch a wild boar while hunting, or one of their wives gets sick. Evans-Pritchard was trying to show that by the internal logic of their own thinking, everything they did was perfectly rational. If you accepted their fundamental assumptions about the nature of reality then they were acting completely logically. One popular thought experiment given to first year anthropology students is to get them to imagine an Azande anthropologist coming to Europe. At first they would think, “these people are mad, they don’t accept the obvious existence of witches and attribute everything that goes wrong to ill-fortune.” Then, they might do something like the move David Friedman makes and think, “Actually, perhaps not believing in witches provides a sort of social cohesion necessary to the proper functioning of European society. If they accepted the reality of witches they would have to deal with the fact that people are constantly casting malevolent spells on them and the resulting disputes could be a threat to the stability to the social order.”

    The Azande example is obviously dealing with whether other cultures’ actions are rational by their own logic, but there have been plenty of attempts to argue that they’re also rational by our standards. Economic anthropology as a sub-discipline was largely created in the 40s/50s by a debate between two groups known as the formalists and the substantivists. The formalists argued that the economic behaviour of “natives” could be understood by applying theories of rational, self-interested maximisation drawn from mainstream economics whereas the substantivists held that they had to be understood as working on different logics to our economic system. This debate never really got resolved and economic anthropology moved onto other questions, largely because the idea that homo economicus explained behaviour in pre-capitalist societies seemed fairly clearly untrue to the majority of anthropologists who’d spent a long time conducting research in such societies, but the substantivists never really came up with a good explanation of motivation, no reason why people did the things they did beyond “because it’s their culture”.

    The problem never really went away though. One of the most famous relatively more recent examples was a debate between Gananath Obeysekere and Marshall Shalins about the death of Captain Cook at the hands of Hawaiian natives. Sahlins had argued that the Hawaiian’s killing of Cook made sense in the context of their mythical worldview, particularly in relation to their belief that he was a kind of deity. Obeysekere attacked him, claiming that there is a universal ‘practical rationality’ which was confirmed by contemporary knowledge of neurophysiology and cognitive thought processes. The Hawaiians, in his view, had known perfectly well that Cook was a man just like them, not a god, and they killed him for reasons that look perfectly rational to a Western understanding of the world.

    Interestingly, Obeysekere is the postmodernist in this debate. During the back and forth between them he argues that Sahlins is engaging in a kind of orientalism in ascribing a fundamentally different way of comprehending the world to the Hawaiian’s, criticises Sahlins’ reading of Western sources as not being critical enough and believing they roughly correspond to objective reality when they’re obviously engaged in just the same orientalism he accuses Sahlins of. He even argues that as a native Sri Lankan he is better able to understand the non-Western view of Hawaiians than the white, Western Sahlins.

    This should not actually be especially surprising. The idea of people being rational, and particularly the idea of calculatedly pursuing their own self interest pervades a lot of post-structuralism (a relative of postmodernism, although most people here seem to lump them in together.) This passage from Pierre Bourdieu (although in Bourdieu’s case the conflation of postmodernism and post-structuralism doesn’t quite work as much of his sociology was based on doing statistical analyses of large sets of data) on gift exchange among the Kabyle is a fairly clear example:

    A rational contract would telescope into an instant a transaction which gift exchange disguises, by stretching it out in time; and because of this, gift exchange is, if not the only mode of commodity circulation practiced, at least the only mode to be fully recognized, in societies which, because they deny ‘the true soil of their own life,’ as Lukacs puts it, have an economy in itself and not for itself. Everything takes place as if the essence of the “archaic” economy lay in the fact that economic activity cannot explicitly acknowledge the economic ends in relation to which it is objectively oriented: the “idolatry of nature” which makes it impossible to think of nature as a raw material or, consequently, to see human activity as labour, i.e., as man’s struggle against nature, tends, together with the systematic emphasis on the symbolic aspect of the activities and relations of production, to prevent the economy from being grasped as an economy, i.e., as a system governed by the laws of interested calculation, competition, or exploitation.

    This might be a good point to return to David Friedman’s book and Scott’s question of ‘whether [the cultures discussed are] being shoehorned into a mold that’s more rational-self-interest-maximizing than other anthropologists (or they themselves) would recognize.’ I think the answer here is that, yes, they are, but this isn’t necessarily a problem in and of itself. Any theory for understanding societies or human action is going to be incomplete and at best capture a small slice of the infinitely more complex reality of the objective processes that took place or are taking place right now. When you try to reduce a society or even multiple societies to words on a page you’re undoubtedly going to lose the vast majority of what’s actually going on but hopefully your theoretical simplifications can still contain some accuracy and have some use in making sense of the world. Scott points to one of the benefits of this book: that it translates seemingly bizarre customs into terms that are familiar to contemporary Westerners with some understanding of economics and through this, powerfully conveys the truth that these people aren’t just crazy idiots engaging in behaviour that’s at best pointless and at worse self-destructive. It’s also probably useful for the development of economics itself: applying familiar concepts to unfamiliar contexts can help refine your understanding and use of these concepts and on returning to more familiar modern, capitalist economies you might well use these concepts in a sharper and more illuminating way. It probably won’t be as rich or as nuanced as some of the accounts of historians and anthropologists and probably in some respects less accurate but it might well be perfectly suited to Friendman’s purposes and could capture some aspects that these other accounts miss.

    Having said this, you don’t want to do too much shoe-horning, and although I haven’t read Friedman’s book so I can’t say whether he does this or not, economic accounts often tend to do this. This comes out in Bourdieu’s analysis quoted above – in his view, the level on which they are acting in economic self-interest is the objective level of reality. They may think they’re being generous but a scientific analysis is one which shows how really there’s calculation at work behind this subjective mask of munificence. There’s a tendency that when we see, ‘The X’wunda ensure positive-sum intergenerational trade by a market system in which everyone pays the efficient price for continued economic relationships with their spouse’s clan; they demonstrate their honesty with a costly signal of self-mutilation that creates common knowledge of belief in a faith whose priests are able to arbitrate financial disputes,’ we don’t interpret it as a particular way of describing reality that reveals some features while occluding others to be judged on what it reveals and how well it corresponds to actual practice, we interpret it as an objective description of what is happening.

    There’s often a strange correspondence between ‘a mold that’s more rational-self-interest-maximizing’ and seeing things as being “objective” or “scientific”, like in Bourdieu’s account where the objective level is the one where we can say that people are being selfish. This is then often extended metaphorically across levels so that we can find an economic incentive for punishing crimes but also, ‘natural-human-desire-for-vengeance is probably just evolution’s solution to this same problem.’ We extend optimisation through the pursuit of self-interest down the scale towards biology and up the scale towards societies. Genes should be understood as if they were rationally pursuing their own self interest and this is an explanation for progress. Ideas should be understood through an analogy with genes as memes, which also act as if they were pursuing a self-interested desire to replicate. Institutions and even societies can be understood as if they were self-interested, competing individuals, and this again drives progress. I think it ends up with a sort of evolutionism that much more closely resembles the Spencerian version than what you’d find in On the Origin of Species. Less “variation under natural selection” and more “survival of the fittest” as a cosmic principle driving an optimising teleological process. It ends up with optimisation caused by competing individuals, not being one theory of society or one aspect of the economy, but a natural law of progress. Margaret Thatcher was famously nick-named TINA because of her fondness for proclaiming “there is no alternative”. The only arena where competition cannot be allowed is in the marketplace of ideas. Interestingly, she got this line from Spencer who was just as keen on claiming there is no alternative to competition because it is a natural law of progressive evolution.

    tl;dr
    Anthropologists have debated the question of how rational seemingly exotic cultures are and in what sense they are rational. Shoe-horning other cultures into the terms of economic theory is not a problem as long as it’s for a purpose and we keep in mind that it’s just one way of describing/modelling objective reality and we take care not to confuse it for objective reality itself.

  68. moscanarius says:

    One little-admitted but much-worried-about justification for mass incarceration in our society is the concern that some people are just so naturally violent that, left in the outside world, they would offend again and again until they died. The societies in this book didn’t seem to worry about this. If someone killed, their family would give up the relevant number of camels, and then everyone would be on their way.

    Well, within this system, if someone turned out to be a naturally violent and uncontrollable criminal that didn’t give a… penny for weregeld, very soon some angry tribesman would butcher him and be contented to pay the weregeld for his death, much to everyone’s relief. Today, no one can do that (officially); we established penalties so high for murder that no cooperative, community-oriented person would dare murder the hypothetical naturally-violent guy. The costs would be too high. Hence the public clamor for incarceration and the permanent anxiety about violent people.

  69. moscanarius says:

    Right now doctors’ services are super-bloated and expensive because if a patient sues them they can be held liable for not filling out any of seven zillion forms or following any of twenty zillion best practices. But if the doctor only saw patients in their own community, and everyone in the community had mutual arbitration methods that worked better than the courts, maybe they could charge a fraction of the current price. This might not be illegal, as long as the community wasn’t based on a protected group like race or religion. There just aren’t many existing communities strong enough to make it work.

    The main problem is rightfully noted at the end of the paragraph: you need the community to be very strong for this to work. Or, better saying, it has to be very strong in relation to the central government and the mainstream society, so as to make external intervention in their rules less likely and less overwhelming.

    I mean, everytime the community sets up or enforces a regulation that is not supported by the mainstream government, there is a risk that someone discontent with the results might rebel and bring the official laws to the case, basically invalidating the previous agreements. This sort of defection is very destructive to the uniqueness of the community’s laws. It is no coincidence that the examples of succesfully diferentiated communities are heavilly overrepresented with minoritary ethno-religious groups (which are bound tightly together by their unique culture and usual (and corresponded) contempt for the surronding population) and groups living in countries where the government is weaker and/or less prone to meddling. Anything short of mennonite or orthodox jew levels of cultural isolation has trouble prospering in a modern wealthy country.

    (It is also no coincidence that big governments often get specially jeallous of religious leaders’ authority)

  70. JoeCool says:

    In these situations I always wonder where Children and especially older teenager’s rights come into the equation.

    Like in theory an Amish teen who is tired of having her rapist only have to apologize to her as a punishment could go and integrate into U.S society, but in practice she can legally only do that when she is 18, at which point she doesn’t get much by the way of educational benefits or even a place to live and is thus royally screwed. Could she work her way from homeless none English speaker to successful person? I mean in theory, yes, there is one who wrote a self published E-book and did just that, but in practice 99 percent of people can’t.

    I mean ideally I think child labor laws should be relaxed and minors should have the right to be bound by contract law, but this is politically impossible, and since we can’t do that, banning Amish communities in the name of rape reduction and or the Amish tendency to oppress minorities does not seem super crazy to me.

    Also; if you and your community don’t like the government your still out of luck (it seems to me) because the government generally allows extra restrictions, but not not less restriction. Possible exception is when corruption is tolerated.

  71. tuananeves says:

    Would you kindly give me permission to translate your review to Portuguese? It would be posted on http://indigo.org.br which the website of foundation based in Brazil dedicated to research in public policy.

  72. John B says:

    All these rosy depictions of feuding societies miss the fact that some of them were very, very violent, with murder rates higher than any ever seen in the US. This includes both medieval Iceland and some of the plains Indian tribes. Some feuds resisted all attempts to settle them and raged for decades; one such feud brought an end to Iceland’s independence. Read some time about the feud between the Campbells and the MacDonalds in the Scottish highlands, which lasted more than 200 years and led to thousands of killings. It was never settled until the British state swept in after Culloden and imposed its own justice.

    One anthropologist I know told me that “every attempted settlement I attended ended in a brawl.”

    Another thing about these societies is that they were all highly stratified and included bitterly oppressed lower classes; these legal systems do not work at all for those without power or powerful protectors. The Chinese system did pretty much nothing for peasant women.

    These societies can survive for a long time, and they avoid some of our problems like mass incarceration, but they do not achieve either the sort of very low rates of violence seen in modern Europe and Japan or any rights for the downtrodden.

    • All these rosy depictions of feuding societies miss the fact that some of them were very, very violent, with murder rates higher than any ever seen in the US. This includes both medieval Iceland and some of the plains Indian tribes.

      Evidence for Iceland? Prior to the final breakdown in the 13th century, I see no evidence that the murder rate was as high as the U.S. murder rate. The one attempt I know of to estimate deaths during the Sturlung period (breakdown) produced a rate comparable to rates in the U.S. at the time I wrote my original article (higher than they are now).

      For the Sturlung period, the obvious comparison would be to the U.S. Civil War. It killed two or three percent of the population over four years, for a death rate of about 500/100,000 per year. That’s well over an order of magnitude greater than the estimated death rate during the Sturlug period.

    • Watchman says:

      Not sure about your understanding of the Campbell-MacDonald feud, which was not so much a feud as a religious-political dispute, with the Campbells having taken on a strongly Protestant, pro-government of the United Kingdom stance. This gave them access to the levers of state power – commissions in the army, written title to lands etc – and also made them the ‘good guys’ in the eyes of the relatively distant Edinburgh and very distant London governments. It is from this position of power that the major historical elements in the ‘feud’ were conducted – the Glencoe massacare and the attrocities on Rathlin were done by ‘official’ forces. It was not the feud that was destructive – it was the introduction of an external authority (the same might also be the case in Iceland, where Norwegian royal authority increased as social order broke down).

  73. Worley says:

    The trouble with the phrase “social evolution” is that people read into it the same fallacy they read into biological evolution — it’s a linear march to perfection. The real property that evolution has is that things that are competitively better tend to crowd out things that are competitively worse, but that competition can depend quite a lot on (changing) contexts, random factors, etc. So we expect social systems to be good in the way our bodies are good, rather hard to design a version that is far better than the current one, but shot through with various flaws that seem like one could have done better.

  74. maqtoob says:

    As weird as it is to punish murder with a fine, the fines these societies levied for murder sounded really high: the Islamic price was a hundred camels, the Irish price was seven female slaves. The average person wouldn’t have that many slaves or camels, so people in Arabia or Ireland would band together into clan/family-based blood-money-paying-groups that acted kind of like insurance companies. If a member got convicted of a crime, everyone else would come together to help them pony up the money. I assume this helped incentivize people’s families to discourage them from committing crimes. But it has the same feeling of nobody expecting very many crimes to be committed. How much of medieval Arabia’s GDP consisted of transfers of 100 camels from murderers to victims’ families?

    If one of the reasons we levy punishments is to deter criminal offenses than instead of looking at the punishment itself you have to look at the expected value of the punishment. Since these communities did not have the surveillance or large investment in policing they had to increase the punishment levied to make up for the smaller chance that someone would be caught. So basically there are two ways to get to the optimal expected punishment.

    The same issue pops up with increased government surveillance – as the government gets new tools and it’s easier and easier to figure out who committed what crime should we decrease the punishment?

    • Since these communities did not have the surveillance or large investment in policing they had to increase the punishment levied to make up for the smaller chance that someone would be caught.

      Under Icelandic law, if you killed someone you had to publicly announce the fact–that was what made the difference between killing and murder (secret killing). Failing to do that was shameful, as well as eliminating some of your possible legal defenses.

      There isn’t much in the Icelandic sagas that corresponds to our detective stories, where the puzzle is who did it–the only example that occurs to me is one killing in Gislisaga. Normally everyone knows who did it.

      • maqtoob says:

        What was the punishment for murder in Iceland?

        Also, this trickles down to smaller crimes – theft/adultery etc. Those crimes which were common, would also be less likely to be caught and had higher punishments. They then would have to make the punishment for murder higher than those.

        Similarly when there is a higher standard of evidence, that decreases the expected value of the punishment (i.e., the requirement for 4 witnesses for adultery in Islam)

  75. Bellum Gallicum says:

    Reading about Marxism is like reading about Santa Claus, all an intelligent person needs to do is here to premise and realize it’s a fairy tale for children.

    But man was the Santa Claus math unpopular with the other 3rd graders

    • Nornagest says:

      I’m no fan of Marxism, but it’s historically been popular enough among educated people to make me skeptical of this theory. At least then. Now that it’s repeatedly been given a go and failed to produce the advertised results, it might be a little less facially attractive to conventional minds — though maybe even more facially attractive to contrarians.

  76. P. George Stewart says:

    “On the one hand are statistics like the ones saying crime has increased by an order of magnitude since 1900 or so; on the other are findings like Steven Pinker’s that violence is constantly declining.”

    Aye, well, there’s the rub. You twitted the neo-reactionary crowd with being wrong about the former. But are they?

    I think the relevant distinction is probably along the lines of Pinker’s stats being more to do with “chances of me, a random male schlub, dying a violent death in military conflict,” whereas the stats showing crime has actually increased (but is increasingly fluffed over by statistical legerdemain) is about crime as a constant irritant for your average schlub, etc.

    Both could be true, and both seem anecdotally true from my personal point of view. I’m 58, and the small-town Scottish life I grew up with seems to have been markedly less crime-ridden than today’s equivalent (I recently revisited that home town, and it’s become a bit of a wasteland).

    But at the same time, I haven’t been conscripted into any military ventures by aristocratic nobs.

    So as with all these medium-sized questions, “progress” seems to have been a mixed bag.

    The tally might be thought to be on the positive side in that not dying is better than being irritated by crime, but then again, that’s from the “safety first” point of view. Formerly, people weren’t so afraid of death, presumably because most of them had religious belief (“Come on lads, do you want to live forever?”) or a belief in the weaving of the Fates (so you might as well risk whatever needs risking), and maybe they had a better QOL while alive (adjusting for technology).

    I suppose that’s the question at the root of all this: how much is our improving technology masking an underlying rot?

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