Question I’d never thought to ask before: are we sure it’s a good idea to let people know what the laws are?
The Chinese legal system originated somewhat over 2000 years ago in the conflict between two views of law, legalist and Confucianist. The legalists, who believed in using the rational self-interest of those subject to law to make them behave in the way desired by those making the law, advocated harsh penalties to drive the equilibrium crime rate to near zero. They supported the ideas of a strong central government, equal treatment under law, and written law available to all. Confucianists saw the issues in terms of morality rather than law and the objective not to modify by behavior by punishing and rewarding but by teaching virtue. They feared that a written law code generally available would lead to rules lawyering and supported unequal treatment based on the unequal status of those to whom the law applied…Some early writers argued against making the law code publicly available.
Not that knowing what the laws were in ancient China would necessarily help:
Where the offense did not seem to fit any category in the code, the court felt free to find the defendant guilty of doing what ought not to be done or of violating an Imperial decree — not an actual decree, but one that the Emperor would have made had the matter been brought to his attention.
Actually, the ancient Chinese legal system just sucked in general – but suckiness might have been the active ingredient:
Another way of dealing with the disproportion between the [vast] population to be controlled by the legal system and the [few] resources commanded by that system was to discourage resort to law. One way in which this was done was to make the private practice of law, in effect, a criminal offense; individuals who wanted help with their legal problems were expected to get it from the district magistrate and his staff. Another was by making involvement with the legal system potentially unpleasant for all concerned. There was no equivalent of our tort law by which an injured party could use the legal system to compel restitution—all law was, in our terms, criminal, and all prosecution public. It was legal to torture witnesses in the process of extracting information from them. Participants in the legal process were expected to act as humble petitioners, recognizing the vastly superior status of the officials they were interacting with.
Making it costly to interact with the legal system was one way of reducing the amount of work required of the bureaucracy but risked providing an individual with the opportunity to injure an enemy by accusing him of an offense. It was a risky tactic, since both accuser and accused would be imprisoned, and if the accusation was found to be false the accuser was subject to the penalty that would have been imposed on the accused if found guilty. The obvious solution was to make the accusation anonymous. That problem was dealt with in a straightforward fashion by Ch’ing law; for an official to read an anonymous accusation was a criminal offense.
Continuing on the theme of “ancient Chinese law sucking”:
There remained a fourth category, convicts “deserving of capital punishment.” Their names were written on a sheet on which the Emperor drew a circle, separating those who would be executed from those to be held over for another year; it is unclear whether being inside or outside the circle implied execution. A defendant guilty of family offenses who survived this process twice had his sentence commuted to deferred execution; for other offenses it took ten times.
More variations on the same theme:
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.
On Jewish courts:
Until the reestablishment of the State of Israel in the 20th century, the Jewish population consisted of dispersed communities living under the authority of non-Jewish rulers. Such communities were subject from time to time to persecution or even expulsion. But for the most part, they enjoyed judicial autonomy. Gentile rulers, Christian and Muslim, found it convenient to subcontract the job of ruling and taxing their Jewish subjects to the local Jewish authorities. The ruler set the total tax burden to be imposed on the community, the local authorities were responsible for allocating it among the residents and settling disputes among the community’s members. Thus Jews in the diaspora lived largely under Jewish law. In some cases, the delegation of authority seems to have been carried to extraordinary lengths. Under Jewish law, “informing,” giving gentile authorities information about a fellow Jew injurious to him, was a crime. At some times and places, informing three times was a capital offense. Someone convicted of a capital crime was executed by the (gentile) mundane authorities. It follows, if Elon’s account of the situation in Spain is correct, that under some circumstances the gentile authorities were willing to execute a Jew for the crime of betraying information about other Jews. Betraying it, presumably, to the gentile authorities.
In Jewish law, someone with a terminal disease can theoretically murder (or commit any other crime) with impunity:
One of my favorite bits of legal logic concerns someone dying of a fatal organic disease. Maimonides starts by saying that the killer of such a person is legally exempt—although, of course, one must be very sure that the disease is incurable and fatal. He goes on to add that if someone suffering from such a disease kills he is to be put to death, provided he is so considerate as to do the killing in the presence of a court.
What if he doesn’t? Convicting him then depends on witnesses. Witnesses can only be trusted in a capital case if they themselves are at risk of punishment if their testimony is false. In this case, conspiring to use false testimony to convict someone who is innocent would result in no legal penalty, since the victim would be someone dying of a fatal organic disease and there is no penalty for killing such a person. Since the witnesses are at no risk of being put to death if their testimony is false their testimony cannot be trusted. Since their testimony cannot be trusted, there is no way of convicting the murderer. So someone dying of a fatal organic disease can commit murder with impunity, providing he takes care not to do it in the middle of the courtroom.
Jewish law says that community authorities have control over worldly but not religious law. But marriage is considered a matter of religious law, and community authorities have a strong interest in regulating marriage and divorce. How do they do it?
One ingenious solution hit upon by the communal authorities was to argue that while the marriage was [religious], the wedding ring, being a piece of property, was [worldly]. If a marriage was celebrated without satisfying their requirements, the communal authorities held that the ring was forfeit to them. Since the groom did not own the ring, the requirements of biblical marriage had not been satisfied, hence the bride was not married and was free to marry someone else.
Some religious law, like Jewish Torah law or Islamic Sharia, prescribes draconian or otherwise ill-advised punishments. Believers have long wanted to “correct” these errors, but hesitate at openly contradicting the word of God. There are multiple traditional means for solving the problem, like saying they will only implement the religious punishment if the prosecution meets an impossibly high standard of evidence, or if the offense satisfies an unsatisfiably high number of requirements. Eg:
Consider the case of the disobedient son. The Torah prescribes death by stoning for a child who defies his parents. Some legal authorities chose to read into the wording of the biblical verse requirements that could not in practice be satisfied―for instance, that the mother and father bringing the accusation must have identical voices and be identical in appearance. Maimonides argued that a boy below the age of thirteen could not be held responsible, that a boy of thirteen might impregnate a woman, a fact that would be known in another three months or so, at which point he would be a father not a son, hence that the prescription could only apply to a boy aged more than thirteen and less than thirteen and a quarter. In his view, the combined effect of the restrictions that could be read into the biblical passage was that the stated rule never had been and never would be applied.
Islamic sharia law famously demands that thieves’ hands be cut off, but this seems to be the same sort of more-honored-in-the-breach-than-observance kind of affair:
The hadd offense of sariqa is defined as theft, but theft that meets a variety of requirements. The thief must be a competent adult; the theft must be intentional, accomplished by stealth, of an item of more than a specified minimum value. The item must be one protected by its owner, so stealing an animal grazing at a distance from its barn does not qualify, nor does stealing from a house where you are an invited guest. Stealing perishable food does not count, because it is presumed that the theft is out of hunger and so permitted. The victim of the theft must attend both trial and execution.8 Arguably the list of requirements is so extensive because legal scholars, like many non-Muslim commentators, regarded the punishment―amputation of the right hand―as excessive. Since the punishment was Koranic it could not be changed, but it could be hedged around with enough qualifications so that it was unlikely to be applied―the same approach that Jewish legal scholars applied to the rule about stoning a disobedient son. A theft that did not meet the requirements for the hadd offense could still be prosecuted and punished under ta’zir [law less directly based on the Koran].
More on sharia:
An important feature [of this system] was the separation of law and state. Law, at least in theory, was not made by the ruler but deduced by legal scholars. In the view of at least some modern scholars, that was largely true in practice as well. After the first few centuries, rulers in the Middle East were frequently foreigners to the populations they ruled, often Turkish princes who had made the transition from mercenaries in service to Arab dynasties into de facto rulers. What they wanted from the legal scholars was support for their legitimacy; while they might occasionally meddle in some legal question of immediate relevance to themselves, they were willing for the most part to leave the legal system itself in the hands of the scholars. They were even willing to subsidize the scholars by endowing mosques and madrissahs, colleges, which provided employment for legal scholars. Think of the system as what Anglo-American common law would be if law professors ran the world, defined not by the precedents set by judges but by the medieval equivalent of law review articles.
The four schools of law are all Sunni; the Shia have their own legal rules, in most respects similar. A medieval Muslim city would have had separate courts for the four Sunni schools, the Shia, and the other tolerated religions. It was a polylegal system; disputes within each community would go to that community’s courts.
In Hallaq’s view it was the breakdown of this system in the 19th and 20th century due to the rise of the nation state, itself a result of western influence, that effectively destroyed the traditional system. In Islamic territories under colonial rule, such as India, Indonesia, and Algeria, the colonial rulers replaced the traditional system of decentralized law independent of the state with a system of statutory law incorporating elements of traditional law, in some cases elements interpreted in ways favorable to the ruling power. After the end of the colonial period, the newly independent states followed the same path. Thus, in his view, modern “islamists” who view themselves as wishing to reinstitute Shari’a are in fact proposing something quite different and less desirable, a centralized system of state made law with rules to some degree modeled on traditional fiqh.
Another perspective on polylegal systems I hadn’t considered before:
The same issue exists in current U.S. law, which is in its own way polylegal. Each U.S. state has its own system of legal rules. Most disputes have an unambiguous location in a particular state, but not all; consider the case of a customer in California who purchases a product produced in Massachusetts from a seller in Texas. What court gets to decide the resulting product liability dispute? U.S. legal theory includes an elaborate set of rules for solving such “conflict of law” cases. One of those rules is diversity jurisdiction. A civil case that would normally be under state law can be heard by a federal court instead if the plaintiff and defendant are from different states, under different state laws. Think of it as a modern version of the rule that sends cross cases to the ruler’s court.
On medieval Icelandic government:
Laws were made by a “parliament,” seats in which were a marketable commodity [called a godord]…the godord itself was in effect two different things. It was a group of men – the particular men who had agreed to follow that godi, to be members of that godord. Any man could be challenged to name his godord and was required to do so, but he was free to choose any godi within his quarter and to change to a different godord at will. It was also a bundle of rights–the right to sit in the lögrétta, appoint judges for certain courts, etc. The godord in this second sense was marketable property. It could be given away, sold, held by a partnership, inherited, or whatever. Thus seats in the law- making body were quite literally for sale.
Some interesting principles of Somali law:
The Somali system is ultimately a feud system, one in which law is enforced by the private application of force or the threat of force, but a feud system with institutions for avoiding violence via widely respected mechanisms to arbitrate disputes. Part of what makes it successful, according to Van Notten, is that families are obligated to help defend their kin but not to help attack their opponents, with the result that armed conflicts are likely to lead to stalemate, and from there to arbitration.
One such oath consists of the oath-giver swearing by his marriage; if it later turns out that his oath was false, the marriage is dissolved.
If the convicted defendant refuses to pay within the specified time, he is subject to penalties ranging from a fine in honey to having one of his animals slaughtered, cooked, and eaten by the villagers each day.
For intentional murder, the penalty is a life for a life; if the murderer succeeds in fleeing abroad, a member of his family of equal status may be put to death in his stead, a rule that gives his family a strong incentive not to help him escape. In most cases the victim’s family can choose to accept blood-money instead, at a rate of 100 camels for a man and 50 for a woman, although if the murder was sufficiently outrageous the court may insist on execution of the murderer.
On the English pardon system, which usually involved the offender’s relatives pleading to a noble or other high official to plead for mercy, and the judge granting it if and only if a sufficiently impressive noble made the plea:
Pardons procured in this way substitute an efficient punishment-a fine-for a less efficient punishment-execution. In doing so, they provide resources to the state and those who control it. Officials who give out pardons are selling them for non-pecuniary payments. Thus the legal system, in addition to providing a mechanism to reduce crime, also increases the ability of the state to maintain its authority. Considered from the standpoint of public relations, it is an elegant way of doing so. Nobody is threatened save the guilty convict. The squire is not oppressing his tenants but doing them a favor, at their request. The knowledge that such favors may occasionally be needed gives everyone in the village an incentive to be polite to the squire.
On clergyable offenses in early modern England, definition creep, and how juries interpret dumb laws as damage and route around them:
Offenses fell into three categories according to their possible punishments: minor offenses, clergyable felonies, and non-clergyable felonies. Minor offenses such as petty larceny-theft of goods worth less than a shilling-were typically punished with punishments designed largely to shame the offender, such as public whipping or exposure in the stocks.
The distinction between the second and third categories was whether or not offenders could claim benefit of clergy. Benefit of clergy originated as a legal rule permitting clerics charged with capital offenses to have their cases transferred to a church court, which did not impose capital punishment. By the 18th century, the application of the rule had changed in two important ways: The definition of clergy had been broadened to include anyone who could read (and, after 1706, any defendant whether or not he could read), and the church courts had lost their role in dealing with serious crimes. The result in many cases was that a defendant convicted of a capital felony could plead his clergy, be branded on the thumb, and be sent home.
Under a Tudor statute, a defendant who pled his clergy could be imprisoned for up to a year. But that appears to have been done only rarely. Defendants who were not actually clergymen were supposed to be allowed to plead clergy only once; branding on the thumb may have originated as a device to identify those who had pled clergy once and so could not do so again. But this restriction does not seem to have been enforced very often. Presumably the brand had some stigmatizing effect. That, plus the costs born by the defendant prior to his conviction, seem to have been at some periods the only penalty actually imposed on someone convicted of a clergyable offense.
While hanging was, during much of the century, the only punishment that a judge could impose for serious non-clergyable felonies, that did not mean that everyone charged with such a felony, or even everyone charged and guilty, was actually hanged. A substantial fraction of defendants were acquitted. Of those convicted, many were convicted of a lesser offense. A jury might find a defendant guilty of an offense that was punishable by whipping or the pillory either in order to keep the offender from pleading his clergy and being released or to prevent him from being convicted of a capital offense and hanged. After 1717, they might find him guilty of a clergyable rather than a non-clergyable felony in order to convert the punishment from hanging to transportation.
In some cases the verdict was clearly an act of “pious perjury” by the jury. The fiction was clear when a jury found a defendant guilty of stealing from a house goods of value 39 shillings, although the goods were obviously worth much more than that; 40 shillings was the value that would make the theft non-clergyable. In other cases, the jury failed to include in its verdict features of the crime, such as the fact that the theft was from a house at night or involved breaking and entering, that would have made it non-clergyable. The combined effect of acquittals and convictions for a lesser (non-capital) offense was that, in the sample examined by Beattie, fewer than 40% of those charged with capital property felonies and fewer than 25% of those charged with murder were actually convicted of those offenses.
On the ancient Icelandic solution to class-action lawsuits:
Transferable tort claims could solve another problem in our system as well. Consider a tort that does a small amount of damage to each of a large number of victims, small enough so that no individual victim or small group will find it worth the trouble of suing. The current solution is a class action; an enterprising lawyer gets himself named as attorney for the class of all victims, sues on their behalf, and collects damages or accepts an out of court settlement. One problem with that solution is that there is nothing much to keep the attorney from acting in his own interest instead of that of his imaginary clients, settling on terms that give him a substantial sum in real cash and them compensation in the form of discounts on their hypothetical future dealings with the defendant. Transferable claims make possible a better solution. The lawyer purchases a large number of small claims, perhaps with the assistance of middlemen, then sues on his own behalf as their owner.15 In this respect, at least, our legal system is a mere eleven hundred years behind the cutting edge of legal technology.
Some gypsy customs:
The Kaale, the Finnish gypsies, a small population isolated for centuries, carry this attitude even further, refusing to openly admit the facts of human reproduction.3 They have no institution of marriage; couples that wish to reproduce are expected to first leave their family households, flee a substantial distance away—far enough so that their kin cannot find them and retrieve the woman—and return only when the child is weaned and so no longer requires a visible association with its mother. On returning, the father is expected to show the humility appropriate to one who has violated the norms of his society while the women of the mother’s generation smuggle mother and child back into the household, where the child will be expected to treat all the women of his mother’s generation as equally mothers.
One result of the Kaale rejection of sexuality is to eliminate many of the taboos associated with it among other Gypsy groups. There can be no restrictions associated with menstruation since enforcing them would require recognition of the fact of menstruation, and similarly with pregnancy. A Kaale woman living in the household of her (or her partner’s) kin conceals the fact of pregnancy until shortly before delivery, and arranges for it to happen somewhere outside of the household—in modern times in a maternity hospital.
More on Gypsies, paging James C Scott:
A third approach to enforcing an embedded legal system, also employed by gypsy communities, is to use control over information to substitute for control over physical force. I started this chapter by reporting a range of estimates for the world population of gypsies. That the estimates range over almost an order of magnitude is not an accident. Gypsies do not wish to be controlled by gaije. It is hard to control people if you cannot count them, and it is hard to count people when there is no one to one correspondence between person and name—Gypsies treat a name, more generally an identity, as fungible, property belonging to the extended family to be used by any member who finds it useful. By this tactic and others, modern gypsies make it difficult for the states that claim authority over them to monitor and control them, and so increase the range of alternatives available to gypsies and gypsy law.
One of my all-time favorite Friedman passages, this time on the Amish:
In an earlier chapter, I suggested that in North America toleration might eventually destroy the status of gypsies as self-governing communities by making it too easy for unhappy or ostracized members to defect. Along similar lines, it is arguable that the emancipation of European Jews, starting in the late 18th century, was responsible for the decline of the Jewish communities as distinct and effectively self-ruling polities. Yet the Amish have maintained their identity, culture, and ordnung, enforcing the latter by the threat of ostracism, despite the lack of any clear barrier to prevent unhappy or excommunicated members from deserting. Such desertion is made easier, in the Amish case, by the existence of Mennonite communities, similar to the Amish but less strict, which Amish defectors can and sometimes do join.
A critic of the Amish might argue that their upbringing, with schooling ending at eighth grade, leaves potential defectors unqualified for life in the modern world; the obvious response is that there are a lot of jobs in the modern world for which the willingness to work and the training produced by an apprenticeship starting at age fourteen are better qualifications than a high school diploma. As some evidence of the adequacy of Amish education, Amish seem to do quite well at starting and running their own small scale businesses.
One might more plausibly suggest that a social system in which courting your future mate may start as early as fourteen leaves many young people locked into a future marriage well before the point at which they have to decide whether or not to accept the Ordnung and commit themselves to the Amish lifestyle—and it is a future marriage with a spouse raised Amish. It would be interesting to know whether, when Amish do choose to leave prior to baptism, they usually do it one by one or in couples.
One could also argue that the close bonds of Amish families create a form of lock-in. Social interaction between committed Amish and relatives who have chosen not to commit is not forbidden—shunning applies only to those who have sworn to obey the Ordnung and been baptised, but then fail to live up to their commitment—but given how much of the pattern of living of the Amish is determined by their religion and culture, refusing to commit must create a substantial barrier. The barrier is higher still for those who have been baptized, and so would face shunning if they left the church.
Finally, one might interpret the low defection rate as evidence of successful indoctrination, not only into the principles of Amish life but into the negative view held by the Amish of the lives lived by non-Amish. Reading books on the Amish, all positive, all written by sympathizers,34 one is struck by how dark their picture of the outside world is. It is a world where people spend most of their efforts in competitive endeavor and display, in keeping up with the Joneses, where lives are divided among the almost wholly separate circles of work, family, and church, where little meaningful happens or can happen, a world of boredom and alienation.
There is, of course, one other possibility. Perhaps the Amish are correct in believing that they have a superior life-style, as judged by most of those who have lived it and observed the alternative—albeit a life style superior only for those who have had the good fortune to be brought up in it.
Plains Indian wife stealing:
Wife stealing was illegal and done openly, so guilt was not an issue. Compensation was. The husband was expected to confront the wife stealer and demand generous compensation, with the amount an increasing function of the wealth of the stealer and the prowess of the husband, a decreasing function of the prowess of the stealer. There being no government to enforce the law, the threat that backed the demand was the private use of force. Pay or I’ll kill you.
Carrying out that threat was neither desired nor likely, since if the husband killed the stealer (or vice versa) the victim’s kin would take revenge by killing the killer. The intended result of the threat was to set off the game that economists call “bilateral monopoly,” a bargaining game in which the parties have a common interest in a peaceful resolution of their dispute but a conflict over the terms, in this case over how much will be given in compensation to the wronged husband.
What if the stealer was clearly the more dangerous man of the two—not unlikely, since a prudent man in search of status would prefer not to steal from too able a husband? The husband had the option of calling in his brothers or other kin to support his threats. The stealer, having set off the conflict in order to prove his status, had no such option—asking for help would be to admit that he had bitten off more than he could chew, and besides, he was on what everyone saw as the wrong side of the (unwritten) law. So at that point the stealer backs down and agrees to pay substantial damages, which damages are collected not by the husband but by his helpers.
Suppose the husband had no brothers? His option then was to find a champion, a brave, generous, well thought of warrior willing to take over the case and face down the stealer. This time the damage payment went to the husband. The champion’s payment was the status gained by his willingness to risk himself in defense of the right and his success in forcing another warrior to back down. Much the same pattern appears in some of the Icelandic sagas, where a bully who relies too heavily on his and his friends’ strength to let him violate the rights of weaker men is brought down by someone still more formidable out to establish his own status.
On Athenian juries:
Each year, 6000 jurors were selected by lot from those who volunteered; the only qualification was being a male citizen and at least 30 years old. The size of the jury for a case varied over time and according to the nature of the case, but seems usually to have been about 500. Jurors were paid 1/2 drachma for each day they served, about half the wage of a rower, so jury service provided a sort of low end welfare.
More on Athens:
The ordinary procedure was for the case to be privately prosecuted by any male citizen who chose to do so. If prosecution was successful and led to to the defendant paying a fine, the prosecutor would, for many but not all sorts of cases, receive a substantial fraction of the fine, sometimes as much as half, as his reward. Similarly, if the case was based on the claim that the defendant was holding property that properly belonged to the state, a successful prosecution would result in half of the property forfeiting to the state, half to the prosecutor. Such a system raises the risk of suits against defendants believed to be rich, unpopular, or both—whether or not they have broken any laws. One solution was a provision of the law under which a prosecutor who failed to get at least a fifth of the jurors to vote for conviction was himself fined, as well as barred from any future suits of the same kind.
Still on Athens:
The victim of theft was was entitled to get back both his stolen property and a sum equal to twice its value. We worry about police planting drugs on a suspect in the process of search; the Athenians worried about a private party planting his own property on someone in order to accuse him of stealing it. They had a simple, solution. The accuser was allowed to search the house where he suspected his stolen property was hidden. But he had to do it naked.
And my favorite section on Athens:
The Athenians had a straightforward solution to the problem of producing public goods such as the maintenance of a warship or the organizing of a public festival. If you were one of the richest Athenians, every two years you were obligated to produce a public good; the relevant magistrate would tell you which one.
“As you doubtless know, we are sending a team to the Olympics this year. Congratulations, you are the sponsor.”
Or: “Look at that lovely trireme down at the dock. This year guess who gets to be captain and paymaster?”
Such an obligation was called a liturgy. There were two ways to get out of it. One was to show that you were already doing another liturgy this year or had done one last year. The other was to prove that there was another Athenian, richer than you, who had not done one last year and was not doing one this year. This raises an obvious puzzle. How, in a world without accountants, income tax, public records of what people owned and what it was worth, do I prove that you are richer than I am? The answer is not an accountant’s answer but an economist’s — feel free to spend a few minutes trying to figure it out before you turn the page.
The solution was simple. I offer to exchange everything I own for everything you own. If you refuse, you have admitted that you are richer than I am, and so you get to do the liturgy that was to be imposed on me.