Legal Systems Very Different From Ours
The Gist: How society works need not be how society works.
The familiar may not be best, it may not even be good, and it’s worthwhile thinking about radical alternatives to test your assumptions. But well-intentioned utopian schemers can fail to account for reality and find themselves in dystopias. While theory (and even fiction) can be provocative, more telling is the history of how different people actually organized their societies and solved their (often similar to our own) problems. David Friedman profiled several alternatives (and wrote one of the best books I’ve ever read) in the perfectly titled Legal Systems Very Different From Ours.
Figure 1. How physics works, on the other hand, is how physics works. There’s a genre called “hard science fiction” that really aspires to get the science right. I’d love to see “hard utopian fiction” that really tries to get the economics right. In the meantime, our mission is to explore strange old worlds, to seek out old life and old civilizations, to boldly go where men have gone before.
In saga-period Iceland, for example, you could sell your right to revenge. If Hrolf the Mauler killed the poor Gunnar the Farmer, Gunnar’s kin could sell their right to recover to Bjorn Bonecrusher. Bjorn could take that claim to a court which could assess damages, declare Hrolf an “outlaw” (which forbade anyone from providing him food or shelter, allowed the confiscation of his property, and made him legally killable), and then authorize Bjorn to go personally enforce the judgment for his own benefit. This was not only probably personally profitable but prestigious: you got the responsibility of fulfilling the law and condemning a bad man. Perhaps you don’t want vigilantes enforcing our laws, but should victims be able to auction off their harms for others to collect?
Iceland also heavily incentivized confessions by distinguishing between open and secret crimes. If Hrolf didn’t tell anyone about injuring Gunnar, he would invalidate possible legal defenses, including that it was in self-defense or Gunnar was an outlaw. Instead, the law stated:
“It is prescribed that where men go only one way from a killing, then the killer is to publish the killing as his work within the next twelve hours; but if he is on mountain or fjord then he must do it within twelve hours of returning. He is to go to the first house where he thinks his life is in no danger on that account and tell one or more men legally resident there and state it in this way: ‘There was an encounter between us,’ he is to state, and name the other man and say where it was. ‘I publish those wounds as my work and all the injury done to him; I publish wounds if wounds are the outcome and killing if killing is the outcome.’”
For less serious crimes, individuals might be sentenced to leave Iceland for at least three years or pay a fine. Most cases, then as now, were settled out of court, but their system may have had a post-conviction feature: “some passages suggest that the prosecutor who got a man outlawed had the power to later lift the sentence from his outlaw.”
Figure 2. This, of course, is exactly the type of helmet that Vikings did not wear. To get in the Icelandic mindset, it’s worth watching the underrated film the Northman, which I heard the director describe as the kind of movie a Viking would make if he could.
You can see an echo of self-help in 18th century England, where there were no police nor district attorneys; instead, victims of crimes hired private investigators and lawyers. There was no English public prosecutor until 1879 - “a system of professional police and prosecutors, government paid and appointed, was viewed as potentially tyrannical—worse still, French.”
Because the cost of enforcement was often greater than the reward of recovery, the state offered bounties for successful convictions, such that if you managed to nab a London street robber, you might earn the equivalent of three years income for a journeyman. Private enforcement also inspired merchants to band together through common legal defense associations that aggressively advertised that anyone who stole from them would be prosecuted to the full extent of the law. Notably, “Daniel Klerman has argued that English common law had a pro-plaintiff slant until the nineteenth century because judges received fees for each case and it was the plaintiff who decided which of several alternative courts the case went to.”
Upon conviction, there were first only two outcomes for almost all felonies: pardon or death. At first, clergy were spared, then the literate, then anyone who could “read”/memorize and recite a specific Bible verse in court, then all women - but theoretically only once: they’d forfeit their land and get a thumb brand to signal to a future court that they had been there before. The system had two major incentives: first, if the facts were really bad, settle out of court with the plaintiff; second, because pardons were more likely with great character witnesses, people generally were encouraged to have good relationships with good people.
Eventually a new punishment became available: “transportation” to the New World. At first this was a profit center, as the government wanted to maintain minimal prison facilities and would just sell prisoners as indentured servants. Eventually, American states prohibited this immigration and instead the government subsidized exile to Australia. Alternatively, some healthy young felons were permitted to join the armed services.
Figure 3. I’ve never understood why a common condition of parole is that you must never leave the state where you committed your crime. Given the persistently high recidivism rate, the condition should be that you must leave and never come back! Note that long-term prison sentences are a modern phenomenon while exile is both cheap and enjoys a long history of effective practice. And there are still more cheap, effective, historical alternative punishments.
America’s founders enshrined your right to a jury of your peers in our Constitution as an important bulwark against tyranny: if you were to be sentenced to punishment, it would be because fellow citizens, not public officials, decided so. As a result, today you enjoy the right to have 12 amateur stranger conscripts who can’t figure out how to get out of the duty decide your fate, usually by unanimity. In contrast, saga-era Iceland wanted juries who knew the full context: their members could be “the nine nearest neighbors to the site of” the crime or witnesses to a legal act.
Ancient Athens had still a different system: “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 200 to 500.” Notably, jurors were paid “about half the wage of a rower, so jury service provided a sort of low-end welfare.” Simple majorities prevailed but, more significantly, if a prosecution failed to get one fifth of the votes of jurors, the prosecutor was personally fined “roughly two years’ wages for an ordinary craftsman” and could not pursue the same crime again. Friedman suggests a modern adaptation: “if, in three different cases over a year, there was at least one charge on which fewer than four jurors voted for conviction, the prosecutor will be removed—a three strikes rule. That gives a prosecutor a reason not to file charges that he cannot support at trial.”
As you might guess, again, there were no public prosecutors. In fact, there were no professional lawyers. Litigants were required to argue their own case, “although it was permitted for a party to yield some of his time to a friend to speak for him on an unpaid basis” and common for litigants to hire speechwriters.
A “market for mercy” was a feature of the British courts but Friedman notes that “in a system that views law as the creation of a legislature, king, or court of last resort, the same authority that made the law can settle disagreements about it. That does not work for a legal system viewed not as created but as discovered, deduced from divinely inspired sources.” What happens if your religious text demands punishment that shocks your conscience? Judicial activism, of course!
“Consider the case of the disobedient son. The Torah prescribes death by stoning for a son who defies his parents. Some legal authorities chose to read into the wording of the biblical verse requirements that could not in practice be satisfied” - the son would have to be an exact age and the circumstances would have to be far more specific than any plain reading of the text would justify. Muslim scholars did the same for the Koran’s harshest prescriptions (how often do four competent adult Muslim males witness all aspects of adultery?) Medieval Christian officials may even have rigged trials by ordeal, such that if they were confident that the accused was a faithful Christian, the “boiling water” the accused had to thrust his hand into to demonstrate his innocence might instead just be bubbling.
Those Christian officials might have just been guessing (or been corrupt). Traditional Jewish law relied on more evidence of supernatural belief for practical legal results. Friedman offers this example:
“Jacob says ‘I am missing a cow and I suspect that Isaac stole it.’ Isaac denies stealing it and there are no witnesses or other evidence. Jacob's case is dismissed by the court. Jacob says ‘I am missing a cow and I saw Isaac steal it.’ Isaac denies stealing; again there are no other witnesses. It is still a ‘he said/he said’ case, but Jacob is now making a claim certain rather than a claim uncertain; if Jacob is an honest man Isaac is a thief, which was not true in the previous case. The rule this time is that Isaac may ‘swear and be quit.’ If he is willing to swear to his innocence in the prescribed form, Jacob's case is dismissed. If, however, Isaac is unwilling to swear, Jacob prevails; Isaac is found guilty and owes damages. Shift the facts to make Jacob’s case a little stronger, and now it is Jacob who swears and takes. If he is willing to swear that what he says is true, he wins the case. If he is unwilling to swear, he loses. Shift the facts even further, perhaps by adding two witnesses to the act, and Jacob prevails even without swearing.”
This is already different from how our legal system operates, partly because we simply don’t have that much trust in people. But traditional Jewish law didn’t assume people were trustworthy. Someone “who is known to have sworn falsely in the past or to have violated any of various rules of religious law, is not permitted to swear and so loses in a case where his oath is required for him to prevail.” Keeping kosher was “evidence that the observer believes in the religion, since he is willing to bear substantial costs in order to conform to its requirements. The fact that he believes in the religion means that he will be reluctant to swear falsely, for fear of supernatural punishment.”
Figure 4. Despite some misunderstandings of the First Amendment, our own system very weakly relies on faithfulness by asking (but not requiring anymore) courtroom witnesses and government officials to swear on a Bible of their veracity or faithfulness to the Constitution. We also have witnessed the absurd theater of people swearing on the Constitution itself to uphold the Constitution. Ultimately, in our system, liars under oath get prison, constitutional infidels keep getting pensions.
Different societies have come to very different conclusions about what testimony to allow in court. In the judicial activism of Islamic law, witnesses to crimes with the harshest punishments were in a perilous position because if the charge was not proven, they were charged with the crime of false accusation. The ancient Chinese were keen to minimize the burden on their administrators and so had a general rule that “if the accusation was found to be false the accuser was subject to the penalty that would have been imposed on the accused if found guilty” - a far more dramatic illustration of the “loser pay” rule in torts. Somalis can be required to swear on their marriage, with the result that if they lie, “the marriage is dissolved” - which may not always be the deterrent they’d desire. Ancient Athens allowed the testimony of slaves… but, bizarrely, only if they were tortured for it. The Visigoths had a more coherent rule: “Torture of a defendant was only permitted if there were facts of the crime that an innocent defendant would not know.”
Part of trustworthiness went to the value that societies placed on individuals as members of various classes. Some we might condemn: slaves are inevitably and predictably given less rights; the murder of a woman might fetch less restitution in certain courts than of a man. Others we might entertain: noncitizen immigrants get less rights than members of the polity. The medieval Irish appear to have conjured a whole system of “honor prices,” partially hereditary, partially based on position and wealth, that “determined what [a man] was owed for offenses against him but also the limits to his legal capacity, including the amount for which he could contract on his own authority and the weight of his evidence in a legal dispute.” But the irony was that due to… their high honor price… contracting with [nobles was] risky, since it might prove impossible to enforce the contract,” rendering a legal privilege an actual burden. But this all kind of fits western expectations.
In ancient China, Confucian administrators’ justice was driven by the impact on families. So, the only son of elderly parents (or even dead parents when he was the only one to maintain their shrine) might be spared death. A nice thought. And so is the idea of it being “a particularly serious offense to kill several members of the same family.” But “in one case a defendant found guilty of doing so was sentenced to severe punishment despite the fact that the men he killed had attacked him and his companions and one of them had just killed his father.”
There was an extensive family hierarchy based on how long you were expected to mourn for someone’s death: “All relatives were classified as senior or junior to each other… For an offense committed by a junior relative against a senior relative, penalties were increased; for an offense committed by a senior relative against a junior, decreased.” In other words, a crime committed by a nephew against an uncle would be punished more severely than the exact same crime committed by an uncle against a nephew. Remarkable given that government inherently has an interest in maintaining order, “it was a criminal offense for a child to accuse his parent of a crime even if the parent was guilty, a capital offense if he was innocent.” Some were condemned regardless of their decision: “An inferior was expected to obey orders from a superior to commit an illegal act but might still be liable for committing it.”
Figure 5. As a new parent, Confucian family theory sounds great! People keep warning me to enjoy it while it lasts before he becomes a teenager in twelve seconds. Of course, speaking of social systems very different from ours, “teenager” is a modern term and even the thought that there’s an intermediate period between childhood and adulthood is similarly recent. Some even argue that the stereotypical angst is just a Western phenomenon!
The Confucians were also keen on maintaining cosmic balance. In stark contrast to our own legal system, “intent was not required for criminal liability; the verdict was based on outcome, not motivation.” So that “if several people were jointly responsible for a murder and one of them sentenced to death, his sentence could be commuted to something non-capital if one of the other offenders happened to die while the legal process was still ongoing—presumably because cosmic balance had thus been satisfied.” Coconspirators might also suddenly have a notable incentive.
Under Somali clan law, “for intentional murder, the penalty is a life for a life” - not so different from how our own society is supposed to work, eventually - but “if the murderer succeeds in fleeing abroad, a member of his family of equal status may be put to death in his stead.” This can be avoided: “In most cases the victim’s family can choose to accept blood-money instead” but not in especially egregious crimes. Given the heavy penalty for murder, there’s also an interesting incentive with another rule: “If a man seriously wounds another, his family must take the victim into their household and nurse him back to health.”
Somewhat similarly, to prevent ongoing feuds, the Comanche expected that a killing would result in a killing and no more. Notably, “killing a favorite horse, thought of as having a soul, counted as murder and so justified the killing of the responsible human in revenge.”
But not every culture seems to have structured incentives to reduce crime. Somewhat like the Nordics, Jewish law “distinguishe[d] between theft (secret taking) and robbery (open taking)” - but bizarrely, “A thief owes the victim twice the value of what was taken unless he confesses voluntarily, in which case he is only obliged to pay the value.” There were even “situations where the thief has improved the stolen property and is entitled to compensation for doing so.” Even worse: “the penalty for a robber is merely the obligation to return what he has taken; unlike the thief, he does not have to pay twice its value.” Even less sensibly, the Cheyenne didn’t care; their attitude appears to have been: “if you had asked, I would have given it to you." Friedman explains: “in their own terms, they were wealthy. Men frequently had more horses than they themselves had use for and so were free to use the surplus to prove their generosity by giving some away.”
More sensibly, an Athenian “victim of theft was entitled to get back both his stolen property and a sum equal to twice its value.” But Athenians did have a strange rule: accusers were allowed to search the homes of their accused but, because it was feared that “stolen” property might be planted, they had to do so naked.
Remarkably, ancient Athens treated adulterous seduction “as a more serious crime than rape, the latter being punished with a fine.” The reasoning, from the husband’s perspective, was that “seduction implied the loss not only of confidence that his wife's children were his but also of his future trust in her.” He was entitled to divorce his wife and kill her lover (or hold him for ransom). In the anarchic Comanche society, wife-stealing was “the nearest thing to [a] legal dispute.” A woman’s brothers decided her initial fate and they were incentivized to marry her off to a powerful, often older brother-in-law. But she “might prefer someone earlier in his career, younger and more handsome” and run off with one such who himself might be in love… or trying to build his reputation. Importantly, “Wife stealing was done openly, so guilt was not an issue. Compensation was.” No adjudicator settled the dispute. The ex-husband would demand a price and enforce it (or fail) on his own authority.
More to come in the next email, especially about choice of law.
Figure 6. Click here to acquire Legal Systems Very Different From Ours (10/10). All of it was interesting to me, though Friedman has a “rule of thumb for reading history: View with suspicion any anecdote that makes a good enough story to have survived on its literary merits.” Many societies he studies rely on feuds and Friedman lists the following “Requirements of Feud Law”:
My threat to harm you must be more believable if you have wronged me than if you have not… If my threat is equally effective whether or not you have actually wronged me, it works as well for extortion as for law enforcement [and that’s a problem]
There must be ways of making it likely that I will carry out my threat despite the risks.
There must be ways of enforcing the rights not only of the strong but of the weak.
There must be ways of terminating feud, preventing the pattern of continued back and forth violence that the word suggests to the modern ear
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 Free Market University, an essay about how to restructure modern education inspired by another of David Friedman’s books, the Machinery of Freedom.
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