[with apologies to the real Legal Systems Very Different From Ours. See also the List Of Fictional Drugs Banned By The FDA]
The Clamzorians are animists. They believe every rock and tree and river has its own spirit. And those spirits are legal people. This on its own is not unusual – even New Zealand gives rivers legal personhood. But in Clamzoria, if a flood destroys your home, you sue the river.
If you win, then the river is in debt to you. The government can assign a guardian to the river to force it to pay off its debts, and that guardian gets temporary custody of all the river’s property. He or she can collect a toll from boats, sell water to reservoirs, and charge rent to hydroelectric dams. Once the river has paid off its debt, the guardian is discharged, and the river becomes free to use once again.
Clamzorian precedent governs when you may or may not sue objects. If you swim in the freezing river in the dead of winter, and catch cold, that’s on you. But if a hurricane destroys your property, you can absolutely sue the wind for damages, and collect from windmills. Suits against earthquakes, volcanoes, and the like are dead common. Suits against diseases happen occasionally. Sometimes someone will sue something even more abstract – a custom, an emotion, a concept.
Legend tells of a lawyer who once sued Death itself for wrongful death, a class action suit on behalf of everyone who ever lived. The judge found in favor of the plaintiff, but the appointed custodian despaired at ever collecting the judgment – the few morticians and undertakers in the realm couldn’t afford even a fraction of the damages. In a stroke of genius, he went after the military, and charged them for the right to kill enemy soldiers. The military grumbled, but eventually gave in: fair is fair.
Fixed fines are inherently unfair to the poor. If you fine people $50 for running a red light, you’ve charged someone who makes $10,000 0.5% of their income, but someone who makes $100,000 gets off with only 0.05% of their income.
But prison sentences are inherently unfair to the rich. After all, if you already live in a crowded slum much like a prison cell, and your life is prison-level boring and oppressive already, then going to prison barely costs you anything. But if you live in a mansion and spend all day indulging in the finest luxuries on offer, going to prison is a massive decrease in your quality of life.
The people of Pohjankaupunki thought long and hard about this problem, and came up with a solution: crimes will be punished by neither fines nor prison. They will be punished by government mandated prescription of rimonabant, a prodepressant medication which directly saps your ability to feel happiness. Running a red light may get you 5 mg rimonabant for a month. Murder may get you 80 mg rimonabant twice a day for ten years.
There is no capital punishment in Pohjankaupunki, but if a criminal decides to commit suicide rather than continue to take their medication, they are considered to have voluntarily upgraded to the death penalty, and their debt to the state has been repaid.
Sloviria is an enlightened country. They do not blame criminals for their actions. They realize it is Society’s fault for making criminals that way. So when someone commits a crime, they punish Society.
Sloviria is very technologically advanced, with plenty of social networking sites and GPS tracking of cell phones and all the other systems that create a nice objective social graph. When someone commits a crime, the government lets them go free, and punishes everyone else, in proportion to how close they were to the offender on the social graph. If the punishment for a certain crime is a $1000 fine, perhaps each of their parents and their partner pays $200, their boss and best friend pay $100, some of their teachers a few tenners each, and more distant friends and relations a few dollars or less. If a friend of a friend who you met at a dinner party once commits murder, you may be out a couple of cents.
This isn’t to say perpetrators get off scot-free; Sloviria isn’t that enlightened. The punishment for perpetrators is that nobody wants to interact with them, for fear that they might perpetrate again. Once a person is a known criminal – or a suspected criminal, or just the sort of person who seems like they might become a criminal – their friends, families, and business relations shun them, trying to minimize their potential loss. This threat alone is enough to discourage crime and every form of crime-adjacent misbehavior.
The Slovirian Radical Party is even more enlightened than Sloviria as a whole, and opposes social punishment. They believe that such punishment prevents rehabilitation, since criminals and at-risk youth find it impossible to make the connections they need to succeed, and are forced to hang out with other people as criminal as themselves. They propose a complete inversion of Sloviria’s justice system; when anyone commits a crime, the people closest to them are rewarded. They envision a future where, once somebody shows any sign of being at risk for antisocial behavior, they are love-bombed by dozens of people hoping to get rich off their acquaintance, people who want to employ them, adopt them, date them, or just serve as mentors and parental figures. But wouldn’t all these people encourage the potential criminal to offend? The Radicals debate this among themselves, with one solution being that this could just be a perfectly normal crime punished by jail time.
Nova-Nishistan’s legal system is based on blackmail. It’s not just blackmail. There are courts and jails and so on. But few people use them. If you have evidence that someone committed a crime, you are expected to threaten to report them unless they give you money.
The system has many advantages. The person most likely to have evidence of a crime is the victim. The victim can choose how much money they want as damages, and have a good chance of receiving it. Fines are automatically calibrated to the wealth of the victim, so poor people are not stuck with debts that are impossible to pay. If a crime is victimless, or the victim chooses not to prosecute, any other witnesses are incentivized to take up the cause of punishing the wrongdoer of their own initiative. Few crimes make it to the courts or prisons, so everyone is assured a speedy trial and an jail cell free of overcrowding.
In order to maintain their system, the Nova-Nishistanis need many laws related to blackmail itself. One of their most serious crimes is to blackmail someone, receive the requested ransom, but report them anyway; anyone convicted of this will be in for a lengthy prison sentence. Indefinite blackmail – “pay me $100 now, but I might ask for more later” – is forbidden. So is non-monetary blackmail; too easy to abuse. There are a host of similar regulations.
One regulation they don’t need is laws about retaliating against blackmailers. You might expect this to be a problem – blackmailing the mob sounds pretty scary. But there are lots of individuals, companies, and (let’s face it) rival gangs happy to provide dead-man’s-switch-as-a-service. Tell them your secret (which they promise not to disclose without your consent), and if anything happens to you, they prosecute it. Even better, if anything happens to you, they’re almost guaranteed to investigate your death, since their special evidence gives them a leg up in what could be a very lucrative blackmail case.
Of course, this only works on people who are rational enough to respond to incentives. If someone is a complete unpredictable psycho, you probably don’t want to try blackmailing them, even with a dead-man’s-switch as insurance. But these are probably the people who should be in jail anyway!
The people of Bogolia thought it was unfair that rich people could hire better lawyers than poor people. But they didn’t want to take the authoritarian step of banning rich people from buying good lawyers, if they thought skilled representation was important. Instead, they just mandated that in any legal case, both sides had to have equally-priced counsel. A rich person could hire as expensive a defense attorney as they wanted, as long as they donated an equal sum to the plaintiff to hire star attorneys of their own. You could sue someone with as highly-priced an attorney as you wanted, but you needed to give them the same amount to spend on their defense.
(this rule applied to the state too, and so implied the right to a public defender worth however much the state was paying to prosecute you, even if you were poor and couldn’t otherwise afford one)
Some trolls tried launching hundreds of frivolous lawsuits against companies they didn’t like, assuming that the company would have to pay both sides of the lawsuit and eventually go broke. They were punished through the normal anti-frivolous-lawsuit rules, and it turned out that companies that did not go broke having to pay one side of a lawsuit don’t go broke having to pay both sides either.
But there were some weirder unintended consequences. How good a lawyer to get became a highly strategic decision for rich clients facing poorer ones. If you thought you were in the right, you’d get a good lawyer, since two equally good lawyers facing off will likely produce truth. If you thought you were in the wrong, you’d try to get a crappy lawyer, since then your opponent would also have a crappy lawyer, and two crappy lawyers facing off will likely produce random results. Not paying for a good lawyer started to be seen as an admission that one’s case was weak.
But also, lawyer salaries started to get wacky. If a random criminal hurt a rich person somehow, and the rich person hired a good lawyer, the random criminal might receive tens of thousands of dollars to spend on legal advice. But random criminals generally are not savvy at evaluating lawyer skill, so thousands of predatory lawyers sprang up, willing to cater to these people by looking impressive and accepting very high salaries. For the savviest of political operators, an equal and opposite caste of underpriced lawyers sprang up, who would accept very low pay in exchange for vague social credit to be doled out later. More and more political scandals started to center on prestigious lawyers defending politicians for free in exchange for favors, and so depriving the opposing party of their right to equally-matched counsel.
Finally the authorities handed down a change to the system: the plaintiff and defendant would agree on two lawyers to conduct the trial. Then the judge would flip a coin, and one of the two would be assigned at random to each party.
Sanzorre accidentally became an anarcho-capitalist state under the dominion of malpractice insurance companies.
They started off by insuring doctors. Doctors know a bad malpractice case could ruin them. And although being a good doctor helps, it’s not 100%. Even the best doctor can get unlucky, or have somebody with a grudge fabricate a case against them. For that matter, even very bad doctors can get lucky and never have to deal with a case at all. So doctors have malpractice insurance, and if they seem to be practicing medicine badly their insurance company will raise their premiums.
This worked well enough that other industries started adopting it too. If a factory’s pollutant byproducts got discovered to cause cancer ten years later, their industrial malpractice insurance would pay for it. If someone slipped and fell and broke their back on a restaurant floor, their restaurant malpractice insurance would pay for it. Of course, these insurance companies worked closely with factories to monitor how many they were polluting, and gave discounts to restaurants which followed best practices on floor cleaning.
Finally, they branched out to serving ordinary people. If you accidentally hit someone’s dog with your car and got sued for damages, better to have a personal malpractice insurance pay them than get hit for tens of thousands of dollars yourself. Having malpractice insurance became to Sanzorrians what having health insurance is to Americans – a necessity if you don’t want to court disaster.
The plaintiffs in all these cases were usually being covered by lawyers who took contigency fees. But as malpractice insurance companies became better at their jobs, the contingency fees began to dry up. Finally, lobbyists from the insurance companies got contingency fees banned entirely. This presented a dilemma for ordinary people with grievances against bad actors. Thus the rise of the grievance insurance.
If you suffered harm from a doctor’s medical error, and had grievance insurance, the insurance company would pay the cost of the malpractice suit. If you were poisoned by industrial runoff, the insurance company would pay the cost of suing the factory. Grievance insurance soon became as essential as malpractice insurance. Without it, you wouldn’t be able to stand up for your rights.
Like malpractice insurance, grievance insurance was only available cheaply to people who agreed to avoid risks. If you wanted to be able to sue for malpractice, you had to avoid going to quacks. If you wanted to be able to sue factories for pollution, you couldn’t live right next to a coal plant. Gradually, grievance insurances placed more and more restrictions on people’s behavior, and people generally complied.
As malpractice insurances incentivized potential defendants to avoid actions that could harm others, and grievance insurances incentivized individuals to avoid risk, the number of lawsuits gradually got fewer and fewer. Those that happened were generally settled between malpractice insurers and grievance insurers, without ever having to go to court, and sometimes with both companies changing their policy to avoid repeats in the future. Soon, even this formality was eliminated – each malpractice insurance company paid a negotiated amount to each grievance insurance company each year, and the grievance insurance company paid complainants from its own bank account as per its own policies whenever they complained.
It wasn’t quite full anarcho-capitalism. The state still intervened in a few very serious crimes, like murder. But the insurance companies had replaced the civil courts and the regulatory apparatus, and controlled every aspect of doing business.
Modern philosophy says that formal systems are bunk. The dream of reducing the complexity of reality to some mere set of rules is a childish desire reminiscent of the fascists and high modernists of the early 20th century. Enlightened thinkers realize that we need a Kegan 5 type fluid ability to transcend systematicity. So the people of Mirakoth don’t have laws. They’re just supposed to not do bad stuff.
If someone in Mirakoth thinks someone else did something bad, they can bring it before a council of seven judges. If a majority of the judges think it was bad, they can assign whatever seems to them like fair punishment. If the loser appeals, it goes to a larger council of forty-nine judges. If they think it was bad, it was bad. These judges are under no obligation to follow precedent or any particular philosophy. They’re just supposed to be in favor of good stuff and against bad stuff.
In order to prevent people from seeking out judges who agree with them, each case is assigned seven judges at random. All cases are tried by videoconference, to make sure the judge pool is unlimited by geographical mobility. If the judges think a case is frivolous, they can choose to punish the person who brought the case.
Doesn’t this create such paralyzing uncertainty that nobody knows if they can do anything at all? Not really. Controversial cases are more likely to go to the full 49 judge panel. If an opinion is only held by 20% of judges in the country, then there’s only about a 1 in a million chance that the panel will rule in favor. Even if the opinion is held by 40%, it’s still only an 8% chance of winning. So just don’t do things that more than 40% of people think are bad, and you’ll be fine!
Serious question. If you kept someone on Rimonabant for a while and then cut them off, might they go through withdrawal and be unusually happy and satisfied with life? If you had someone on it and gradually ramped up the dose at the limits of tolerance (the way opioid or meth addicts sometimes do) could you fry out the ability to be unhappy the way recovering meth addicts can have fried out the ability to enjoy ordinary life?
I suspect that this argument originates from folks who want to justify fining the rich billions of dollars as a revenue-generation method, since otherwise it doesn’t really past muster.
Suppose that if you run a red light you have a 1% chance of killing someone, we value the average life at ten million dollars, and there is a 0.5% chance of getting caught. Well then the fine has to be at least $500 or it’s unfair to society, because the perpetrator is taking more risk with other peoples’ lives than they’re paying for. It doesn’t matter if you’re rich, poor, black, white or polka dot, society needs you to be deterred by at least that much.
Suppose also that the value of a life is the same amount it costs to save the marginal life — because in all the cases where it costs less than this we should already be doing it, right? But there will be borderline cases, where having better emergency services or more medical research or safer cars or something like that would save a life given ten million dollars in funding. Well then the fine shouldn’t be any more than $500 either, because we’re actually better off to not deter them, take their money and use it for those things than to buy any additional deterrence with the money that could instead have saved more lives by funding those things.
So not using fixed fines is unfair to society. But this also implies that prison is unfair to society for the same reason — a rich person may value not going to prison at millions of dollars (and having them in prison may cost society that much in economic productivity and tax revenue), while a poor person values not going to prison at only hundreds of dollars. When the amortized cost of a crime to society is the same no matter who commits it then prison may be inefficiently over-deterring the rich and under-deterring the poor. And indeed this is what we see — the poor commit more crimes.
Prison is also inefficient because society doesn’t get anything from it. If you commit a crime and pay a $500 fine, other people get $500. If you commit a crime and go to prison, other people don’t get anything, they in fact lose any surplus from any productive activity you might have engaged in while not in prison, and then they have to pay to imprison you. This kind of implies that prison is dumb and we should get rid of it.
You might want to take a look at an old article of mine on the subject, “Reflections on Optimal Punishment or Should the Rich Pay Higher Fines?” There is a link to it on the academic page of my web site.
I Googled “Kegan 5 type fluid ability to transcend systematicity” and went down quite a fascinating rabbit hole. Now I want to read Kegan’s “In Over Our Heads: The Mental Demands Of Modern Life”. Can someone link to interesting commentary from either Scott Alexander or elsewhere that is rationalist or rationalist-adjacent?
about Pohjankaupunki… does the prodepressant work in precentages as well? cause it s sounds like 5 mg of the drug for everyone is unfair based individual’s baseline happiness. If you are super happy most of the time then you’ll get a little less enthused, but still able to go to work and socialize. If you are already pretty darn unhappy, you might be on some tipping point of ruining your life.
in other words… unhappiness isn’t necessarily linear with mg of the prodepressant. And that’s exactly what the scholarly legislators of Pohjankaupunki had attempted to fix in the first place X:
I highly expected the last line of Sanzorre to be “some citizens still complained that this was minarchist, not true anarchist.”
Huh. I wrote a short story ages ago about a hypothetical qualified-voter democracy. I expect anyone who reads this blog will recognise the qualification system.
You left out the Gowachin! (From Frank Herbert’s The Dosadai Experiment.)
Almost everything in your insurance example already exists in the USA. Liability insurance is normal for businesses to cover the possibility of legal damages, and insurance that pays you for harm then goes after the responsible party is a normal part of property/health/etc insurance
Sloviria’s system is obviously an updated version of the legal institutions of Arabic and Somali law, taking advantage of the more elaborate categorization of relationships made possible by modern technology. Under Arabic law, each individual is a member of an ‘Akila, a kin group whose members have to share in paying the diya for an offense he commits. The Somali have a more libertarian version — their diya-paying group is defined by voluntary contract, although in practice largely based on agnatic kinship.
Mirakoth’s legal system is presumably an offshoot of Imperial Chinese law, where someone who committed an offense that the ruler had failed to write a law against could be convicted of doing what ought not to be done or of violating an Imperial decree — not a decree the Emperor had actually made but one he would have made had the question occurred to him. It probably developed under the influence of the Confucian view that people ought to know right and wrong without instruction from the legal system, from which it followed, in the view of some, that the legal rules should not be published.
Pohjankaupunki’s system is just a modern technology version for softies of the standard punishment system of many societies — corporal punishment. Fifty blows of the light bamboo hurt a rich person as much as a poor. It’s unfair to the degree that people vary in their sensitivity to pain, but a similar problem exists, as Deiseach has already pointed out, with the version you describe.
I don’t know of any real world examples of the Nova-Nishistan system, but you can find the idea of blackmail as a form of private enforcement in an old essay by Walter Block in defense of blackmail. For some ideas along the general lines of the legal system of Sanzorre, see Chapter 9 of my Law’s Order.
I am a little puzzled by your description of the Clamzorian system, however. If a river is a legal person it should not only be subject to tort law but have property rights. How do the ferry boats, hydroelectric dams and such get the right to make use of the river for their own profit without its permission?
Perhaps an implied permission- if the river objected, surely it would say so. Perhaps also that means that accidents occurred while using the personage’s self/property are evidence of it’s displeasure, and proof-positive that it denied the right of usage! I sense a contradiction.
Isn’t it broadly similar to 18th century England? It was the one in this post that I found the most familiar to one from your book.
I came here looking for a DavidFriedman comment explaining that some of these were real legal systems. I was not disappointed.
I’d guess that depression is less strongly correlated to socioeconomic status than familiarity with violence. That system may end up being “progressive,” in that people who were harshly punished or physically abused as children, who routinely get into fights as adolescents and adults, will experience a dramatically lighter punishment than someone who has until now been in peaceful environments.
I’m reminded of the North Korean secret police torture device in The Orphan Master’s Son, which used a control loop to balance the victim’s vitals at a target level. As he started to lose consciousness, it would back off. As he recovered and calmed down, it would turn the intensity back up. Here the purpose was to maximize the suffering actually experienced, but you could imagine a similar mechanism to achieve the same level of subjective discomfort across victims.
I’m interested in the nominative determinism of these stories.
Pohjankaupunki is Finnish for “The North Town,” and fittingly justice is accorded by happiness negating pills. Perfect for grim northerners.
Is there a secret behind the other place names?
It also works as a pun where “pohja” means “bottom”, which makes it a nice name for a dystopia with a horribly misguided legal system. Or even just a city physically on the bottom of, say, the sea, but you’d have to have a very silly sense of humor to use the name like that.
Pohjankaupunki is super dystopian. For starters, their drug-based solution doesn’t actually solve the unfairness problem, the unfairness is just now aligned along strong-support-system vs weak-support-system instead of rich vs poor (which in practice probably isn’t much different). But the deeper problem is that the justice system shouldn’t only be about punishment (actually, Sloviria makes this mistake too). It should be about righting wrongs. Drugging people doesn’t discourage recidivism (except in extreme amounts), it doesn’t rehabilitate anybody, and it doesn’t compensate victims. The real world is already too eager to focus on punishment; we don’t need to throw away any pretense of caring about other factors.
Sloviria is quite interesting. The plain version is also dystopian. On top of missing the whole “justice isn’t about punishment” thing above, they also miss that sometimes crimes are committed against society, so it’s already pretty punished. Imagine a scenario where a man beats his wife and she then gets charged $1000 for it.
I like parts of Radical Sloviria. In the real world, it can be hard for ex-criminals to find support from anyone but underpaid social workers and volunteers. In vanilla Sloviria, it’s even harder, since only the truly altruistic would risk the punishment. But in Radical Sloviria, it’s probably a legitimate career choice. Sure, the field would become less altruistic, but I think greatly expanding the talent pool would amost certainly make up for it (i.e. a kind of bad social worker is on average better than none at all). But there’s no getting away from the whole “no disincentive to commit crimes and enrich your friends” thing. I really doubt most people would be clamoring to befriend the criminally inclined, in part because I don’t think people change their social groups that easily, but mostly because it’s easier and faster to just grab a couple cans of spray paint and commit crimes with the friends you already have.
If 5 people witness a crime, does the perpetrator need to pay off all 5? What if they pay off 4, and the 5th reports it?
See also Erewhon by Samuel Butler.
The traveler observes that everyone he sees appears remarkably contented and cheerful. Later he learns from his hosts that illness and misfortune are forbidden by law, and if violators are discovered they are put on trial, where the only kind of plea that can avert punishment is a convincing declaration that the alleged misfortune is really a blessing in disguise. He attends such a trial, where an accused widow is acquitted because she has insured her late husband’s life for a large sum that will enable her to live in comfort.
Misbehavior, on the other hand, is viewed as a disease requiring compassionate treatment from a member of a profession known as the Straighteners.
If somebody has the sniffles, he naturally wants to stay at home to avoid discovery, and he may decline his engagements with the white lie that he has “stolen a pair of socks”, and therefore can’t go out till he has completed the cure prescribed by the Straightener.
“This worked well enough that other industries started adopting it too. If a factory’s pollutant byproducts got discovered to cause cancer ten years later, their industrial malpractice insurance would pay for it. If someone slipped and fell and broke their back on a restaurant floor, their restaurant malpractice insurance would pay for it. Of course, these insurance companies worked closely with factories to monitor how many they were polluting, and gave discounts to restaurants which followed best practices on floor cleaning.
Finally, they branched out to serving ordinary people. If you accidentally hit someone’s dog with your car and got sued for damages, better to have a personal malpractice insurance pay them than get hit for tens of thousands of dollars yourself. Having malpractice insurance became to Sanzorrians what having health insurance is to Americans – a necessity if you don’t want to court disaster.”
This is essentially the system that is in effect in the U.S. today. Instead of malpractice insurance, it is called Comprehensive General Liability (CGL) insurance, Product Liability insurance, Environmental Impairment Liability insurance, Automobile Liability insurance, Homeowners insurance, etc. An insurance broker or corporate risk manager could explain how the system works if you have a few hours.
Thank you for this, as I was reading it I thought “surely this exists already”, and now I am validated. Something like grievance insurance exists as well (under the name “legal expenses insurance”), although it’s not as widespread. But I don’t think they interact.
I get the sense that for some (many?) types of insurance, the rules about the insured’s behavior sit there sneakily in the fine print until they can be deployed to deny a claim. Insurance companies fail to be de-facto lawgivers because the probability of getting caught doing something “illegal” and needing to make a claim is so low that most people ignore it.
The Mirakothian system is repugnant to all right thinking lawyers. However a system where we there are mad rules about permits you have to have (which nobody does) and which are only enforced against people who ‘do bad stuff’, well we are fine with that.
I believe that’s called the New Jersey system. As opposed to the Chicago system, where the mad rules exist but in practice the permits are purchased. Or the New York system, where there’s a hybrid where there are mad rules which actually have to be followed to purchase the permits.
But this is getting a little too close to reality.
If you’d like to read some good SF set in a world with a system similar to Sanzorre’s, check out L. Neil Smith’s The Probability Broach.
If someone slipped and fell and broke their back on a restaurant floor, their restaurant malpractice insurance would pay for it.
But how is that different from ordinary practice? After all, a restaurant is not a cleaning service. I could understand “if you get food poisoning or if you hire them to cater a function and the food is bad and service is terrible” as those are the specialities of restaurants so “being bad at cooking food” would be malpractice. But as it stands, if you slip and fall in a public place like a restaurant or shop or street, you can go ahead and sue under public liability insurance.
They’re just supposed to not do bad stuff.
But who decides what is bad stuff? Public opinion? That changes over time, so your granny could have been punished for something that you can do perfectly freely and legally. Is that fair, and if not, does that get punished in its turn? What’s the difference between “no, this is really bad by any measure, but that is ‘bad’ merely means it’s unpopular or unusual or a matter of different tastes (e.g. is a dog a pet or a fur baby and how you treat them accordingly)”.
Your objections to the Mirakothian system would seem to apply equally well to all other systems of law. E.g. I believe that the laws regarding blasphemy, abortion, discrimination and hate speech have changed quite a bit from when my grandmother was young – with no punishment for earlier legislators.
This is especially true in common law systems.
The judges decide, that’s the point. Presumably their rulings roughly track with public opinion (assuming judges are reasonably representative of the general population). The fact that you’d end up with some inconsistent rulings isn’t really a criticism — the guiding philosophy, if I understand it right, is that total moral consistency is impossible anyway. If you said that to a Mirakothan, they’d probably reply that your society’s idea of right and wrong change over time as well, and your legal system is inconsistent with your moral system in places — the big difference is that the Mirakothan judges are always free to choose the good option, whereas your judges can be forced to pick morally repugnant options in unanticipated situations.
This isn’t necessarily an endorsement of Mirakoth, by the way. I don’t know if any of these places would be a very good place to live.
1. Very interesting and fun read
2. Exercise for the reader: identify the country or economic sector where something like each of these systems exists in real life, and the resulting massive dysfunction which is hard to see from an intellectual exercise
In Tudor England, if you worked at it, you could get a majority of Members of Parliament to just pass a law saying “that was a bad thing” or “that guy’s a bad guy, let’s whack him”.
The problem is that the actor most able to swing this is the king. It got so egregious that Americans built a clause into their new constitution saying “let’s never do that”.
So they use Dementors for punishment? I thought that practice was frowned upon for being inhuman.
It is at least egalitarian – everyone becomes equally miserable, regardless of their previous level of wealth!
Maybe Azkaban isn’t so crazy an idea after all…
Misery is one thing, consuming souls as a legal punishment is usually one of the signs you’re no longer working with the good guys.
I think that system gives us depressed people an unfair advantage – “Ha! You want to reduce my happiness levels for that parking ticket? Well then you’ll need to give me anti-depressants to raise me to the level of mild misery appropriate to the crime!”
We might be able to get away with everything except murder under such a system 😀
I’ve actually been promoting Bogolia for a while, though not with a full 100% payment, with 20% or so; my theory is that lawyer performance is sublinear with regards to money. I figured you could maybe solve the whole working-for-free thing by calculating it based on the lawyer’s average wage over the last year, with fraud laws aimed at lawyers trying to play silly games with their wage.
I like the choose-two-lawyers idea, though it does run into the problem that lawyers are no longer able to specialize in prosecution or defense.
Of course, the nonspecialization thing could have some hidden benefits too. To paraphrase Terry Prachett, a really good ratcatcher might get even better if he spent some time as a rat. There are some jurisdictions in the country (primarily big coastal communities) where working for the prosecution at any point in your life makes you de facto ineligible for work in, say, a public defenders office…and I personally think that’s a shame.
Bogolia does seem like one of the less-bad ideas. I think formalizing the role of law firms could help solve the problem you pointed out. Either (a) decide on two firms and flip a coin; those firms then assign specific lawyers. Or (b) decide on a single firm that assigns a lawyer to both participants, forgoing the coin flip entirely.
I like (a) better because (b) is potentially exploitable (since firms could have a reputation for being better at prosecution or defense, unbeknownst to the poorer participant).
The only downside is that all lawyers would have to be part of a firm. This doesn’t sound too bad to me, but then again I’m not a lawyer.
The biggest problem with Bogolia is the potential conflict-of-interest issues that come up when someone is paying for your representation…the interests of the payer and the client are not always in alignment…particularly if the client might want to settle! (IRL this happens when like, an eccentric billionaire hates a company and you have standing to sue that same company)
Lawyers are generally pretty good about navigating this stuff…but even in non-bogolia, lawyers can wind up in pretty unexpected conflicts. Consider what happens here: Peter Poorperson sues because the Bogolian government performed an unconstitutional search of his laptop at the border and found government secrets (a bogolian felony punishable by 30 years in bogolian jail). The government wants to win the case so they sink tons of money into this prosecution…and consequentially peter gets a slick defense attorney, who fights the search tooth and nail. Eventually, after like 3 years of litigation the government, now afraid they’ll lose the argument, offers to let Peter plead to a far lesser charge (sentence: time served) rather than drag the case on for another 2-3 years before trial even happens.
IRL, Peter’s lawyer is either a public defender, who lacks the same financial incentives to keep fighting…or a slick defense attorney whose paycheck is at least limited by what Peter can pay. In Bogolia, peter’s attorney has a pretty strong incentive to keep on fighting for endless amounts of time, at some risk to Peter. Even if there’s a 5% chance peter loses the argument…the risk is huge, and its a risk Peter’s lawyer has a strong incentive not to advise Peter about.
Sorry that should be “peter poorperson moves to suppress evidence” not “peter poorperson sues”…I changed my hypo from civil to criminal because I thought it made things clearer, but forgot to change the most important verb :)))
Interesting point! Maybe this could be solved by going through firms as well. Say the firm/firms involved get money by the case, but each lawyer only makes a flat salary (based loosely on successfully winning/settling cases, improving the firm’s reputation). Then again, maybe this only pushes the perverse incentive one level back. It depends on how hands-off the firm is required to be.
Firms are indeed expected to sorta self-police. So there are strict ethical rules about firms profit-sharing with nonlawyers…this is why you don’t see Amazon or Best Buy or whatever expanding into the legal services market…the idea is that lawyers have some unique talent or training that helps them to put the client’s interest before their own bottom line, so if your boss and your boss’s boss are also lawyers, you get less perverse incentives than if, eventually, the chain of command runs through a nonlawyer.
I’m kinda hyperattuned to this sort of conflicts analysis right now because I just took the MPRE, the ethics exam that lawyers have to take.
Here’s a nonethical problem in Bogolia: there’s a stronger incentive to make bad precedent. Let’s say I’m a prosecutor and I catch a small time crook using a technique of dubious legality…perhaps I trace his cell phone without a warrant or something. In Bogolia, as we see above, I have an incentive to put my worst, lowest paid intern prosecutor on the case. The other guy gets a bad lawyer, everyone makes a mess, and there’s like a 50/50 chance we win…but then we create precedent that you can track someone’s cell phone without a warrant.
Maybe Bogolia isn’t as precedential as our own justice system is, but THAT gets weird too. Now the judge says “yeah, yeah I know last week we said you don’t need a warrant for that kind of investigation but it turns out you do. Who knows what next week will reveal, maybe I’ll change it back again. It all depends on who you get as your lawyer.”
That was fun, the medical insurance overlords was especially interesting.
But… on the last one, I think you made a minor math error.
“Doesn’t this create such paralyzing uncertainty that nobody knows if they can do anything at all? Not really. Controversial cases are more likely to go to the full 49 judge panel. If an opinion is only held by 20% of judges in the country, then there’s less than a 1 in a million chance that the panel will rule in favor.”
I computed about a 1/773017 chance, which is a bit more than one in a million. (or did I flub the math?)
“Even if the opinion is held by 40%, it’s still only an 8% chance of winning.” I get similar answer for that, though, (specifically, about 7.776%)
Thanks, Scott. I enjoyed this a lot.
The Sloviria section gave me chills because I remember reading that several real-world states do punish families for the perceived sins of members– especially political sins. North Korea is definitely one. I think there are some aspects of that in modern China, but I’m less sure about that one.
Certainly true in Imperial China for the most serious crimes.
Anyone else think this post was thought up by Scott, a doctor, to mess with us attorneys? I mean, we have been commenting on his profession without insider knowledge for months now, why can’t he get in on it?
Of course, example #5 is the one that prompted me to this theory.
This is very much how the system already (sorta) works. The hourly rates of attorneys are very much unrelated to quality, and there are dozens of examples of high prestige positions that are rewarded later (Clerk for a Federal judge).
My favorite type of post – especially being in law myself. How fascinating.
Goblinpunch has two excellent articles (#1 and #2) on weird fantasy government structures in exactly this vein. Such as Kleptocracy:
It probably says something about me that my first thought was that as a crown owner screwing the thing to your own skull is a completely logical thing to do to prevent theft. It makes it such that there’s no way of removing the crown from your person without spilling blood, invalidating the transfer of power.
Ribias IV inherited his dukedom from his father, following Rabias III’s unsuccessful heist against a silver dragon with little cultural appreciation for Shangrilorean values. A spoilsport bureaucrat with nary a fletching pinky, Ribias had even less cultural appreciation than the dragon and wanted no part in succession tomfoolery. He recruited the finest surgeon in the land to screw “the blasted thing” into his head, announced the deed and how futile it’d be to remove the damn thing without killing him and you couldn’t even get past his guards etc., so please leave him out of this whole nonsense thank you very much.
…After getting Ribias thoroughly sloshed following a series of seductions, guard misdirection/replacements and various other heist shenanigans, Baron Dirret and her team got to work with the files. With utmost patience and precision (and a few Cure Light Wounds when those were absent), they freed the crown from the duke’s head. But they couldn’t rest yet, for the new Duke still had to attach the replacement “crown”…
This feels vaguely reminiscent of the Talmudic system where each litigant selects a judge (lawyers having not yet been invented), those two judges select a third judge, and those three judges become a court.
The plaintiff selects two legal experts; the respondent selects one of them and decides whether they are the judge or a litigator, and if a litigator which party they represent. The plaintiff assigns a role to their other expert, and then the respondent selects a legal expert for the final role?
I sue you and select two legal experts who are both biased in my favor. If you assign one of them to be the judge, you lose. If you assign one of them to be a litigator, I assign the other to be the judge, and you lose.
Lawyers were definitely invented by then. Emperor Claudius permitted legal advocacy in the first century. But they were known for twisting the truth in order to deceive judges, not for defending on the facts. Presumably this Talmudic system thought that judges were more honest and reputable than lawyers. The two judges from each side would have enough consensus between them to agree on a third judge and then to agree on the majority ruling, even when the parties could not agree on such things.
Gosh, you don’t say?
Funny enough this is the standard way of choosing a three-member panel in arbitrations, too.
As cars become more and more network-enabled and GPS capable, I have fantasized that one end game to speeding violations would be that the police could just remotely tag any car they see going 1 mph over the nominal limit with a violation, on the fly, without need for a stop. But the recipient of any such violation would be able to pass the ticket on to anyone they see going any faster than the ticketed speed (if such a speed were illegal in the given circumstance). In such a way, all speeding tickets would accumulate with the individuals who were most egregiously violating the law.
But can you tag a police vehicle?
Only if they have their siren off!
Nova-Nishistan sounds like it ought to be in the drug list (second part not pronounced nish-i-stan, but nis-his’-tan)
I think the US may actually be proto-Sanzorre.
Sloviria, Nova-Nishistan, and Sanzorre sound a bit like Robin Hanson’s (overcomingbias.com) private enforcement mechanisms- bounties and liability insurance.
There’s a perverse incentive here for anyone, or group of people, who knows how this payment scheme is set up who doesn’t work for either type of insurance company.
I presume the grievance insurance companies do some minimal verifying of the grievance before paying out. Either that or collecting the funds are as difficult as it is with some medical insurances.
Mirakothan judicial “election” could be via quizzes that lump judges into good/evil “types”, and sortition from these pools of types. Though I wonder what kind of society that would make? Would this encourage limiting what is considered socially acceptable more and more over the years?
While I like elements of the Clamzorian legal code, it’s going to seriously disincentivize technological progress.
The only problem I see with the Pohjankaupunki legal code is that it doesn’t evaluate how the person themself feels about what they did (or how they feel at all). If the person is very depressed because they’ve committed a crime (unintentionally), and then you add a depressant on top of that pre-existing depression, you’re being exceptionally cruel.
As a counter to the potential for a spiraling limitation of freedom inherent in the Mirakothan legal system it might be worthwhile requiring a super-majority to punish (not convict – conviction should probably remain separate from punishment).
It would probably take some trial-and-error (pun intended) to determine the right level of super-majority.
I don’t think there’s any issue of “more and more” with the Mirakothans. The whole idea is that every case is evaluated on its own merits, not bound by law or precedent, so there’s nothing to build on over time.
Except the expectations of the people themselves. When certain behaviors start becoming unusual a greater number of people will see them as deviant enough to be bad.
Sure, but that’s just saying that cultures evolve. Presumably other behaviors become more common at the same time.
How? Anything deviant is at least as likely to be ruled bad by tradition as it is to be allowed by permissiveness. The side with the best argument is likely to win.
Once something has been ruled unlawful, precedent will hold personally and socially (risk avoidance behavior being somewhat more frequent than risk tolerance) even if it does not hold legally.
The best way to combat this would be through mass demonstration (as this grants extra pressure to avoid risking convicting a bunch of people). But unfortunately all sides can play that game.
This was fun. Thanks for posting something not about current events.
Mirakoth has a great system of government for some species of sophont much better than humans. (“If men were angels…”). I would enjoy a story about the evolutionary psychology of the Mirakothans.
Something like Sanzorre’s insurance companies is an element of my somewhat more serious constitutional anarchy proposal.
I did keep imagining Mirakothans as aliens for some reason.
I don’t think it’s about the species, though. It would be a good system, even for humans, IF perfect information were always available to the judges — they’d truly be ruling on the morality of an act instead of the arguments of the litigants. But in fact they’d only be deciding who did a better job in court, just like the real world but without any protections to balance the scales. Convincing liars, people with more time/money to gather evidence, and people good at emotional manipulation would do disproportionately well in court. And God help people with stutters, mental impairments, or not enough resources to properly put together a case.
For a much more elaborate picture of a different legal system, for an alien species, let me again recommend C.J.Cherryh’s Foreigner series. By this time it’s about eighteen books. I’ve read all of them at least twice, most three times. Good stories, interesting characters, and a very interesting, and in some ways attractive, society.
I think something like the Mirakoth system was standard before the invention of written law. I also think it would cause serious problems unless Mirakoth is very culturally homogeneous.
Yeah. My understanding, which mind you comes entirely from reading David Chapman, is that what Scott’s presented here is more of a Kegan stage 3 thing than a Kegan stage 5.
Here’s my take on a society that takes the formal-systems-are-all-incomplete idea Way Too Literally:
(EDIT: Man, this went long. Tl;dr version: Terdovia doesn’t decide law without legal codes, it has a bunch of legal codes and decides which one to use during the hearing.)
Terdovia started out as a union of several different states, each with their own legal code, as well as a federal legal code, which was initially reserved for interstate matters but over time abandoned that restriction and started legislating other matters. This lead to deep dissensions, especially over social values legislation, which came to a head when the federal courts ruled that Magic: The Gathering decks should be conferred personhood rights, and so could not be dissembled except in certain cases where the health or safety of the player were at risk: a position favored by the more progressive Fuschia tribe but strongly opposed by the more traditional Ochre tribe.
The Ochre states threatened to exercise their right to secede, and would have taken their valuable shaving cream molecule mines with them. However, by chance a bunch of Terdovian politicians had read Kegan and Chapman and proposed a way out of the mess. The problem, they said, was in the very attempt to impose a single legal code that covered all communities and situations. Things had gone much more smoothly, after all, back when each state got to decide the vast majority of issues for itself.
However, rather than propose a return to the old model, they proposed something more radical: what was true of Terdovia as a whole was no less true of each territory within Terdovia. The old model might have been better, but it was still based on the false notion that there were clear boundaries between states, counties, cities, etc. when in fact those boundaries are fluid and nebulous (but also patterned).
So the new proposal was to allow multiple legal codes to coexist. At first, the structure of existing legislative bodies didn’t change, but the notion of “jurisdiction” was altered from a geographical one to a sociological, cultural, and philosophical one. Now, when someone is accused of a crime, as part of the hearing, the grand jury has to determine which, if any, of the local, state, or national legal codes should apply. Their decision in this matter is binding on the jury trial that follows.
The proposal’s adoption lead to the birth of the profession of “meta-attorney,” whose purpose is to argue for the most favorable legal code for the plaintiff or defendant in any given case. Additionally, since no legal code will be asked to cover all possible circumstances, there has been an explosive growth in the diversity of the various legal codes.
The system has its critics. Some say that it is simply too complicated, trying to solve a non-problem, and advocating for a return to the old days of clear jurisdictional boundaries. Others are disturbed that the backwards Ochre tribe are now able to freely murder helpless MTG decks in many parts of the country.
I suppose multiple law codes do exist today, in the form of Court Martial vs civilian law.
(And formerly ecclesiastical law. If a wild animal commits a crime, that’s for the church. If a farm animal does, that’s secular)
That’s a good point. I hadn’t even thought of that. I’ve read that it was common back in the day to try to get tried in ecclesiastical courts, since they didn’t have the death penalty (and maybe not even imprisonment, but I could be misremembering).
More amusingly, after the Reformation in England the ecclesiastical courts didn’t even exist (well, they did, and still do, but had no criminal jurisdiction). However, felons could still claim ”benefit of clergy” which became a codified procedure. This resulted in their being released without further punishment as there was no ecclesiastical court to hand them over to- except that as you could only claim benefit of clergy once, they were branded on the thumb to stop them claiming it again.
Except that, by the beginning of the 18th century, essentially all serious crimes had been made non-clergyable. That was at a point at which the requirement that, in order to plead benefit of clergy, you had to offer some evidence that you were a cleric, typically evidence of literacy, had been abandoned.
See also More Fictional Drugs Banned By The FDA and Little Known Types Of Eclipse. 🙂
(And from Scott’s old blog, Little-known sexual orientations, Little-known forms of government, and Little-known forms of religion. 🙂 )
How do Mirakothans select their judges ? That is, do I need to have any sort of a special certification to be a judge, or is owning a black robe the only prerequisite ?
Elected would make sense, that smooths out the variation in opinions even more. But it would have to be elected by some kind of sensible voting method that doesn’t produce the same kind of bimodal distribution that the US one does.
If you think you should be a judge, you submit a portfolio consisting of your personal history and several references, and then interview before a panel of 7 judges.
Requiring that new judges be approved by existing judges runs the risk of steadily increasing radicalization of the judicial profession.
Yeah, better start with a panel of 49 random citizens.
Why elected judges and not a jury of random citizens?
Yes, what’s wrong with a democracy where random citizens are your panel of judges and jury? Especially if the executioner is yourself, on the honor system,* by relatively painless lethal injection (or hemlock if that technology doesn’t exist)?
*You can easily violate the honor system once. Just don’t think you can come back to Mirakotha again after pulling such a dishonorable trick.
Mirakothian judges should be assigned by merit since there’s an absolute definition of good vs bad to assess them on.
Simply have judge candidates predict the outcome of judgements, and assign the role of judge to the best predictors.
Since good vs bad is determined by the outcome of judgements, a person who can perfectly predict the outcome of judgements has a perfect understanding of good vs bad.
I guess I misinterpreted, I assumed everyone was a potential judge, like jury duty.
Sounds like laws Jack Vance would make up.
Not Vance. ‘Judicial Systems of the Cameroi’, by R.A.Lafferty
[I just made that up. But it *should* have been written]