The Amish are famous for their simple living when they really should be known for their thoughtful, intentional life architecture. David Friedman, the author of Legal Systems Very Different From Ours, says “Their view is not that modern technology is wicked but that some specific technologies are likely to disrupt their social system and should be rejected on that account.”
Importantly, each congregation comes to its own decisions about what that means and, because they do not build houses of worship, congregations are kept small enough to fit into a barn. “There is no higher level with authority over the individual congregation,” though congregations of like-mind affiliate and make marriage matches. Cars and phones may be forbidden because the congregation wants to maintain social cohesion and encourage face-to-face meetings. “A space heater in the kitchen keeps the family together. Heating all the rooms would lead to everyone going off to their own rooms.” Fancy clothes and photographs might induce pride. Perhaps this level of religious commitment is too extreme for you, but it’s a beautiful idea.
To be Amish is to pick your rules and abide by them or face ostracism. Adults choose what congregation to affiliate with and can leave it for another. Prospective leaders are nominated by two or three voters and the winners are chosen by lot to serve for life. A bishop “is not subject to impeachment or a recall election but could conceivably find himself with no membership.” Twice a year congregants are asked to reaffirm their commitment to the particular rules or ask for adjustments; all must agree. If a congregant is out of sync, the bishop issues a warning. If the congregant persists, the bishop presents the issue to the congregation where an appropriate punishment is agreed on unanimously - asking for a confession or weeks without social interaction with the rest of the church. At the end of the ostracism, the congregant is asked whether they agree the punishment was deserved and whether he believes he is forgiven by God. If they agree, they are reinstated. If the congregant still persists, he is excommunicated and won’t be welcome with affiliate congregations.
Figure 1. I was going to make a joke about how the Amish selfie stick is a beautiful, hand-crafted wooden instrument with a mirror at the end that allows users to hand draw self-portraits but that still seems rather vain. But perhaps we can launch a highly effective Amish Weight Watchers: you can only participate if you are doing it for your health, not your looks; you can only eat what you produce yourself; and if you cheat on your diet, none of your friends will talk to you for weeks. You can, however, share your progress through Amish social media: a handwritten letter without pictures.
David Friedman insists this isn’t so different from what you may already be doing: “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.” He also notes that Amish have very high levels of retention - more than 4 in 5 young people choose to remain Amish. Famously, the Amish give their youth the opportunity to briefly experience the rest of the world (during “Rumspringa”) before deciding. “Ministers offer the young adult the opportunity to back out, telling him that ‘it is better not to make a vow than to make a vow and later break it’”.
America is a relatively free place and the Amish are able to maintain their community by engaging in deliberate practices that are not forbidden by law (ostracism rather than, say, corporal punishment). But they have had to fight their governments from time to time to maintain their way of life. May we all be so inspired! Here are two notable interactions that Friedman discusses:
“Amish children are expected to help the rest of the family with chores within their ability—babysitting younger siblings, weeding, milking—from an early age. They go to school, but only through eighth grade, the Amish having successfully persuaded first state authorities and then the Supreme Court to give them a partial exemption from compulsory schooling laws. After eighth grade they are, in effect, apprenticed to adults in the community, most commonly their parents, learning how to run a farm and a household and, in some cases, learning a trade.”
“In 1955 Social Security became mandatory for self-employed persons. The Amish objected to participating, in part on the basis that they believed they were religiously obligated to take care of each other and should not be transferring that obligation to the state, in part on the grounds that insurance programs, which Social Security at least purported to be (‘Old Age and Survivors' Insurance’), are ‘gambling ventures that seek to plan and protect one's fortune rather than yielding it to God's will.’ Many refused to pay Social Security taxes, with the result that the IRS eventually began filing liens on farm animals and other assets. The conflict was only ended in 1965, when federal legislation exempted self-employed Amish from having to pay Social Security taxes, an exemption later extended to Amish employees in Amish owned businesses.”
In saga-era Iceland, you also had the opportunity to pick your leaders - really pick them, not just vote for a loser and be led by someone you don’t want. Each resident had to choose a local priest/politician affiliate and pay him annual dues for access to legal services. If the priest was unsatisfactory, once a year, you could switch to a different priest. The priest sat in a national legislature that appointed judges, among other things - and he could sell his position to someone else (though the success of the transfer depended on maintaining the loyalty of dues-payers). Priests might also use their dues to help their congregants, including lending money to those who got in trouble to pay off large fines.
Figure 2. Imagine a society where, once a year, you could direct the taxes you specifically pay to be used by a representative of your choice. Perhaps you’re limited to the top 435 options, though marginal incumbents could always be unseated by challengers with more people or tax dollars. A politician would advertise how he planned to spend your money, including possibly just giving it right back to you, and he couldn’t blame anyone else if he didn’t deliver. Geography might be irrelevant - your ten nearest neighbors might have ten different representatives but each one would be considerably more satisfied.
Medieval Islamic society practiced something still more complex, in which different laws would apply to different people who found themselves in the same situation in the same place. In other words, a medieval Islamic city might have separate courts for disputes between Shia Muslims, between Jews, between Christians, and even between different adherents to the four different schools of legal thought within the Sunni strand of Islam. The law that would apply to you would be based on to whom you tithed. Historically, “non-Muslims had to use Muslim courts for criminal cases but had choice of law for civil matters” unless the dispute was with a Muslim. “In at least some times and places, parties creating a contract, a partnership, a marriage, could choose which school’s legal system they wished to create it under and would be bound to the rules of that legal system in any future dispute.” The closest we come to this today is allowing parties to choose the state law to prevail.
Figure 3. At a future barbeque and square dance in a polylegal society, Jewish participants could be fined for eating pork, Mormons for drinking, Baptists for dancing, and liberal atheists for participating in something too white.
In the American legal system, once a trial verdict gets appealed, appellate judges accept the facts of the case and then decide if the law was correctly applied. In the medieval Muslim system, litigants would first each pay Islamic scholars to review hypothetical situations and issue opinions about what the law would then require; they would then present those opinions to a government judge, who would be responsible for determining whether the facts in fact fit the hypotheticals. “Under most circumstances there was no way to appeal.”
While we’re on the subject of lack of appeal, let’s take a brief diversion: I recently read a book on the Confederate Constitution and, remarkably, the Confederacy never set up a Supreme Court. Their constitution provided for it but Congress could never agree on its terms - the divisibility of sovereignty was at the heart of the legal question of secession. So Confederate federal courts seem to have had no method of appeal, though most cases, even most federal prosecutions, took place in state courts. But, significantly, federal law only prevailed in a state if the local supreme court upheld it and federal laws were crafted with that knowledge.
Figure 4. To give you a sense of Southern political culture, one of the Confederate generals who died at the Battle of Franklin was named States Rights Gist, meaning that his parents were very committed to the cause decades before the war.
Eventually the Ottoman Empire chose one of the Sunni traditions to default to when there was inter-communal disputes and, within that tradition, gave the government the option to choose between alternative resolutions that were considered alright (Friedman notes that there could be different defaults in polylegal systems, including just going with the defendant’s tradition). Remarkably, much of the legal wrangling in Islamic courts, all premised on scholars diligently pursuing guidance from history, not reason, on what the religion required, might not have been what it seemed:
“A number of modern scholars, of whom the most influential was Joseph Schact, have argued that that account is in large part fictional. He pointed out a large number of cases in which companions of the Prophet, who would surely have been familiar with the legal rules he followed, made decisions that appeared inconsistent with the rules later deduced from hadith. His conclusion was that all or almost all of the hadith, including the authenticated ones, were bogus, invented in the early centuries in the course of conflicts over the law. In his view Muslim law was actually an amalgam of pre-existing Arabic legal rules, administrative regulations created by the first Muslim dynasty, and legal rules taken over from the rules of the conquered provinces. Once disputes arose among different schools of law the authority of the Prophet provided the most decisive evidence available, so both sides to such disputes invented traditions to support their positions. Scholars who argued for derivations of the law not based on divine revelation eventually lost out to those with the opposite position. Later scholars have criticized parts of Schacht's argument but most, at least among non-Muslim western scholars, appear to accept much of his thesis.”
Residents of Muslim societies got different but permanent legal regimes (apostasy was not looked kindly upon); the Amish and Icelanders got the annual chance to change leaders; Confederates could move to a different state. The Comanche were a truly anarchic society in which you could instantly change your allegiance at any time that suited you. Prospective leaders would announce their intentions, peaceful or warlike, and people would choose whom to follow, leaving at any time it didn’t suit them. As you can imagine, this made a coordinated peace extremely difficult, and the Comanche were therefore perhaps the most difficult tribe to bring under conventional authority.
Perhaps surprisingly similar to medieval Muslim regimes are American prisons. No matter how diligent and dedicated the officials who run the prison (and they vary in their diligence and dedication), prisoners cannot be guaranteed safety - especially when they are literally surrounded by people who have been convicted of violent crimes. Further, if prisoners continue to engage in illegal activity, such as dealing with contraband, they cannot rely on the official system to adjudicate disputes. So, Friedman argues, they turn to gangs. At first you might think that would provide another choice of rules. But the size of the prison population and therefore the large presence of strangers with unknown affiliations and reputations undermines that opportunity. Instead, “In a society of strangers, the lowest cost way of identifying which group a person affiliates with is the color of his skin. Seeing a person is all it takes to have a good idea about who to complain to about his behavior. This ability to know which group is responsible for a prisoner’s actions without knowing that prisoner facilitates the community responsibility system.” This can seem terrifying to modern eyes who prefer a colorblind society, but it’s also notable that correlated with the rise of gangs in prison is a “90% decline in prisoner homicides.” Of course, not “because of their good intentions. Gangs enforce their own law because orderly prisons are profitable ones.” Friedman is careful not to praise the groups - they “increase[] recidivism” and empower bad people, but he argues they are rational for participants.
Figure 5. “Warden, believe me, I want to get those who shanked me. But it was really difficult to catch their pronouns.”
Meanwhile, in Somalia, you are accountable to everyone who shares a common male ancestor, the closer the ancestor the more accountability you have. Friedman explains:
“If, to simplify considerably, there is a conflict between two individuals whose common great-great-grandfather in the paternal line had two sons, the group that becomes engaged on the side of each will be the descendants of the son from whom he is descended. If a conflict arises involving a member of one of those groups against someone whose genealogy links with theirs higher up the genealogical tree, the two groups that were enemies in the first round may ally. In the case of a conflict between individuals in different clans, all of each clan is, in principle if not always in practice, allied in support of its member.”
Families standing by each other might be somewhat expected, but remarkably, individuals explicitly contract to pay about 300 of their closest relatives for certain rights, most importantly help in adjudicating disputes (the family might pay a third of the cost demanded if a member kills another person or help enforce that demand against the killer of a family member). Of course, that being said, your family is not just there for you when you’re in trouble, but also when you succeed: whether it’s a court judgment in your favor or just prosperity, Somalis require you to share your wealth “with detailed legal rules” (which is not exactly an inspiration for wealth creation).
When there are disputes, the disputers find neutral, respected adjudicators to resolve the issue; importantly, this is all voluntary and “a judge who produces verdicts that meet general disapproval is unlikely to be asked to judge cases in the future.” But in the immediate case, if a judge’s verdict is not followed, then the judge’s village’s men will help the winner enforce it - and “anyone who refuses is considered an associate of the defendant and owes a fine to the plaintiff’s family.” The loser may also find that “one of his animals [is] slaughtered, cooked, and eaten by the villagers each day’ until he comes into compliance. Cases can be appealed, and the litigators then have to again agree on adjudicators, this time more in number than the first and “drawn from a wider group of families or clans.” If someone repeatedly commits crimes, he may be denounced by his family and be on his own.
Family you inherit but friends (and politicians) you choose. Athens is famously the birthplace of democracy, and not mere republican representation but true democracy of the polity: “laws were made by majority vote of the Assembly” - “all adult male citizens” (those born to married citizens) “who chose to show up.” (Some scholars speculate that democracy arose in part from frustration with tyrants debasing coins). But the ancient Athenians shared a significant feature with the Amish: they chose their leaders by lot - though for only a year, not a lifetime (the exception were generals, apparently the one government official whose merit was necessary to the continuation of the society)
Figure 6. One wag once observed that democracy is three wolves and a sheep voting on what to have for dinner.
Athenian democracy may have been excessive, but it inspired the world. Their tax system, not so much:
“If you were one of the richest Athenians, every two years you were obliged to produce a public good. The relevant magistrate would tell you which one. ‘As you know, we are sending a team to the Olympics this year. Congratulations, you are the sponsor.’ Or ‘Look at that lovely trireme down at the dock. Guess who gets to be captain and paymaster this year.’ Such an obligation was called a liturgy. There were two ways to get out of it. One was to show that you were already doing another liturgy this year or had done one last year. The other was to prove that there was another Athenian, richer than you, who had not done one last year and was not doing one this year.”
How could one prove that someone was richer? “I offer to exchange everything I own for everything you own. If you refuse, you have admitted that you are richer than I am; you get to do the liturgy that was to be imposed on me.” More interesting were Athenian resident alien rules - each immigrant needed “a citizen sponsor who was to some degree responsible for” them (alien families could be withheld citizenship for generations and could usually not hold land.)
Perhaps you’re unsatisfied with your leaders being sourced from dynasty or luck or choice (or most likely: other people’s choices). Confucian administrators of China sympathize. To become a powerful bureaucrat there, you had to score very highly on tests. “The exams did not test administrative ability, knowledge of the law, expertise in solving crimes or other skills with any obvious connection to the job of district magistrate or most of the other jobs for which the exams provided a qualification.” Instead, the exams tested applicants’ knowledge of Confucian philosophy, poetry, and calligraphy - and by proxy, diligence and IQ. But Friedman argues that the content of the exams suggests a balance between competence, loyalty, and virtue, a “massive exercise in indoctrination, training people in a set of beliefs that implied that the job of government officials was to take good care of the people they were set over while being suitably obedient to the people set over them.” Of course, this is basically how our current regime works, though it may not teach the virtues you desire.
The Confucians’ opponents, at least at one time over two millennia ago, were the Legalists. The Legalists “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,” which included equal (often harsh) treatment for everyone. The Confucians instead wanted to model virtue and set up a social hierarchy (mostly based on family) outside government to settle disputes (they intentionally made dealing with the courts unpleasant). Legalists wanted “incentives, arranging the world so that good paid and evil did not” with rules set out in advance. “The ideal Confucian Emperor would never punish anyone for anything, merely set an example of virtuous behavior so perfect that it would inspire all below him.” The Confucians did have a code, but “where [an] offense could not be fitted into any category in the code, the court could find the defendant guilty” of violating “not an actual decree but one that the Emperor would have made had the matter been brought to his attention.” The Confucians prevailed, and “set up a system designed to produce good men, put them in power and then leave them alone.” Ultimately, the two schools appear to have reached their apogee with one of the great rulers of all time Lee Kuan Yew.
Figure 7. Click here to acquire Legal Systems Very Different From Ours (10/10). The book covers even more than I’ve been able to highlight, including gypsies who constantly lie to outsiders to prevent oversight but who punish each other with ostracism if they get caught too much and spoil opportunity for others. And how the Ottomans would conquer a territory and “appoint the surviving members of the defeated dynasty as local rulers in some distant part of the empire. The knowledge that defeat would not deprive the losers of life, wealth or elite status reduced the incentive to resist conquest, and a governor with no local ties was dependent on the Sultan for his authority, hence likely to be loyal.” And pirates.
Thanks for reading! If you enjoyed this, forward it to a friend: know anyone who is a lawyer? How about someone who enjoys history and reading about different cultures? Or do you know anyone who is the subject to any laws?
For more, check out my archive of writings, including Why You'd Want to be a Pirate, a review of the Invisible Hook and the economics and laws of pirates.
If you’ve received this email from a friend and would like more, sign up at www.grantreadsbooks.com or shoot me an email at grant@grantstarrett.com with the subject “Subscribe.” I read over 100 non-fiction books a year (history, business, self-management) and share a review (and terrible cartoons) every couple weeks with my friends. Really, it’s all about how to be a better American and how America can be better. Look forward to having you on board!