Athenian Law: Not actually so crazy

Welcome back to our discussion of Legal Systems Very Different From Ours. Sorry for the slight delay; we’ve been recovering from Halloween. Today we’ll be discussing Athenian law.

Athens is famous for being the inspirational democracy, though the extent to which it was actually a democracy is a tad overstated by modern standards–we’re not sure exactly how many people lived in ancient Athens, but the majority of them, probably a supermajority, could not vote. Only male citizens could vote; the population also contained, (aside from women) a large number of “resident aliens” who were free, but not citizens, and plenty of slaves.

Only the child of two current citizens was a citizen, and it was rare for foreigners to be awarded citizenship. Men often had one regular wife, who was a citizen and whose children would therefore enjoy the rights of citizenship, and a concubine or two who were aliens or slaves and whose children, likewise, would be aliens or slaves.

The obvious issue with this system is that the non-citizen population is likely to grow faster than the citizen population, but citizenship carries with it too many benefits to be given away lightly.

The less obvious issue is that people often fell in love with people from other social castes and wanted them for primary spouses, not secondary spouses. This theme shows up a lot in Greek plays, in which star-crossed lovers from across social castes face doom until, at the climax, it’s revealed that there was a mix-up at one of their births and the beloved is actually an Athenian citizen and the marriage can go forward. (Or at least this is a major plot point in A Funny Thing Happened on the Way to the Forum, an American play of the 1960s.)

The benefits of being a male Athenian citizen included the right to marry another Athenian citizen, vote in the assembly (Athens was a direct democracy, not a representative one,) serve on a jury, (juries were huge, often 200 to 500 people,) serve as a magistrate, be a paid arbiter, and own property.

Resident aliens (called “metics”) were not slaves, but generally couldn’t participate in the government or own land They could prosecute some legal cases and had to have a citizen “sponsor.” Exceptions existed.

Slaves were, well, slaves. Slavery sucked.

Debt slavery was abolished as part of the reforms of Solon about two hundred years before the start of the period being discussed, so most slaves were either prisoners taken in war or the descendants of such. … A slave’s owner could sue to collect damages for an injury to his slave and could be sued for damages done by his slave. He was not free to kill his slave but was free to beat him.

One wonders who would bother to prosecute the case of a slave who died under mysterious circumstances whose owner claims he didn’t kill him.

Slaves worked the typical gamut of jobs, from servant to farm laborers to silver miners.

It occurs to me that we tend to read about ancient Athens through people who generally held it in high regard; we don’t have many of the original legal documents from the Athenian legal system (we have, however, various speeches that people gave arguing their court cases, which often contained descriptions of relevant laws,) or much in the way of records made by Athenian non-citizens; I can’t recall even having read anything written by a Spartan, who might offer a countering opinion on the quality of Athenian government. Imagine if we were in a similar position with respect to the US–the US fell, most of our texts were destroyed, a Dark Age ensued, and a thousand years later, people began digging up American artifacts and decided the US must have been a pretty happening place; people began learning Ancient English and reading American novels and philosophers in school. Now another thousand years pass, and you’re trying to piece together the American legal system from old Perry Mason episodes and a thousand years of scholarship… and we would have about the situation we now have with ancient Athens.

[This ends our customary disclaimer about the difficulties of understanding a two thousand+ year old legal system with very few surviving primary source documents.]

Jury trials must have taken up a lot of Athenian time:

Each year, 6,000 jurors were selected by lot from those who volunteered; the only qualification was being a male citizen and at least 30 years old. … If we accept an estimate of 30,000 for the total number of adult male citizens, at any one time about a fifth of them were on the jury panel.

These cases had between 200-500 jurors each; Athenians must have loved trials (which is probably why they went to the effort of getting professional speech writers to compose their legal orations, some of which were popular enough to be preserved down to the present day).

Interestingly:

Witnesses gave their testimony in writing in advance; during the trial, their only contribution was to confirm that it was indeed theirs.

This implies that a lot of people were literate–or else there were scribes for the purpose. Either way, Athenian society clearly was pretty literate, which always prompts the question: why? We can’t credit the state of things at this point for having created themselves, so what did cause the flourishing of Athenian learning and culture?

The testimony of slaves, however, sounds pretty awful:

The evidence of slaves was admissible only if given under torture and only if the owner permitted it.

The Athenians had public and private cases; any male citizen could prosecute a private case, and for many cases the prosecutor received a large fraction of the resulting fine, providing an incentive for ordinary citizens to take on cases–but to protect against malicious prosecution, if a fifth of jurors failed to vote for him, he could be fined and barred from bringing future suits.

We worry about police planting drugs on a suspect in the process of search; the Athenians worried about a private party planting his own property on someone in order to accuse him of stealing it. They had a simple solution. The accuser was allowed to sear the house where he suspected his stolen property was hidden. But he had to do it naked.

The Athenians believed in a kind of contagious ritual pollution called miasma. The threat of contagion meant that murderers had to be exiled or kept out of the courts and temples:

In one case we know of, a defendant charged with murder claimed that the only reason for the charge was to keep him from showing up in another court to prosecute a different case.

Belief in miasma also resulted in the objects used in murders being ritually exiled.

So I tried to look up “The State of California vs 88 Ford Truck” and failed, but I did find the excitingly titled United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls:

United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls, 413 F. Supp. 1281 (D. Wisc. 1976), is a 1976 United States District Court for the Eastern District of Wisconsin decision regarding a requested order from the United States government to seize and destroy a shipment of approximately 50,000 sets of clacker balls under the Federal Hazardous Substances Act because children could hit themselves with the balls.[1][2]

The form of the styling of this case — the defendant being an object, rather than a legal person — is because this is a jurisdiction in rem (power over objects) case, rather than the more familiar in personam (over persons) case.

So they destroyed the clacker balls because children could hit themselves with them.

There are then some rules of family life/inheritance which are pretty standard fare. Adoption was legal, but like becoming a citizen, seems a bit onerous. Only males could inherit property, but were required to support the surviving womenfolk of the family.

If a man died with a daughter but no male descendants she would be required to marry the nearest male relative, outside of the narrow limits of the incest rules, who would have her.

Okay, that seems kind of bad for the children, but not too awful…

If already married she was required to divorce her husband.

What? This makes marrying a gal who has no brothers an awfully bad deal!

Finally, the authors examine the production of “public goods”, which were simply assigned every so often to local rich people:

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.

It seems like a system that, despite its obvious flaws, worked pretty well so long as the population of Athens stayed small enough.

What did you think? Thankfully ancient Greece is a very well-studied place, so hopefully some of you are experts on the era and have some great insights to share.

Take care and enjoy the weekend.

What does a good legal system look like?

51ta-us7crlWelcome back to our discussion of Legal Systems Very Different from Ours, by Leeson, Skarbek, and Friedman. Today we’ll be finishing up with feud law (short wrap-up chapter) and looking at English law of the 1700s.

The application of English law, as described by the authors, cannot help but make the reader wonder how on earth England managed to function at all (as, indeed, I often wonder about the US, laboring under the execress of US law). The suggest that somehow it managed, despite its shortcomings. I suggest that the English people managed, despite the imposition of a terrible system upon them, simply because the English are the sorts of folks who are accustomed to dealing patiently with bad systems.

Any attempt to generalize English economic, scientific, literary, or scientific success via imitating their legal system may therefore be imitating the wrong thing, though this may be true for all legal systems.

But let us back up a step and ask what makes a good legal system in the first place?

Obviously it must do justice, but this is a tautology; what is justice?

A good legal system:

  1. Discourages or prevents future misdeeds.
  2. Compensates the victims

People may object here that a good legal system should also punish evil-doers. People (myself included) have a deep desire to punish the wicked, but this is not the purpose of the justice system, but its means.

Let us analogize to eating. Why do we eat? What purpose does putting a sandwich in my mouth serve?

We can say that we eat because it is pleasurable just as seeing a murderer punished makes us glad, but this does not explain why eating sandwiches makes us happy and eating sawdust does not. The mere act of putting food-like substances in our mouths and swallowing them is not pleasurable, nor do even the most dedicated gourmands among us seek to create whole dishes of ersatz food simply to simulate the experience of eating. Flavor is nice, but it serves a more important purpose: nutrition. We eat to deliver calories and nutrients to our bodies.

Indeed, we do all sorts of things that “feel good,” because they help keep us alive and propagate our genes. Evolution has geared us to find staying alive pleasurable and dying unpleasurable.

Similarly, we desire to punish the wicked because it accomplishes the two goals stated above: it prevents or deters them from committing future crime, and it (sometimes) recompenses the victim.

(Note: I will use the word “criminal” here to refer to “person who has committed what is generally regarded as an evil act by their community,” but of course sometimes things are officially crimes that people don’t actually consider wrong, and vice versa, sometimes things are not illegal that people believe ought to be.)

Number 1, encouraging or preventing future misdeeds, is generally accomplished by physically preventing criminals from further action by imprisoning, exiling, or executing them, and by frightening potential criminals into not offending via the threat of being caught and imprisoned, exiled, executed, tortured, etc.

Number 2, compensation, is achieved by returning stolen property or forcing the criminal (or their criminal insurance group, if you’re in Somalia,) to pay a fine or labor in place of a fine.

We may add two more requirements to our ideal system:

3. It does not punish the innocent, nor place undue burden upon innocent people,
4. It is equally accessible to all classes of people.

Any legal system that causes harm to innocent people would of course become itself criminal.  A system that favors certain classes of people over others–say, by not prosecuting murderers who only kill poor people–obviously doesn’t achieve justice. Such a system also impairs economic activity by limiting people to doing business with partners they can find ways to enforce contracts on.

Unfortunately, it is difficult to measure whether a system actually does any of the above. Crime may go up or down for reasons entirely divorced from the legal system, like the installation of surveillance cameras or a change in demographics. We can compare victimization reports to incarceration rates, but that only tells us about crimes punished, not crimes deterred.

At any rate, with this in mind, let’s plunge into the work, starting with Feuds:

We have now seen a number of societies in which law enforcement was private and decentralized. That pattern, although strange to us, is historically common. It seems likely that in many, perhaps most, societies it was the original legal system on top of which later systems were constructed. I call it feud law.

Feud law is simple and straightforward: if you harm me, then I threaten to harm you until you pay damages. If you don’t pay, you hurt.

The authors list four requirements for Feud law systems to work:

First, threats need to only be effective for correcting wrongs, not as extortion.
Second, I have to be able to actually carry out my threats.
Third, the system has to work for everyone (see my #4).
Fourth, feuds must end. They can’t just go on forever.

It is interesting that the Somali system effectively has no legislature (neither does the Comanche). I suspect that for many groups–especially nomads–this was historically true, due to the nature of their existences and low population densities. In the development of law, it appears that judges came first; legislators and law-givers came second.

The authors then talk about the evolutionary origins of vengeance, which as discussed, is useful strategy:

That you will revenge yourself against anyone who wrongs you, even at considerable cost to yourself, is a reason not to wrong you.

The person who can enforce vengeance against others is strong; the person who cannot is a wimp:

Being known as a wimp lowers your status. It also marks you as a safe target for future wrongs.

The authors are fond of the idea that feud systems can work out for the good of everyone, even wimps, the weak, and poor people, if other people can gain status by taking on their cases for them. This hinges on people not deciding that “taking on cases for poor people is low-status,” “I’d rather take on this much easier case over here,” “I really just don’t care about your problems.”

From all of my reading about historical, decentralized, feud and feud-like legal systems, I must say that I am not convinced that any of them do a particularly good job. For starters, it is rather difficult to end a feud if the other guy is still pissed about. Second, the “money” paid out in feud systems is often taken from relatives (or others in your feud-insurance group,) which puts strain on a bunch of innocent people. Third, the “money” is often not money at all, but women and children, who become effectively slaves. (Think back to the child Okonkwo murdered in Things Fall Apart., because someone in the child’s village had murdered someone in Okonkwo’s village. Obviously the just solution is to… take someone’s innocent child and chop him up with machetes. Well, that is a solution that deters future crime, yes, but it fails on point three, because it harms someone who is innocent.)

… a number of existing legal systems show evidence of having been built on top of pre-existing feud systems.

The clearest example is Anglo-American common law. It evolved out of Anglo-Saxon law. Anglo-Saxon law, at least prior to its final century, was essentially Icelandic law plus a king. The king claimed that some offenses were violations of the king’s peace, hence that offenders owed damages to both him and the victim. Expand that approach enough and eventually the exception swallows the rule, converting all crimes into offenses against the crown alone.

We’ll be looking at the hard to believe it worked, if it did, English law in a bit.

The authors note that just because feuding is no longer the official legal way to deal with one’s problems, it still remains a very instinctive way, and the way folks who don’t have other legal options (like drug dealers) punish folks who’ve done them wrong:

Much of the crime in a modern society can be interpreted as private enforcement. A retaliatory killing in the course of a conflict among urban gangs is one example, a husband who discovers another man in bed with his wife and shoots him another.

It’d be interesting to see some data on this.

There is a summary of the Hatfields vs. the McCoys, which I will leave to you to read.

On to merry old England.

The two most striking anomalies are the institutions for prosecuting offenders and the range of punishments.

Prosecution was, in essence, private. There were no police, DAs, or taxpayer-supported Constables, but you could hire your own:

A victim of a crime who wanted a constable to undertake any substantial effort in order to apprehend the perpetrator was expected to pay the expenses of doing so. … Any Englishman could prosecute a crime… It was up to him to file charges with the local magistrate, present evidence to the grand jury, [etc].

The English were opposed to the idea of a professional police force on the grounds that such a thing was “French” and “tyrannical.” (As the authors point out, though, it is the French system that went down in the flames of Revolution and the English system that persisted, so… maybe the English were on to something.)

This system of people prosecuting crimes themselves was, as you might have guessed, a pain in the butt. Poor or busy people who’d suffered a crime generally didn’t have the resources necessary to bring a case to trial, so the government decided to fix things by offering rewards for the conviction of serious crimes.

Naturally, criminals started framing innocent people just to collect the fines:

The most famous of the resulting scandals involved the McDaniel gang who, when one of hteir plots miscarried and they were themselves tried, turned out to have been responsible over a period of about six years for the transportation of two men and the hanging of six and to have received a total of 1,200 pounds in state rewards.

Paid police were introduced in London in 1829, and later to the rest of England.

The authors then note that the strange thing is that this system functioned at all, though I suspect it functioned mostly despite itself, due to the character of the English people and community-level mechanisms such as reputation and social standing.

The other oddity of English law at the time (at least from a modern perspective) is the relative lack of intermediate punishments. Criminals could be hanged, banished, sold into slavery in a foreign country, or pardoned. The moderate punishment of a few years’ imprisonment was rare, most likely because it would have required the building of expensive physical infrastructure (prisons) and staffing them with paid jailers, and the English were obviously leery of putting any taxpayer money into their criminal justice system.

The prisons of the eighteenth century, when they existed, were pretty awful. (I have posted about prisons before.) Rat-infested, unheated, unventilated (though sometimes there were massive cracks in the walls that made them far too ventilated,) no toilets; in general, if you went to prison, there was a good chance you would die there.

As for the offenses themselves, the British had an interesting way of raising their overall IQ:

“Benefit of clergy” originated as a legal rule permitting clerics charged with capital offenses to have their cases transferred to a church court, which did not impose capital punishment. “Cleric” came to be defined as anyone who could read…

Clergyable offenses were offenses for which, absent benefit of clergy, the punishment was death. Manslaughter, for example, was a clergyable felony.

It sounds like this started as the church exerting independent power and claiming the right to punish its own, separate from the secular authorities, with the government potentially going along with it because people who could read were too few and far between to hang, and gradually evolved as literacy spread.

Once the British developed good boats and colonies, they realized they could just get rid of their annoying criminals. At first, they sold them into slavery, though the book shies away from calling it that:

Transportation was by private merchants. A merchant who wished to transport a felon was required to pay the sheriff “a price per head…” After transporting the felon to the New World, the merchant could sell him into indentured servitude…

Merchants made good profits on young, healthy people who’d make good slaves, but old or useless prisoners couldn’t be sold for much and so languished in holding cells.

Transportation became rarer because the receiving colonies began passing laws against it–for some reason respectable folks in Virginia and Maryland didn’t want the English dumping a bunch of criminals into their communities.

Eventually the government decided that instead of selling prisoners to the merchants, they’d get rid of more prisoners if they paid the merchants to take them. They were still sold into slavery on the other side of their journey, however.

As Wikipedia put it:

In England in the 17th and 18th centuries criminal justice was severe, later termed the Bloody Code. This was due to both the particularly large number of offences which were punishable by execution, (usually by hanging), and to the limited choice of sentences available to judges for convicted criminals. With modifications to the traditional Benefit of clergy, which originally exempted only clergymen from civil law, it developed into a legal fiction by which many common offenders of “clergyable” offenses were extended the privilege to avoid execution.[10] Many offenders were pardoned as it was considered unreasonable to execute them for relatively minor offences, but under the rule of law, it was equally unreasonable for them to escape punishment entirely. With the development of colonies, transportation was introduced as an alternative punishment, although legally it was considered a condition of a pardon, rather than a sentence in itself.[11] …

During the Commonwealth, Cromwell overcame the popular prejudice against subjecting Christians to slavery or selling them into foreign parts, and initiated group transportation of military[14] and civilian prisoners.[15] With the Restoration, the penal transportation system and the number of people subjected to it, started to change inexorably between 1660 and 1720, with transportation replacing the simple discharge of clergyable felons after branding the thumb. Alternatively, under the second act dealing with Moss-trooper brigands on the Scottish border, offenders had their benefit of clergy taken away, or otherwise at the judge’s discretion, were to be transported to America, “there to remaine and not to returne”.[16][17]

Probably some of my great-great-ancestors in there.

The Transportation of convicts to Australia is well-known, but plenty of American colonists started out the same way. I don’t know how many were transported–Wikipedia gives estimates between 50,000 and 120,000 for North America and 162,000 for Australia.

The Encyclopedia Virginia has an interesting paragraph contrasting Indentured, Convict, and Slave labor: 

Indentured servants voluntarily entered into the master-servant arrangement for a specified number of years (between five and seven), made the decision themselves to go to the colonies, and had to be given a freedom fee, clothes, and seeds at the end of their service. Thus, it was more economical for some planters to purchase British felons who also served for seven years in most cases, but who did not have to be paid at the end of their term of labor. The purchase price of convicts was also lower than that of indentured white and enslaved African laborers. Late in the colonial period, a male enslaved person cost between £35 and £44. Most male convicts sold for less than £13 and the women for £7 to £10. Even semiskilled convicts could be purchased for £7 to £14 and skilled felons for £15 to £25. A final inducement for buying convicts came from the fact that because they were already outlaws from society’s rules, they could more easily be exploited.

The transportation of convicts to the US basically stopped due to the American Revolution, which probably caused an uptick in demand for other, more expensive varieties of slaves.

Ugh, cheap labor is such a horror show.

Back to the book. The authors note that juries did not always convict people to the full extent of the law:

In other cases the jury failed to include in its verdict features of the crime, … that would have made it non-clergyable the combined effect of acquittals and conviction for a lesser… offense was that, in the sample examined by Beatte, fewer than 40% of those charged with capital property felonies and fewer than 25% of those charged with murder were actually convicted of those offenses.

Of course, in the US system, something like 95% of criminal cases end in plea bargains rather than court cases of any sort.

Convicts could also be pardoned, which resulted in only 16% of those charged with capital crimes actually hanging. (This is still much higher than in our system.)

Evidence that this system worked comes in the form of crime statistics:

Beattie’s figures, based on homicide indictments per capita, suggests that rural homicide rates fell more than fourfold and urban about ninefold between 1660 and 1800. … it seems likely that much, perhaps most, of the drop in the crime rate between 1660 and 1900 occurred prior to the introduction of paid police.

This is in line with the generalized drop in homicide that we’ve seen across the developed world over the past thousand years:

homicide_in_europe_1200_2000

Murder rates tend to track pretty well with development level and IQ, though it’s not clear whether reducing murder makes it easier for people to do business, or raising standards of living makes people less likely to murder each other, or making people smarter makes them less likely to murder each other and better at doing business–but it’s probably all of the above.

World-Murder-Rate-Geocurrents-Map-1024x726

Either way, given the nigh-universality of these trends over time and space, I suspect they don’t have as much to do with the specific penal institutions of 17th and 18th century England and more to do with things like “the rise of capitalism” or “the Hajnal Line.”

The authors discuss a number of other potential mechanisms to make the British system more workable, including, essentially, prosecution insurance groups, ie, an association for the prosecution of felons.

Thousands of prosecution associations were established in the eighteenth and early nineteenth centuries. I interpret their main function not as insurance but commitment.

(That is, demonstrating to a potential thief a willingness to prosecute him.)

There was also a system that was similar to our plea bargains, which let criminals (or people accused of crimes) pay off the prosecutor and not go to trial. This benefited the prosecutor (who still got paid) and the defendant (who didn’t hang or go to the colonies.) This sounds rather similar to the Gypsy system of threatening to report each other to the local legal system if the other person doesn’t stop misbehaving.

Viewed from this standpoint, cases that went to trial represent failures, not successes, of the system.

Well, that is an interesting interpretation of the legal system being so unworkable that it functions as an effective extortion threat.

The tactic of starting a prosecution in order to be paid to drop it is familiar in the literature on malicious prosecution.

Yeah, that’s what I was thinking.

The authors then discuss why England lacked much in the way of imprisonment, agreeing with my assessment that it was just too expensive.

As for enslaving prisoners, outside of the colonies:

I conclude that galley slaves, at a time when galleys were still militarily useful, probably produced services worth more than the cost of guarding and maintaining the slaves but in other employments France, like England, found that prison labor cost more than it was worth.

Slaves are bad workers.

The authors neglect the enslavement of Scottish coal miners, though.

The authors delve into the role of pardons and paying off prosecutors, and conclude that the majority of convicts getting off with lighter sentences than the ones prescribed by law isn’t necessarily a bad thing (especially if the laws were improperly harsh to start with) if the occasional very public execution of a criminal is frightening enough to make potential criminals afraid to commit crimes. Humans do not generally sit down and work out the exact odds of getting caught and convicted before committing a crime, but watching someone die publicly and painfully can make a sharp impression. Thus only the occasional real enforcement of the full penalties may have been necessary to keep down crime more generally.

In conclusion, I am not quite in agreement with the authors that this was a reasonably good system despite itself. I think the British managed to find workarounds to compensate for a mediocre system. I suppose the distinction I am drawing here is bottom up vs top down. I think if you tried to impose this system on a different group of people, you’d end up with different outcomes because they would invent different informal ways of routing around the system’s inefficiencies, which means the relative “success” of the system is really the success of the people in it.

If I am going to recommend a particular set of rules, those rules should be independently functional, not only functional because people ignored them and set up alternative rules to abide by.

But perhaps I am being too picky, and this is always the way of modern legal systems–top down rules imposed by the powerful combined with bottom-up institutions created by emergent social behavior.

 

Well, that’s all for now. What did you think of the chapter? Any thoughts on the (very short) section on the development of English law over the past millennium? Take care, and we’ll read more in a week.

Law of the Plains

Welcome back to our discussion of Legal Systems Very Different from Ours. I know we normally hold book club on Mondays, but since I spent most of Monday just laying the groundwork necessary to be able to discuss Comanche, Cheyenne, and Kiowa law, today we’ll actually jump into the subject.

Notably, the nomadic plains Indian lifestyle was not some ancient way of living the Indians had followed since time immemorial, but an essentially new invention enabled by the importation of the horse. Comanches started out as hunter gatherers and maybe sporadic horticulturalists in the Great Basin (Utah, more or less.) The Kiowa started out near the Canadian boarder in western Montana. They’re related to agriculturalists, but probably weren’t farming up in the black hills. And the Cheyenne hailed originally from the other side of the continent, descended from agriculturalists who were driven out of their homes by other Indians who’d gotten guns from the settlers. The Cheyenne also have a tradition stating that they intentionally decided to stop being farmers and become nomads; the other two groups were likely already nomadic before they got horses.

The authors write:

Faced with a sudden opportunity for progress, the chance to stop scratching in the earth as primitive agriculturalists and turn into noble savages hunting buffalo living in tipis and proving their manhood by making war on each other, the Indian tribes living on or near the Great Plains seized the opportunity.

Obviously I question whether the Comanche were ever agriculturalists, but the Cheyenne probably were. A better question is what happened to the other agriculturalist/horticulturalist peoples near the edges of the Great Plains like the Mississippian peoples, whose cities had largely disappeared by the time American settlers reached them.

Anyway:

The result was the development in the eighteenth century of a common material culture shared by tribes with quite different origins. It depended on the horse but also made good use of the rifle rifles having been initially provided by the English to tribes willing to fight tribes allied with the French and by the French to tribes willing to fight those allied with the English.

One thing I noticed while researching this chapter is that the eventual triumph of the settlers in the late 1800s by no means seemed guaranteed in 1800. Once they got ahold of horses and guns, the Indians held their own against American and Spanish/Mexican settlers for over a hundred years. Their eventual defeat was due to a combination of the railroad, increased wartime production of guns during the Civil War, the steel plow, irrigation techniques that opened up the Great Plains to agriculture, and overwhelming quantities of European immigrants that just kept flowing into the US. (Oh, and diseases.)

But anyway:

I start with the Comanche; their government is the simplest of the three to describe, since they did not have one. A Comanche war chief was simply an entrepreneur a warrior who announced his intent to go steal horses from the Mexicans Americans, or some other tribe and invited anyone interested to come along. Within the war party he had absolute rule, but anyone unhappy with the situation was free to leave.

I note that the Comanche seem likely to have had the simplest social structure before they obtained horses, so this might account for their simplicity after moving onto the plains.

In addition to peace chiefs and war chiefs, there was also a council.

The council consisted of respected elders whom everyone simply agreed were held in respect; there was no formal process for joining the council, nor any formal process for implementing the council’s decisions.

Generally the majority made little effort to impose its will on the minority, for, as in most Indian tribes, it was thought that agreement should be unanimous.

When your lifestyle involves riding horses around on the open plains at will, it is hard to impose your will on anyone because it is hard to catch them. If they don’t like you, they’ll just move away and go hunt somewhere else.

The Comanche, in other words were anarchists. Their social system included institution for coordination at the level of the individual band but nothing we would recognize as a government over either the band or the entire tribe.

The authors note that one of the theoretical problems with an anarchist society is convincing everyone to pay enough to contribute to the common defense; the Comanche solved this problem by making “providing for the common defense” extremely profitable to the individual–mostly by stealing their enemy’s stuff, raping their women and torturing the men to death.

I mean, it’s a solution, sure, but it’s a solution that didn’t exactly inspire their neighbors not to massacre them when they could.

Still, I’d like to contrast Comanche warfare–which probably bears a close resemblance to warfare as typically conducted throughout human history, plus or minus the horses and guns–with modern warfare. The US has been in many wars over the years, but hasn’t actually held onto any of the land it conquered since, well, the Indian wars (which we hardly even recognize as real wars). We conquered Cuba and the Philippines in the Spanish American War, but we no longer own these territories. We conquered big chunks of Europe and Asia in WWs I and II, but we gave France back to the French and Japan back to the Japanese. We gave South Korea back to the South Koreans and have basically tried to return Afghanistan and Iraq to local rule.

There might be some government fat cats or weapons contractors who make money off these wars, or they might potentially benefit us all in some grand, abstract way that you can’t really pinpoint in your daily life, but no common American has benefited from these conflicts in the direct, immediately obvious way of an Irish raider carrying off his neighbor’s cattle or a Comanche stealing another man’s wife. We’ve invented the concept of “just war,” and it seems that everyone hates it.

[The Comanche] drove the Apache from the southern plains raided the Mexicans for horses and slaves and, despite the disadvantage of lower technology and smaller population, blocked American expansion across Texas for decades, fairly earning the title of Spartans of the plains.

In this case, it’s not about tech, it’s about mobility and the ability to survive largely off theft.

… they made warfare into a private rather than a public good. for most of their history, the incentive to fight was not the welfare of the tribe but the individual warrior. Successful raids produced valuable loot. Heroic and successful fighting produced status.

I think there is still some status in being a soldier, but not much. We might say that modern governments have appropriated for themselves the spoils that would rightfully go to their soldiers.

On the other hand, modern soldiers get paid.

On wife stealing and family structures:

The strongest bond within the tribe was between brothers who, among other things, shared their wives and had the power to marry off their sisters. [Note: maybe] From the standpoint of the brother the ideal brother-in-law was a wealthy and successful warrior. The sister might prefer someone [else]… and given the opportunity, leave the husband chosen for her by her brothers to run away with one such. The incentive of the wife stealer was less possession of the wife than the opportunity to outface the husband.

Wife stealing was carried out openly, followed by demands of compensation from the original husband. Of course, with no police or prisons to enforce the demand for compensation, the only real threat the aggrieved husband can make is that of killing the thief.

Carrying out that threat was neither desired nor likely, since if the husband killed the stealer (or vice versa) the victim’s kin would take revenge by killing the killer. The intended result of the threat was to set off the game that economists call bilateral monopoly.

So each side calls up whatever resources it can to back up its threats and then one side pays up.

Of course, if a man suspected his wife of adultery, he could just torture or kill her. After all, men are stronger than women and there weren’t any police or prisons to protect them from violent spouses.

Cases of wife stealing and adultery seem to have been the nearest thing to legal disputes among the Comanche. … One possible resolution was for the wife to swear by earth an sky that she was innocent, at which point the husband accepted the oath… The same approach was used to settle some other disputes, such as disagreements as to which member of a war party had counted coup on an enemy… As far as minor theft was concerned, the Comanche, like the other two tribes I will discuss, regarded such matters as beneath the notice of a warrior. As a Cheyenne would have put it, “if you had asked, I would have given it to you.”

What we regard as extreme generosity is often noted of nomads. It’s in part due to the fact that nomads simply cannot store up large amounts of stuff. They don’t store grain for winter because they don’t farm and they have nowhere to store it. As a result, nomads–especially nomadic hunters–always face the threat of simply having a couple of bad weeks and running out of food. Nomadic economies work better when people share food (and hunting weapons) fairly freely, especially from large kills such as buffalo that a single man can’t hope to eath by himself, anyway. This doesn’t mean that people lose their sense that “This is my arrow because I made it myself,” but it does result in a lot of sharing, some voluntary, some very socially enforced.

We see as well the abundance of the nomadic lifestyle. Certainly they had fewer physical belongings than we do–since they can’t carry that much around–but what they did have, like horses and buffalo, they had in abundance. This abundance is partly due to the fact that they stole a lot of horses from other people, so they didn’t have to put in the hard work of raising them themselves, and yes, it is easy to be generous and happy when you are living off the fat of another man’s labor, and partly because they had a low population density on an open plain that was full of giant herds of delicious animals.

Low population + tons of resources = happy people.

The more people are trying to share a certain area or set of resources, the less there is to go around, the less “wealth” each person feels they have, the less freedom, less happiness, more hoarding.

From Footnote 441:

“From the liberality with which they dispose of their effects on all occasions of the kind it would induce the belief that they acquire property merely for the purpose of giving it to others.” (Neighbors 1853, 134)

I am reminded as well of a by now only vaguely remembered passage in which some missionaries or others initiating contact between the settlers and plains Indians gifted them with necklaces, beads, and other sundry products of civilization which they thought fine presents, and which the Indians happily received. Then when time came to break up camp, all of the new gifts were abandoned, trampled underfoot in the process of getting underway and left behind in the mud. Of course the missionaries probably saw this as some failure to value items of wealth or perhaps ingratitude, but to nomads who have to physically pack up and haul all of their belongings from place to place, additional stuff that doesn’t have hooves quickly acquires negative value.

The value of a gift-giving network, though, is much greater than the value of any individual item that passes through it. Through such networks travel not just trifles like beads and necklaces, but things of substantial value like food, horses, weapons, wives, or allies, so it makes perfectly reasonable sense for a man to obtain something simply for the sake of giving it away.

What about murder? As already mentioned, a first killing required a second, of the killer by the kin of his victim. At that point the matter ended. … For these purposes, killing a favorite horse, thought of as having a soul, counted as murder and so justified the killing of the responsible human in revenge.

The Comanche believed in magic and sorcery, and might kill a man believed to be killing people via lethal magic, but don’t appear to have believed in it strongly enough to make killing the sorcerer mandatory (a rare show of good sense in the ethnographic record on sorcery).

Occasionally the whole tribe might come together and decide that a particularly bad medicine man deserved to die and killed him.

The Kiowa:

The Kiowa, while in some ways similar to the Comanche, had something a little closer to a government and much closer to a well-defined class/rank system. The latter consisted of four classes. The Onde were the high-status warriors… they are estimated to have been 10% of the men. The Ondegupta were the would-be Onde… Not surprisingly, the Ondegupta were the chief source of conflict within the tribe as they… tried to gain status. Below them were the common men and below those the Dapom, the dregs of society. … Kiowa bands had recognized headmen, almost all of Onde rank, who in practice made important decisions for the band.

There were also ten “medicine bundle” keepers and one “keeper of the Sun Dance fetish,” the nominal grand chief of the tribe. In case of disputes, the medicine bundle keepers would hear out both sides and help them come to an agreement about an adequate resolution and compensation.

If someone was killed, the killer might be killed in retaliation by his victim’s kin or they might accept compensation, the equivalent to the Icelandic wergeld or the payments that atoned for killing under Islamic law or among the Somali.

This seems to be a very common pattern. It’d be interesting to see a broad cross-cultural comparison of the communities where it is (or was) common vs the ones where it isn’t.

The Kiowa and Cheyenne had military fraternities or warrior societies. Wikipedia reports:

Like other plains Indians, the Kiowa had specific warrior societies. Young men who proved their bravery, skill, or displayed their worth in battle were often invited to one of the warrior societies. In addition to warfare, the societies worked to keep peace within the camps and tribe as a whole. There were six warrior societies among the Kiowa.[24] The Po-Lanh-Yope (Little Rabbits) was for boys; all young Kiowa boys were enrolled and the group served mostly social and education purposes, involving no violence or combat. The Adle-Tdow-Yope (Young Sheep), Tsain-Tanmo (Horse Headdresses), Tdien-Pei-Gah (Gourd Society), and Ton-Kon-Gah (Black Legs or Leggings), were adult warrior societies.[25][26] The Koitsenko (Qkoie-Tsain-Gah, Principal Dogs or Real Dogs)[27] consisted of the ten most elite warriors of all the Kiowa, who were elected by the members of the other four adult warrior societies.[28]

As for the Cheyenne:

Specific warrior societies developed among the Cheyenne as with other plains nations. Each society had selected leaders who would invite those that they saw worthy enough to their society lodge for initiation into the society. Often, societies would have minor rivalries; however, they might work together as a unit when warring with an enemy. Military societies played an important role in Cheyenne government. Society leaders were often in charge of organizing hunts and raids as well as ensuring proper discipline and the enforcement of laws within the nation.[23] Each of the six distinct warrior societies of the Cheyenne would take turns assuming the leadership role within the nation.[24] The four original military societies of the Cheyenne were the Swift Fox Society, Elk Horn Scrapper or Crooked Lance Society, Shield Society, and the Bowstring Men Society. The fifth society is split between the Crazy Dog Society and the famous Dog Soldiers. The sixth society is the Contrary Warrior Society, most notable for riding backwards into battle as a sign of bravery.[6] All six societies and their various branches exist among the Southern and Northern Cheyenne Nations in present times.

The Dog Soldiers have their own Wikipedia page, with a photo of a fellow in an excellent headdress.

The Dog Soldiers or Dog Men (CheyenneHotamétaneo’o) are historically one of six Cheyenne military societies. Beginning in the late 1830s, this society evolved into a separate, militaristic band that played a dominant role in Cheyenne resistance to the westward expansion of the United States in KansasNebraskaColorado, and Wyoming, where the Cheyenne had settled in the early nineteenth century.[1]

After the deaths of nearly half the Southern Cheyenne in the cholera epidemic of 1849, many of the remaining Masikota band joined the Dog Soldiers. It effectively became a separate band, occupying territory between the Northern and Southern Cheyenne. Its members often opposed policies of peace chiefs such as Black Kettle. In 1869, most of the band were killed by United States Army forces in the Battle of Summit Springs. The surviving societies became much smaller and more secretive in their operations.

Apparently they’re still around.

On to Cheyenne law:

Of the three tribes, perhaps of all the Plains Indians, the Cheyenne came closest to having a government–part of the year.

That might be because they started out as agriculturalists with a more complicated social system.

The entire tribe, possibly as many as four thousand people, gathered together in a single camp in summer when food was plentiful.

That sounds pretty nice.

During the winter the tribe separated into much smaller bands and dispersed in search of game.

The summer encampment had a government, the Council of Forty-Four as was probably necessary for coordinating 4,000 in close proximity. Once every ten years, the members of the Council chose a successor for themselves. You couldn’t name yourself as your own successor, but someone else could.

Each of the soldier societies had two chiefs, functioning as war chiefs, and two “servants,” lower-level chief responsible for a particularly dangerous part of the defense against attackers.

Of course, anyone could organize a war party if they wanted to and could get anyone to follow him.

The council was responsible for making decisions about war or peace… deciding cases of homicide or whether to permit the readmission of an exiled killer, and deciding the movements of the tribe in search of game. …

A further responsibility of Council was to control the buffalo hunt… The basic rule was that nobody was to attack a buffalo until the word was given, at which point the line of hunters would charge the herd, with the ends of the line wrapping around to entirely enclose it.

There follows a description of what happened to two lads who, being full of teenage spirit, entered the buffalo hunt before the signal was given. The tribe caught up with them, whipped them, killed their horses, and broke their guns.

The boys and their father apologized, and the tribe forgave them:

“Look how these two boys are here in our midst. Now they have no horses and no weapons. What do you men want to do about it?”

One of the soldiers spoke up. “Well, I have some extra horses. I will give one of them to them.” Then another soldier did the same thing.

Bear Standing on a Ridge was the third to speak out. “Well,” he announced, “we broke those guns they had. I have two guns. I will give them one.”

All the others said, “Ipewa, good.”

There is another interesting story about a man who borrowed a horse, then kept it for a year. When the owner finally got antsy and asked for it back, he returned it with a second horse in apology for keeping the first for so long. The original owner, having done without his horse for so long, didn’t need two, and so sent the original back to the borrower, since he seemed to like it so much.

Beating up another Cheyenne was between you and him. Killing another Cheyenne meant exile from the tribe.

The reason, as they saw it, was not punishment but hygiene. Killing a fellow Cheyenne polluted the medicine arrows that were one of the tribal fetishes… Until the arrows had been ceremonially renewed and the killer exiled, no luck could be expected in hunting or warfare.

Exile was not lethal; there were other friendly tribes on the plains.

Eventually the exiled man could return to the tribe if the victim’s kin were okay with it, but he was still seen as somewhat polluted.

Llewellyn and Hoebel see the combination of temporary exile and permanent pollution as successfully replacing feud, evidence of the superiority of the Cheyenne institutions to those of other primitive societies.

It was probably only a partial replacement, though.

So that’s the end of the chapter. Definitely more material on the Comanches than the Kiowa or the Cheyenne, but I hope it was adequate.

Dlíthe na hÉireann: The Laws of Erin

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Cu Chulainn, from the Cattle Raid of Cooley

Welcome back to Legal Systems Very Different from Ours. Today we’ll be discussing Irish law, insofar as we can reconstruct what it looked like over the centuries before England invaded.

Ireland is one of those countries that it has become popular to over-mythologize, especially in certain New Age/Wiccan circles, so I am always a little skeptical about Irish-related claims–I’m in the uncomfortable position of knowing a lot, but not knowing how much of what I know is actually true.

People want Ireland to be this eternal place with a deep connection to Europe’s mythic past, perhaps because it wasn’t conquered by the Romans, or perhaps because it retained a more primitive agricultural/herding economic system for longer than its neighbors (which strikes me as probably just an accident of geography.)

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“Hunter gatherer’s camp at Irish National Heritage Park Exhibit showing how a 7000 B.C. campsite of Mesolithic period hunter gatherers would have looked. They were nomadic and built temporary houses. Wood, bone and flint were the materials of their tools. They fished using dugout canoes – there is one in the photo.” More photos in the park Credit to David Hawgood  

Ireland was settled relatively late, by European standards, because it was covered by glaciers during the last Ice Age. (If humans lived there before the Ice Ages, we have no evidence of them.) The first (known) humans showed up around 12,500 years ago, but we don’t know if they stuck around; evidence of really continuous habitation doesn’t show up until 10,000 years ago.

These folks were hunter-gatherers who built simple shelters that would have made the first little pig proud.

Around 6,500 BC, Ireland’s hunter-gatherers were conquered by farmers, known as the Linear Pottery Culture or LBK. LBK originated around Anatolia and raised sheep, goats, cattle, wheat, and barley. They also appear to have introduced red deer to Ireland. (I suspect wheat that originated in the Middle East originally struggled to grow in Ireland, but sheep did fine.)

The hunter-gatherer population of Ireland was never very big–Wikipedia estimates it around 8,000 people. The farming/herding population was much bigger, around 100,000 or more.

The LBK people also brought the practice of building stone monuments, such as the famous Newgrange, built ca. 5,200 years ago.

Metallurgy arrived with a new group of people, the Bell Beaker, around 4,500 years ago (2,500 BC). They were probably Indo-European speakers but we don’t know which language they spoke; Irish proper probably arrived a little later, with the Celts. This era is marked by the production of metal objects–jewelry, swords, axes, etc–and of course the development of mining and long-distance trade.

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Reconstruction of a Crannog (technically, this one is located in Scotland.) By Christine Westerback  

Housing changed in a rather distressing way–people began constructing their huts (called crannogs) on platforms built in the middle of lakes. This is how you build when either the fishing is very good, or the invaders are very nasty.

As far as I know, the Celts arrived around 500 BC, which on the scale of ancient human migrations wasn’t that long before the Romans invaded Britain, a mere 450 years later.

This is the society whose laws were variously recorded when literacy reached Ireland a few hundred years down the line, around the 7th through 12th centuries CE. The Tain Bo Cuailnge (pronounced “cooley,” because Irish likes to throw in extra letters, but honestly, English has words like “through”, so who are we to judge?) or “Cattle Raid of Cooley,” written in the 12th century (though it may be based on manuscripts that were written centuries earlier and just haven’t survived) about events in the first, offers some insight into the political structure of pre-British Ireland.

Insights from the Tain:

  1. Ireland was ruled by multiple kings, not a single high king
  2. Some of the rulers were women
  3. Wealth was counted in cattle
  4. Particularly nice cows/bulls might be traded or lent for political reasons
  5. Sometimes cattle were stolen; particularly successful cattle raids were immortalized
  6. Warrior culture

There are hints in these stories of the archaeological record–of course, the Irish histories speak explicitly about the migrations of different peoples to Ireland; Cu Chulainn (the hero of the Tain) is himself half Gael and half Tuatha de Danann–depending on the source, the Tuatha are a conquered people, fairies, gods, or people who worshiped a particular god (or goddess).

I propose a fairly straightforward sequence of events: The Celts (or Gaels) invaded and, after some conquering, married a fair number of the locals. In some areas bands of locals and invaders lived side by side for some years; many advantageous marriages may have been conducted to join the estates of local chiefs with invading warriors, and notables like Cu Chulainn with mixed ancestries may have been fairly common. Alternatively, the ancestry may be a bit more attenuated, like when certain American whites claim a smidgen of Native American ancestry. (*cough* Elizabeth Warren *cough*)

The conquering of a bronze-age people by an iron-age people might be remembered in the claim that “fairy folk” have no iron or are allergic to iron. I’d be allergic to iron, too, if the iron were a spear slicing open my intestines.

At any rate, some of the conquered people might have retreated into the hills and bogs and other unappealing places, eventually becoming a memory of an impoverished, violent, “fairy race;” elsewhere, rulers keen on presenting themselves as legitimate to all of their subjects may have played up their semi-mythic Tuatha ancestries, even turning their ancestors into a kind of ancestral cult which eventually resulted in elevating them to the levels of gods and demi-gods.

Or perhaps this is all nonsense speculation. Let’s get on with the book:

Ireland at the beginning of the fifth century was a pagan country with a rich oral literature and an elaborate legal system, also oral. …

Whoever the authors [of the legal texts] were, they showed a strong conservative bias, recording not only legal rules still in practice in the seventh and eight centuries, when the texts were written down, but older rules as well. Their writing thus provides a somewhat blurred window on the pre-Christian legal system, which may have preserved institutions going back much further, possibly as far as the period before the different Indo-European languages separated. The evidence for that conjecture is in part linguistic, similar words in different Ind-European languages connected with the same legal/political institutions, and in part comparative, features that the early Irish legal system shared with ancient Indian law.

This is a fascinating idea which the authors never return to or develop at all in this chapter. We’re never told which terms in Irish law are cognate with terms in other legal systems, nor which traits it shares with the Indian system. (Maybe they’ll get around to it in a future chapter?) People have this funny habit of assuming that Irish things in particular are ancient survivals from ancient Europe, but why would Ireland in particular have any more ancient Indo-European survivals than, say, Germany? or Russia?

To the extent that Irish law looks like Indian (or Somali) law, I’d posit that 1/3 of the similarities are due to the needs of a herding society (Ireland and Somalia), 1/3 the dominance of a warrior elite over a conquered peasant class (Ireland and India) and 1/3 random chance/people  identifying parallels that aren’t really there. Overall, I suspect that Irish law developed in situ, in response to the particular situation in Ireland.

The Ireland described in the law books was divided into a large number of small kingdoms… modern scholars estimate hat there were about a hundred of them, with a population of a few thousand in each.

I feel like this is an abuse of the word “kingdom.” Shouldn’t these be “fiefdoms” or “clans” or “chieftanships” or something similar? The text supplies the Irish word “tuath,” which just means “people,” so I think “clan territory” is more appropriate.

A king might recognize the overlordship of another and more powerful king. … While the idea of a high king of all Ireland existed and the title was sometimes claimed, such a king is mentioned only rarely…

A king who is under another king’s rule isn’t a king.

For the most part, an individual had legal rights only within his own kingdom, although some special categories, such as poets and hermits, had rights elsewhere.

Good poets must have been in short supply.

An interesting custom:

… when the subject of one king was killed by the subject of another, both acknowledging a common overlord, the procedure for collecting the fine for the killing was initiated by the victim’s king taking a hostage, presumably a subject of the killer’s king, in the court of their overlord.

Getting your king to go out of his way to visit another king’s court and take a hostage sounds like an inconvenient way for the common man to achieve justice. I doubt it happened very often, except for cases involving rather prominent or powerful subjects/relatives of the king.

Within the clan, people were divided into kin groups, with agricultural land generally held within a group, called a derbfine, defined by a paternal great-grandfather.

The derbfine, like the much larger dia-paying group in the Somali system, was responsible for enforcing the rights of its members, if necessary by feud, sharing in the payment of damage payments by its members and the receipt of damage payments to its members.

The authors note that networks of mutual obligations, while good when you have debts, limit your ability to make contracts that might impose new costs or debts or obligations on everyone else in the network.

Kind of like how your health insurer would really appreciate it if you didn’t smoke.

Despite the occasional “warrior woman” or queen popping up in the sagas, Irish law wasn’t favorable toward women:

Marriage law recognized a range of possible relationships, depending both on the resources each party brought into the marriage and the degree to which the marriage had or had not been approved of by the women’s kin… A man would normally have a chief wife but could also have a secondary wife or concubine.

A woman was under the authority first of her father, then her husband, hen her sons, and had very restricted rights.

Fostering was common, though:

Fostering of children was a common practice that established a form of pseudo-kinship… a man’s foster father had a claim to a fraction of the blood-money if his foster son was killed…

Irish law was built around a status system similar to the Indian Caste system, which is probably a reflection of the realities of life in a conquered country:

An individual’s honor price determined what he 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 legal dispute.

The major categories of status were [noble], non-noble freemen, and unfree. Within each there was a range of sub-categories. …

[Nobles] had a variety of legal privileges, limiting the degree to which legal rights could be enforced against hem… One consequence… was to make contracting with them risky, since it might prove impossible to enforce the contract, a problem pointed out in the period sources.

There’s a system rather like feudalism or sharecropping, in which lords have clients who are provided land or animals in exchange for a share of the produce or other services.

Among the unfree, the major divisions were between the semi-free… who had no land of his own and no independent honor price, the hereditary serf, who was bound to the land, and the salve.

More than one level of unfree. Sounds awful.

Private Law:

The legal sources describe mechanisms for making and enforcing contracts that do not appear to depend on either royal courts or any centralized mechanisms for judgement and enforcement. But there are also references to what appears to be curial law, law enforced in the court of a king. …

Private contract law depended on a system of sureties, third parties with rights and obligations connected with the contract…

Freedom of contract within the system was limited by the network of mutual obligations. … A son was obliged to support his aged father, so a father could under some circumstances cancel a contract the son made that might reduce his ability to do so [and vice versa]. Husband and wife had mutual obligations which gave each the right to cancel some contracts made by the other, with the details depending in part on the nature of their marriage.

The derbfine also placed restrictions on the sorts of contracts and obligations the individual could have–in general, in systems where governments don’t offer social safety nets, such restrictions are the norm.

Anyway, if you did make a contract and then failed to fulfill it, after some back and forth announcements and mediation, the other party could come and drive away your cattle. People probably did not always allow their cattle to be driven away without a fight, though.

Of course, if you’ve entered into a contract with someone of higher social standing than yourself, you don’t get to just up and drive away their cattle. The king has more soldiers than you do; good luck.

So if a king or other noble has wronged you, the proper procedure was a kind of ritual fast outside the noble’s house. For whatever reasons, the nobleman was obliged not to eat while the fast was going on, until he had satisfied the claim against him. How exactly this was enforced, I don’t know. Maybe shame.

More violent crimes, like murder, were settled like the Icelandic system, via feud and payment:

In both, offenses were expected to be open rather than concealed…

Just as in Somalia, there was a pre-existing coalition responsible for both pursuing feud on behalf of a wronged member and assisting with the payment of damages owed by a member.

Ireland did have some sort of court system, with professional judges and lawyers; after a promise or physical pledge to abide by the judge’s decision, the case proceeded in a manner fairly similar to modern courts.

As in Jews and Islamic law, the legal procedure might include the swearing of oaths; under some circumstances someone accused of an offense could defend himself by swearing the charge away. …

the force of an oath was linked to the honor price of the person swearing it; a higher-status individual could overswear a lower-status.

This isn’t really a system that looks out for the little guy, but if several little guys teamed up, they might be able to get their oaths to add up to the same value as higher-status person’s.

Women’s oaths were only accepted if no one else could be found to swear on a thing. In general, they weren’t allowed to be witnesses.

Disputes could also be settled via ordeal or duel.

 

That’s all for now. If anyone knows what these supposed parallels with Indian law or proto-Indo-European legal survivals are, I’d love to hear them.

Next week we’ll hop across the pond and discuss the Comanches, Kiowa, and Cheyenne.

Somali Law

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Somali veterinarian lifting a camel calf in the rural of Xudun district, Somalia. Photo by Cabdixamiid Xasan Cawad, Wikipedia

Welcome back to our discussion of Friedman, Leeson, and Skarbek’s Legal Systems very Different from Ours. Today we are discussing Somali law, specifically that of the pastoralists of northern Somalia (law works differently in southern Somalia, due to the different agricultural system and people there.)

I have often characterized Somalia as more of a place where other countries aren’t than a country proper. There is no real central government control of most of the territory known as “Somalia,” though things have apparently been stabilizing a bit over the past few years–a mere 500 people were killed by bombs in Mogadishu, Somalia’s capital, in 2017.

Somaliland–the northern part of Somalia–has about 4 million people and 68,000 square miles bordering the Gulf of Aden, for a population density of about 65 people per square mile. (For comparison, the US has a density of about 91 people per square mile, but we also have Alaska.)

The per capita GDP is about $347 a year, which is to say, it’s a subsistence economy:

According to the Central Bank of Somalia, about 80% of the population are nomadic or semi-nomadic pastoralists, who keep camelsgoatssheep and cattle. The herders also gather resins and gums to supplement their income.[1]

There’s also some fishing and a few crops, but the area is pretty dry and not suited to growing much.

Most Somalis are ethnically Somali and speak the Somali language, which is at least easy to remember. The Somali language is a branch of the Afro-Asiatic family, along with Arabic and Hebrew, and the Somali people are similarly ethnically related to other Afro-Asiatic speakers. What percent of their ancestors have been in the area approximately forever and what percent arrived within the past few thousand years from Arabia or beyond, I don’t know, but Somalis look fairly distinctive to me.

The ongoing civil wars and low level of infrastructure development (like irrigation systems) results in a lot of human suffering, though I don’t know how it is distributed through the country–this famine happened in the southern part of the country.

The authors argue that the suffering of the Somali people is not due to the inadequacy of local institutions, but due to colonial authorities trying to impose foreign institutions like “states” and “democracy” on a people who were entirely unsuited to them:

The exiting colonial powers set up a democratic central government, possibly not the best option for a society whose traditional institutions were decentralized and stateless. The democracy lasted for nine years… the central government disintegrated and the Somalis were back with their traditional system.

With two differences. First, the experience of a past central government and the expectation of a future one encouraged some… to engage in a power struggle aimed at putting themselves in the profitable role of rulers… Second, outside powers, acting through the UN in the belief that the country needed a central government, attempted to reestablish one… The result has been an extended period of violence and chaos…

There’s a lot going on in these two paragraphs. First, I grant that Somali history is probably complicated and this is probably an over-simplification, but civil war and anarchy are definitely part of the overall picture. Why Somalia should be such a basket case while nearby Ethiopia, which doesn’t seem that different and has also had plenty of suffering over the years, should still have something resembling a functioning government, I don’t know.

Second, some comparative before and after data for places like Somalia, Ethiopia, and Tanzania might be useful when it comes to statements about the role of colonialism and violence, since this would allow us to make some comments on its effects (Ethiopia: no colonization, still mass famines; Tanzania, colonized, seems pretty stable.)

We can also ask whether it was the experience of central government that prompted people to try to conquer Somalia, or the availability of machine guns and armored vehicles.

Either way, the thesis that outside powers acting through the UN just managed to muck things up even more than they were before doesn’t sound unreasonable.

But let’s get to the legal system:

While Somaliland has a government… it is a government based on traditional institutions with an upper house of clan elders and one that appears for the most part to defer to customary law privately enforced in the traditional manner…

The Somali legal structure runs through clan-based kinship structures, which is to say it’s based on the needs of a pastoral community. To briefly review, in case you don’t remember the series on pastoral herders I did a couple of years ago, pastoralists (herders) generally own a combination of personal and communal herd animals which move around within a communal system of land/grazing rights. It is rare for herders to simply own their own herd on their own plot of land, because animals need a lot of land–more land than most individuals can own, unless population density is really low. Herd animals naturally migrate and move around depending on the rain, temperature, predators, grass, etc. A small herd may need fewer pounds of feed per day, but it still needs to travel equally long distances to get to summer pasture, winter pasture, etc., or else it depends on someone transporting food to it (our strategy in the US).

So it’s impractical for individual herd owners to each own enough land for their personal herds, (you’d have to be extremely wealthy), but it is practical for groups of herders to collectively control large chunks of land and move their herds around communally on them.

Of course, individual people still put in individual labor to care for their herds–individual ownership is useful–so individuals have claims to particular animals, but not always the ones they are directly caring for. For example, a man might have a herd of his own, but a particular billy goat is actually his cousin’s, borrowed for the sake of making more kids. A portion of the kids and the milk made by the nannies are therefore also his cousin’s, but his cousin may not come to collect them for several years, during which time the kids grow up, are eaten, and replaced. Sooner or later his cousin does come calling (say, because he needs to gather goats to pay for his son’s wedding).

And likewise, the man may have claims on goats in several of his relatives’ herds, or the whole family may pool all of the goats together and send the kids out to watch them, and everyone knows they get a 10% share of the herd.

Different people in different places obviously develop different systems, depending on the nature of the geography, the animals, and the local culture, but the important thing is that herds, even when they are individually owned, are very communal and run through kinship.

Every Somali memorizes as a child his genealogy through the paternal line up many generations, an important piece of information since it defines his relationship to every other Somali. … The closer the linkage between two Somalis–the smaller the number of generations to a common ancestor–the more likely they are to be allies. …

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 sons from whom he is descended.

I suspect that this maps very closely to how herds are managed and shared, because you do not want to anger the people who have your goats.

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.

Somalis don’t just rely on kinship groups, though. They have insurance clubs, like Triple A but for in case someone stabs your camel instead of flat tires.

The dia [blood money]-paying group is responsible for paying for offenses by its members, collecting for offenses against its members, and in the the latter case, using force or the threat of force to obtain payment. … The dia-paying group’s membership and internal rules are defined by explicit contract.

After all, if you have no prisons, what kind of long-term punishments do you have? Fines. And without banks or much in the way of hard currency, wealth is stored in herd animals, and the value of a man’s life, like that of a corporation, is not immediately available. It’s earned over time. The collective amount he has available to draw on is the collective herd owned by his kinsmen (or dia-paying group) just as they can draw on his herds, in turn, to pay their debts.

Dia-paying groups are usually between 300 and 3000 men. Too small, and the cost to each individual is too high; too big, and internal conflicts split the group.

There doesn’t appear to be (traditionally) an real legislature that passes laws, perhaps because no one had the power to do so. Instead, individual dia-paying groups establish their own laws by explicit contract, and questions of application are up to local judges.

I wonder how the contract-making actually works, though. Are they written contracts? (Only about 50% of Somali men are literate.) Is there some official way to register them? How do you keep track of who has paid up and who hasn’t?

Anyway, judges make their decisions, and if people like their decisions, they keep using that judge. If they think that judge makes stupid decisions, they can switch to a different judge. If people like a judge’s decisions and he makes a lot of decisions on new topics, a kind of informal case law builds up that future judges may rely on. (Judges, at least, are probably literate.)

… matters of marriage and inheritance are usually brought before a judge who applies Koranic law, almost all Somalis being Muslims.

This would normally require literacy, of course.

The schedule of payments of blood-money for death or injury is based on that in Islamic law, modified by custom and contract, with the amount sometimes larger or smaller depending on the relationship between offender and victim.

Note that this system is run by men; women who are victims of violence (there’s a lot of rape in Somalia,) have less support.  Refworld notes:

If the rapist is from another clan, the clans will often settle the conflict through the system of a diya payment. It is the males of the clan who negotiate the price, sometimes against the wishes of the victim, and the settlement money often stays with the male relatives (Africa Watch 4 Oct. 1993, 18).

Predictably, a woman’s life is worth half as much as a man’s.

Somali political institutions at the clan level exist but are limited. …

Was it always this way?

When a dispute arises between members of different dia-paying groups the elders from each side form a court with themselves ad judges, ask the parties to state their cases, hear witnesses and state a verdict. … If force is needed to make the losing party obey the verdict in an intra-clan dispute, the judges can recruit all able-bodied male villagers for the purpose…

Thus the Somali system is ultimately a feud system, one in which law is enforced by the private application of force or the threat of force, but a feud system with institutions for avoiding violence via widely respected mechanisms to arbitrate disputes.

I’m not sure what he means by “private” here. Obviously it’s not state-based, since there is no state. But since this is the (apparent) government structure, it’s still the government. It’s just a smaller-scale system.

I’d like to see some actual data on how good it is at curbing violence, though, before he declares it successful. There’s not a whole lot about Somalia that I’d describe as “successful.”

Interesting note on oaths sworn during trials:

One such oath consists of the oath-giver swearing by his marriage; if it later turns out that his oath was false, the marriage is dissolved.

Since marriages are also legal contracts involving the transfer of money/property/herd animals from one household to another, this is also a monetary pledge.

The punishment for murder is a life for a life; if the murderer flees, the aggrieved can just hunt down and kill some other random poor sap from the murderer’s family, because why the fuck not, they apparently can’t tell each other apart which really incentivizes your family to turn you over to the victims rather than help you flee.

Usually people accept blood money, though, hence everyone’s membership in blood money societies, because “oops I killed someone” insurance is apparently a thing people need in Somalia.

Somali legal rules for bodily injury have one other interesting feature. If a man seriously wounds another, his family must take the victim into their household and nurse him back to health–the same requirement as in ancient Irish law.

The Irish abandoned this law for obvious reasons (you don’t want to be “nursed back to health” by a guy who wants you dead) and I bet the Somalis have, too.

There are a variety of regulations on grazing land, though it is mostly first come, first serve. Some agricultural land is semi-privately owned, with rules about not selling it to people outside the clan, because rampant ultra-racism is the norm.

One odd feature of Somali customary law is that a wealthy man is required, with detailed legal rules, to share his wealth with neighbors and relatives.

That doesn’t sound too odd. There are probably good reasons for the rule, like the lack of refrigerators for storing large amounts of meat obtained by butchering and a limit to the available grazing land before one flock just eats all of the food and leaves nothing for the others.

I thought the case of dealing with the state of Ethiopia as a clan was interesting, though it’s a bit long to quote. Basically, some Ethiopian soldiers (I think) killed a Somali merchant. An hour later, the victims family killed two random soldiers in retaliation. The military decided that the retaliatory killing was just and did not retaliate by wiping out the village.

Anyway, that’s the end of the chapter. It’s an interesting chapter, but since Somalia is such a messed up country, it’s hard to take seriously without some evidence that the system is actually working for its people.

I do find it interesting, though, that even in a place as broken as Somalia, people still organize into groups, make contracts, take out insurance, etc. Organization of some sort seems to be a near-automatic, inherent feature of human groups. It’s also interesting that a system can survive without lawmakers (or any kind of organized executive) and just rely instead on common understandings of what the group does and does not allow, but not without judges.

(This of course reminds me of the progression in the Old Testament, from wandering pastoral nomads in Exodus, following the “oral law,” to the rule of judges in Judges and finally kings in Kings, but only after the people asked for one: 1 Samuel 8:

When Samuel grew old, he appointed his sons as Israel’s leaders.[a] 2 …But his sons did not follow his ways. They turned aside after dishonest gain and accepted bribes and perverted justice.

So all the elders of Israel gathered together and came to Samuel at Ramah. They said to him, “You are old, and your sons do not follow your ways; now appoint a king to lead[b] us, such as all the other nations have.”

But when they said, “Give us a king to lead us,” this displeased Samuel; so he prayed to the Lord. And the Lord told him: “Listen to all that the people are saying to you; it is not you they have rejected, but they have rejected me as their king. As they have done from the day I brought them up out of Egypt until this day, forsaking me and serving other gods, so they are doing to you. Now listen to them; but warn them solemnly and let them know what the king who will reign over them will claim as his rights.”

Samuel told all the words of the Lord to the people who were asking him for a king. 11 He said, “This is what the king who will reign over you will claim as his rights: He will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots. 12 Some he will assign to be commanders of thousands and commanders of fifties, and others to plow his ground and reap his harvest, and still others to make weapons of war and equipment for his chariots. 13 He will take your daughters to be perfumers and cooks and bakers. 14 He will take the best of your fields and vineyards and olive groves and give them to his attendants. 15 He will take a tenth of your grain and of your vintage and give it to his officials and attendants. 16 Your male and female servants and the best of your cattle[c] and donkeys he will take for his own use. 17 He will take a tenth of your flocks, and you yourselves will become his slaves. 18 When that day comes, you will cry out for relief from the king you have chosen, but the Lord will not answer you in that day.” As they have done from the day I brought them up out of Egypt until this day, forsaking me and serving other gods, so they are doing to you. Now listen to them; but warn them solemnly and let them know what the king who will reign over them will claim as his rights.”

19 But the people refused to listen to Samuel. “No!” they said. “We want a king over us. 20 Then we will be like all the other nations, with a king to lead us and to go out before us and fight our battles.”

21 When Samuel heard all that the people said, he repeated it before the Lord. 22 The Lord answered, “Listen to them and give them a king.”

Have a good day; we’ll be looking the supposedly similar Irish feud law next Monday.

Icelandic Law

 

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Icelandball

Today we’re discussing the legal system of saga-period Iceland in Legal Systems Very Different from Ours.

First, a little background:

Iceland … is a Nordic island country in the North Atlantic, with a population of 360,390[4] and an area of 103,000 km2 (40,000 sq mi), making it the most sparsely populated country in Europe.[b][8]  …Iceland is volcanically and geologically active. The interior consists of a plateau characterised by sand and lava fieldsmountains, and glaciers, and many glacial rivers flow to the sea through the lowlands. … Its high latitude and marine influence keep summers chilly, with most of the archipelago having a tundra climate.

According to the ancient manuscript Landnámabók, the settlement of Iceland began in 874 AD when the Norwegian chieftain Ingólfr Arnarson became the first permanent settler on the island.[9] In the following centuries, Norwegians, and to a lesser extent other Scandinavians, emigrated to Iceland, bringing with them thralls (i.e., slaves or serfs) of Gaelic origin.

The island was governed as an independent commonwealth under the Althing, one of the world’s oldest functioning legislative assemblies. Following a period of civil strife, Iceland acceded to Norwegian rule in the 13th century.

Iceland today is a small country; Iceland in the saga era was even smaller. Official records weren’t kept until the 1700s, but at that time, the population was a bit under 50,000 and stayed there for over a hundred years, so I think it’s safe to put 50,000 as our max population for the saga period.

Ethnically, the male population was about 66% Viking and 34% Scottish/Irish slaves; the female population was about 60% Scottish/Irish slaves and 40% Viking.

Note that Iceland’s population went from about 50,000 to 350,000 in two hundred years–seven times bigger–yet Wikipedia claims, “Due to a shortage of labor,[21] immigration to Iceland will most likely increase in the future.[22]” How the fuck do you septuple your population and still have a “shortage of labor”?

Utter nonsense.

Anyway, back to the Viking age, when people solved their problems by stabbing each other, setting their houses on fire, and kidnapping the women:

In saga-period Iceland a thousand years ago, if you killed someone his relatives sued you.

Despite being a bunch of Vikings and their slaves, Icelanders still set up a legal system that was sufficiently complex that modern scholars aren’t sure exactly how it worked. (I’m sure if some future legal scholars tried to piece together the American legal system from old episodes of Perry Mason plus some law review articles, they’d also be confused.) Our understanding of the Icelandic system similarly comes from a combination of entertaining stories (sagas) and a collection of legal texts written down later, the Gragas. It’s tempting to claim that Gragas must be correct, since it is actually a collection of legal texts, but I challenge you to read a bunch of US case law and use it to piece together how US law actually works in practice. (You won’t.)

As for what we know:

The political system they developed [in Iceland] was based on Norwegian traditions with one important innovation–there was no king.

At the base of the system stood the godi [note: the d should be crossed]… The original godar seem to have been local leaders who built pagan temples and served as their priests. A godi received temple dues and provided in exchange both religious and political services. The godord was his congregation. The relationship between the godi and his thingmen was contractual not territorial. The godi had no claim to the thingman’s land and the thingman was free to transfer his allegiance.

It’s hard to have a king or exert much power over people when population density is low and they can just move on if you annoy them too much. I don’t think this is really a political innovation so much as a reality of low-density frontiers-like areas.

Personally, I don’t like using non-English terms when perfectly good translations exist. the godi (plural, godar) is a priest. The godord is his congregation.

Under the system of laws established in AD 930, these local leaders were combined into a national system. In 960, Iceland was divided into four quarters, each containing nine godord clustered in groups of three called things. …

The one permanent official of this system was the … lawspeaker; he was elected… His job was to memorize the laws, recite them once during his term in office, provide advice on difficult legal points and preside over the … legislature.

I once tried to figure out how many laws the US has and came up with an official answer of “no one knows, not event he government.” It’s not exactly clear what is and isn’t a law–for example, if the state mandates that parents whose kids have more than 10 unexcused absences from school in a year be charged with truancy, then does the schools’ procedure for reporting medical absences count as a law? Our system is complicated, and no mortal could ever memorize it, much less recite it all in a timely manner.

The existence of the lawspeaker was probably just necessity in a system where not everyone was literate, but it also provides a check on the number of laws (and thus the structure that the law takes,) since it must be humanly possible for someone to memorize them all.

The godord [congregation] itself was two different things. It was … the particular men who had agreed to follow that godi [priest], to be members of that [congregation]. … The godord was also a bundle of rights, including the right to sit in the [lawcourt] and appoint judges for certain courts. … it was the right to be the person through whom ordinary farmers plugged into the legal system.

So everyone has to be associated with some congregation of other, but you get to chose the one you want to be part of. Once you’re part of a congregation, you have to pay your priest an annual tax, which pays for the expenses of the men who attend the annual lawcourt and decide cases. Membership in the congregation and thus the right to sit in the legal assembly and hear court cases could be bought, sold, given away, inherited, etc.

For serious offenses, conviction meant full outlawry. … It was legal to kill an outlaw, illegal to feed him, shelter him, or help him to leave Iceland. … A lesser outlaw had the right to leave Iceland and could return in three years.

If you’re declared an outlaw, then the court takes your stuff and gives it to the victims or their surviving relatives (saving some for any of your innocent children).

Prosecution was up to the victim or his kin… Most cases in the sagas were settled out of court, usually for money damages. … Many were settled by arbitration. .. Calculations by two different scholars suggest tat only about a tenth of cases went to a final judgment by the court.

Lest you think this is a lot, 97% of criminal cases in the US end with plea bargains rather than actual court trials.

Icelandic law distinguished between killing and murder–secret killing. After killing a man, one was obliged to announce the fact immediately. … Murder cost the killer the ability to raise legal defenses, such as the fact that his victim was an outlaw or had forfeited his immunity by attacking [first, I presume.]

Since this is a system of privately enforced law in which people essentially join a legal society and then pay taxes to it, there’s always the possibility that the poor will be too poor to afford justice, or the rich so rich they can buy their way out.

The former was not a problem, the authors argue, because the money for a successful conviction was always potentially available, so even people too poor to prosecute a case could sell their case to someone else who would be happy to pursue it for profit.

The latter case, the rich buying their way out of trouble, became a problem as the poor peasants (and slaves) who made up Iceland’s initial population gradually built up their estates and some families became significantly more wealthy than others:

By the Sturlung period there were many areas where all or most of the godord were held by one family, reducing or eliminating the ability of the individual thingman to choose his godi and creating a de facto, if imperfect, form of territorial sovereignty…

Another possible source of concentration of wealth and power was the introduction of Christianity…

A second and related cause of the breakdown was the introduction into Iceland of a foreign ideology–monarchy. … Several of the leading figures, when out of Iceland, usually as a result of a settlement that included temporary outlawry, became retainers of the king…

Population growth=all of the good land gets snatched up. Over time, some families get richer and accumulate more power. Eventually, they use that power to get more power, setting themselves up as local lords; with all of the good land taken, people have nowhere else to go if they get fed up.

Exit provides a workable system if there are other places to go; not if everything is closed off already. Eventually, bigger societies become more hierarchical, except in Iceland’s case, this led to a total breakdown of the system.

Of course, even during the breakdown, Iceland was still safer than the US at the peak of the crime wave:

According to a calculation by a scholar who went through the Sturlung sagas counting bodies, during more than fifty years of the violent breakdown of the traditional system the number of people killed or executed each year, on a per capita basis, was roughly equal to the rate of murder and non-negligent manslaughter in the United States in 1975.

600px-Homicide_rates1900-2001

Today, of course, Iceland is one of the world’s safest countries:

863px-Map_of_world_by_intentional_homicide_rate.svg
Murder rate per 100k people in 2012: light blue = 0-1; darkest blue > 20

That’s all for today; next week we’ll look at Somali law. Should be fun. Take care.

Prison Law

51ta-us7crlKey tenants of the Prisoners’ Code:

  • Never rat on another convict
  • Don’t be nosy
  • Don’t gossip
  • Don’t lie
  • Don’t steal
  • Pay your debts
  • Don’t be weak
  • Don’t whine

Welcome back to our discussion of Legal Systems Very Different from Ours, by Friedman, Leeson, and Skarbek. Today we are discussing chapter 8: Prisoners’ Law–a subject of continuing interest to me, as you know.

While I have questioned why people would bother having multiple legal systems–why have parallel or multiple systems, instead of just one–what if we begin from the opposite assumption: why not have multiple legal systems? After all, modern societies are vast, with many different interest groups. There is the state, which wants mostly to promote trade, economic activities, and tax revenues–and will attempt to cut down on violent, predatory human (and animal) behavior to the extent that it interferes with the former. Then there are individuals, whose interests–like avoiding taxation and making sure their kids marry good spouses–are very different from the state’s.

If you have a state that is really trustworthy and definitely wouldn’t use knowledge of your assets gained during a divorce dispute to increase your taxes, then you might be happy to run your interests through the state-run legal system, but if you have any doubts about the state’s potential trustworthiness, you might want a different system to handle your more intimate problems.

Prisoners, of course, don’t have much hope of the state caring terribly much about resolving their disputes. I can’t imagine that prison guards really care that much if Prisoner A cheats Prisoner B out of cigarettes, so long as A and B both keep quiet and don’t make trouble. Even the murder of Prisoner A by Prisoner B may not trouble the guards, especially if it relieves them of some of their duties.

So prisoners–despite generally being lawbreakers themselves–have a strong incentive to create their own legal systems, and they do:

Nevertheless, across every period of prison life that we know about, we consistently find that officials provide only some… of the safety that prisoners crave. In fact, prisoners have developed a legal system of their own to order the society of captives.

… the nature of California prisons is that there are many resources that are held in common. The pull-up bars, tables and benches, handball courts, and basketball courts are freely open to all prisoners, at least officially. In reality, however, there is far more demand to use these resources than there is available supply.

The guards simply do not care enough to ration access to the facilities; prisoners work that out among themselves:

One prisoner associated with a Northern Hispanic gang explains, “If a new yard opens up, you’re going to fight for that handball court, you’re going to fight for some tables… If you ain’t a Northerner and you come into that areas, you’re going to get stabbed.”

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Not getting harassed by antifa.

Gangs, like pirates and yellowjackets, wear their affiliations openly so you know not to mess with them. This, in turn, greatly reduces the chances of you getting stabbed.

Prisoners also have to set up their own systems of rules and enforcement because prisoners have a habit of doing illegal things, like selling drugs, and the government tends to look down on such activities and attempt to stop them (or at least take a cut of the profits). Prisoners can’t depend on prison guards to make sure they get paid for illegal drug deals, smuggled cigarettes, or hired violence.

For all these three reasons, in nearly any prison that scholars have studied, we find that prisoners create parallel, informal legal institutions.

The Prisoners’ Code–quoted at the beginning of the post–served California prisons prior to the 1960s. Adherence to the code meant that one was a “convict” in good standing with his fellows; those who violated the code were mere “inmates” in bad standing with their neighbors. Nobody likes a rat, and “inmates”, since they were regarded as having already violated the general trust, were fair game for victimization. Convicts, by contrast, had the general support of their fellows and so were protected.

The Code was fairly informal–not a written document, not formally agreed upon, not enforced by any particular body. It was just what everyone knew and agreed to, and who was and wasn’t a convict in good standing was just common knowledge.

Interesting, during this period, prisoners did not strictly segregate themselves by race and ethnicity. …

Edward Bunker, who served time in San Quentin prison in the 1950s and later, explained that, “although each race tended to congregate with their own, there was little overt racial tension or hostility. That would change in the decade ahead. what I did for a black friend in the mid-fifties is something I would never have even considered a decade later.”

Well damn. That sounds shitty.

1024px-PLISign
Point Lookout Cemetery, Angola Prison–final resting place of those who will never leave.

The Code broke down because the prison population exploded and became much more ethnically diverse during the great crime wave of the late 20th century. California prisons went from housing about 5,000 people total around 1950 to over 170,000 people in the 2000s. A system based on simply knowing whether or not the guy you were talking to was generally regarded as a convict in good standing breaks down when the system has 170,000 people in it.

This was compounded by the fact that the prison population was becoming much more ethically and racially diverse. Whereas in 1951 there used to be two white prisoners for every one black or Hispanic prisoner, that ratio had reversed by 1980. Heterogeneity undermines decentralized legal systems because it confounds consensus.

Or in other words, diversity leads to centralized authoritarianism.

Here’s a graph, for the visually inclined:

Inprisonment_Rates

Coinciding with these changes, there was a significant increase in prisoner on prisoner violence. … In response to this increasingly chaotic environment, prisoners turned to groups that today we often assume are the sources of disorder–prison gangs.

This makes sense–with too many inmates from too many backgrounds to enforce common norms via common knowledge, a new layer of organization–gangs–formed to fill the gap.

A formalist would say that we should make gangs official.

Gangs operate in a community responsibility system. Each prisoner must have an affiliation with a group, and each group is responsible for each members’ actions.

Sounds like Chinese law.

Of course, not everyone is a full member of a prison gang, just like not everyone is a paid member of the US government. Most prisoners, though, are affiliated to some group to some extent, following the rules set by their group.

Prison gangs often have written constitutions to order their internal workings. … There are clearly established leadership structures, and some of these positions are filled through democratic elections by a gangs’s members.

Sounds like pirates.

Prison gangs work to prevent conflicts between their members and resolve conflicts between their members and outsiders.

For example, if a member of one gang is delinquent in a drug debt to another group, that prisoner’s entire gang is responsible for it. He ma be forced to contact family on the outside to pay it off. The gang may pool their resources to pay it off. the gang may force the prisoner to work the debt off for the other gang… the gang itself might assault their own member to the extent that it satisfies the shot caller of the other group…

Gang-based governance outperforms the Prisoner Code because it requires less information about other people’s reputations. It is easier to know the reputation of a group than to know the reputation of every member of that group.

Seems like a lot of information processing works this way; I care less about the particular details of a random tree than “this is a tree.”

The authors argue that, even though gangs are usually blamed for crime, at least in the case of prisons, the rise of gangs coincided with a drop in crime:

… there was a nearly 90% decline in prisoner homicides from 1973 to 2012 (no data available from 1974-1979). During much of the 2000s, the homicide rate in prison was actually lower than outside of prisons. [!!!]

The homicide rate per hundred thousand prisoners was just over 60 (looks like 63 on the graph) in 1973, and bottomed out around 3 or 4 in 2001. There has been a slight increase in the most recent data, with about 8 murders per 100k in 2012.

Of course, prisons have probably taken measures to prevent inmates from killing each other, but I suspect that is difficult to convince people who are already in prison to be afraid of more prison, but it is easy to make them afraid of getting beaten.

But there are some ironies:

… despite a dramatic decline in the free world in racial prejudice since the 1940s, prison life is actually significantly more segregated today. Showers, telephones, handball courts, and even areas in the yard to sit are claimed by different racial groups and other races are not allowed to use them. Members of different races are not allowed to share cigarettes or meals together, or even live in the same prison cell.

Do the gangs prevent murder (if they do at all) by effectively threatening to make punishment painful for any would-be murderers, or by forcing people to segregate?

The authors note that organizing along racial lines solve information problems quickly–you can tell at a glance which group someone belongs to. But gangs have a variety of drawbacks as government systems–they tend to increase recidivism among their members, for example, and predatory behavior by senior gang members against lower-ranking members often goes unchecked because, being prisoners, they have nowhere else to go.

It is interesting that prison gangs are allowed to operate. Their primary purpose isn’t keeping peace and preventing murder (or so they claim), but doing business–selling drugs and the like. Peace is good for business; murder is bad for business because it gets the guards involved. One might think that prison guards would be uncomfortable with prisons being run by racial gangs that were formed to do illegal things, but either the guards don’t really care, it’s too hard to eliminate the gangs without a great deal more money and effort, or they’ve decided that life is just better with the gangs running things.

511Z26YT83L._SX322_BO1,204,203,200_That’s all for today, but please see some of my previous posts related to prisons: God of the Rodeo, about Angola Prison, Louisiana; and my review of Oriental Prisons: pt 1: Thugee; pt 2: Andaman Islands pt 3: Burma, China, and Japan; and pt 4: Egypt.

Next week, we’ll take a look at Saga-Era Iceland.

Legally Pirate: Systems Very Different from Ours

Welcome back to our discussion of Legal Systems Very Different from Ours. Today we’re discussing chapter 7, Pirate Law.

Buccaneer of the Caribbean, from Howard Pyle’s Book of Pirates

We’ve already discussed Pirate Law a couple of times, based on articles by the same author, from the same source material, so some of this chapter is redundant if you’ve been reading this blog for a while, but it’s interesting enough to be worth a review.

The authors begin with an amusing comment on pirates’ odd popularity:

Only the Mafia approaches Caribbean pirates’ criminal celebrity, but large numbers of children do not dress up as mobsters to collect candy on Halloween.

On to business:

Successful piracy required the cooperation of a sizeable pirate crew. The average Caribbean pirate ship was crewed by 80 men, and the largest crews consisted of several hundred. This raises the question of how pirates, who, as criminals, could not rely on government to provide their crews law and order and had no compunction about murdering and stealing for private gain, manged to cooperate with one another to engage in piracy.

The fact that “even criminals” develop legal systems of some sort to regulate their relations with each other is one of the things I find fascinating about humans. Social organization springs up even in the most unlikely-seeming places, like prisons and criminal gangs, suggesting that order is a spontaneous and natural fact of human life (though the form that order takes varies).

Whatever order criminals form among themselves is also interesting because it is, by necessity, separate from the dominant legal systems; most criminals do not have the option of turning to the police should a fellow criminal stiff them on their share of the booty. (I suppose this has some parallels with the Chinese case, as the authors described it.)

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Ships through the ages: Pirate dhow; Spanish or Venetian galley; Spanish galleon The Dhow is a typical 16th century dhow, a grab-built, lateen-rigged vessel of Arabia, the Mediterranean, and the Indian Ocean. It has the usual long overhang forward, high poop deck and open waist. The dhow was notorious in the slave trade on the east coast of Africa, and even after a thousand years is still one of the swiftest of sailing crafts.

Pirates dealt with their problems by devising what is known as the “Pirate Code,” a set of laws that provided for the basically democratic conduct of the ship and division of the booty, with the captain in charge during battle. Since we already discussed these in previous posts, I will skip over the details, but you can read the book (or my previous posts on the subject), but suffice to say that pirates developed constitutions with voting, checks and balances, etc, that parallel democracy as developed in places like the US:

The institutional features of pirate law should sound familiar. They are more-or-less those of the American system of government: constitutional democracy, separated powers, and checks and balances. …

The most notable difference between pirate law and the American system of government is not their substance but when they were created and by whom. Pirate law was created by mostly illiterate, violent criminals in the early eighteenth century. The American system of government was created by the most educated and respected Europeans of their era more than half a century later.

The authors argue that pirate law must have been successful since piracy not only existed, but flourished, despite quite a bit of forceful opposition from European governments.

On pirate flags:

Most bandits do not announce their presence to their victims and potentially the authorities by publicly displaying a distinctive bandit logo

Proper placement of 1% motorcycle patch.

You sure about that, bud? Most criminal gangs I am familiar with, from the Mafia to street gangs to outlaw motorcycle clubs, advertise their status as criminals in rather obvious ways, like clothing patches, facial tattoos, or dapper Italian suits.

And it’s not just humans: wasps and bees, coral snakes and rattlesnakes, poison dart frogs and monarch butterflies, amanita muscaria and blue ringed octopuses  all signal “Stay away! I’m trouble!”

The natural principle is called “aposemetism,” which:

 refers to the appearance of an animal that warns predators it is toxic, distasteful, or dangerous. This warning signal is associated with the unprofitability of a prey item to potential predators. The unprofitability may consist of any defences which make the prey difficult to eat, such as toxicity, foul taste or smell, sharp spines, or aggressive nature. Aposematism always involves an advertising signal which may take the form of conspicuous animal colorationsoundsodours[2] or other perceivable characteristics. Aposematic signals are beneficial for both the predator and prey, since both avoid potential harm.

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Are bulborbs poisonous? Or do you just hallucinate if you eat one?

Of course, Pirates fly the Jolly Roger for the same reason: 

Pirates had a well-deserved reputation for mercilessness toward attackers [sic], which they earned by adhering t a simple policy: surrender or die. Pirates adopted this policy to minimize the cost of taking prizes. Violent confrontations with prey were expensive. … More peaceful piracy was therefore more profitable piracy secured, ironically enough, by pirates’ promise to slaughter resistors. …

To profit from this fact, pirates needed to ensure that their victims knew when they were being accosted by pirates… With few exceptions, only pirates flew the Jolly Roger, which is precisely why they did so.

And non-pirates who might like to dabble in the occasional ship-theft are unlikely to dilute the power of the Jolly Roger via mimicry due to the governments’ promise to execute anyone flying the Jolly Roger. This is kind of like if humans couldn’t tell the difference between coral and milk snakes, and so killed all of the milk snakes they could get their hands on: there would soon be pressure for milk snakes to not be orange.

Human criminal gangs make efforts to protect their symbols, to prevent dilution and ensure clear signalling power. The Hells Angels, for example have trademarked/copyrighted their symbols:

In March 2007 the Hells Angels filed suit against the Walt Disney Motion Pictures Group alleging that the film entitled Wild Hogs used both the name and distinctive logo of the Hells Angels Motorcycle Corporation without permission.[39] The suit was eventually voluntarily dismissed,[40] after the Angels received assurances from Disney that the references would not appear in the film.[41] …

In October 2010 the Hells Angels filed a lawsuit against Alexander McQueen for “misusing its trademark winged death heads symbol”[44] in several items from its Autumn/Winter 2010 collection. The lawsuit is also aimed at Saks Fifth Avenue and Zappos.com, which stock the jacquard box dress and knuckle duster ring that bear the symbol, which has been used since at least 1948 and is protected by the U.S. Patent and Trademark Office. A handbag and scarf was also named in lawsuit.[45] The lawyer representing Hells Angels claimed: “This isn’t just about money, it’s about membership. If you’ve got one of these rings on, a member might get really upset that you’re an impostor.”[46] … The company settled the case with the Hells Angels after agreeing to remove all of the merchandise featuring the logo from sale on their website, stores and concessions and recalling any of the goods that have already been sold and destroying them.[48][49][50]   

In fall 2012 in the United States District Court for the Eastern District of California, Hells Angels sued Toys “R” Us for trademark infringementunfair competition, and dilution in relation to the sale of yo-yos manufactured by Yomega Corporation, a co-defendant, which allegedly bear the “Death Head” logo.

Clear signals work better than unclear signals, example # 6,700,789.

That’s all for now; see you next week.

 

Islamic Law

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Photo of the lovely Samarkand Ulugbek Madrassa by Arian Zwegers

Welcome back to Legal Systems Very Different from Ours. Today we’ll be discussing Islamic law; with any luck, someone who actually knows something on the subject will drop by and weigh in.

Strictly speaking, what traditional Islamic courts enforced was not Shari’a, God’s Law, but fiqh, jurisprudence, the imperfect human attempt to deduce from religious sources what human law ought to be. That fact helps explain how Sunni Islam was able to maintain four different but mutually orthodox schools of law. There could be only one correct answer to what God wanted humans to do but there could be more than one reasonable guess.

This sounds like a bit of technicality that I am skeptical of people observing in practice, so I went over to Pew.

The World’s Muslims: Beliefs about Sharia: 

gsi2-chp1-2

According to the survey findings, most Muslims believe sharia is the revealed word of God rather than a body of law developed by men based on the word of God. Muslims also tend to believe sharia has only one, true understanding, but this opinion is far from universal; in some countries, substantial minorities of Muslims believe sharia should be open to multiple interpretations. …

Although many Muslims around the world say sharia should be the law of the land in their country, the survey reveals divergent opinions about the precise application of Islamic law.

Pew doesn’t distinguish between “sharia” and “fiqh”

In 17 of the 23 countries where the question was asked, at least half of Muslims say sharia is the revealed word of God. (For more information on sharia see text box.) In no country are Muslims significantly more likely to say sharia was developed by men than to say it is the revealed word of God. …

gsi2-chp1-3In 17 out of 21 countries, “there is only one interpretation of sharia” beat “there are multiple interpretations.”

Support for making sharia the official law of the land varies significantly across the six major regions included in the study. In countries across South Asia, Southeast Asia, sub-Saharan Africa and the Middle East-North Africa region most favor making sharia their country’s official legal code. By contrast, only a minority of Muslims across Central Asia as well as Southern and Eastern Europe want sharia to be the official law of the land.

In South Asia, high percentages in all the countries surveyed support making sharia the official law, including nearly universal support among Muslims in Afghanistan (99%). More than eight-in-ten Muslims in Pakistan (84%) and Bangladesh (82%) also hold this view. The percentage of Muslims who say they favor making Islamic law the official law in their country is nearly as high across the Southeast Asian countries surveyed (86% in Malaysia, 77% in Thailand and 72% in Indonesia).

In sub-Saharan Africa, at least half of Muslims in most countries surveyed say they favor making sharia the official law of the land, including more than seven-in-ten in Niger (86%), Djibouti (82%), the Democratic Republic of the Congo (74%) and Nigeria (71%).

Support for sharia as the official law of the land also is widespread among Muslims in the Middle East-North Africa region – especially in Iraq (91%) and the Palestinian territories (89%). Only in Lebanon does opinion lean in the opposite direction: 29% of Lebanese Muslims favor making sharia the law of the land, while 66% oppose it.

So I have a little skepticism of the authors’ claim that Muslims normally distinguish between Sharia and Fiqh and that they’re totally okay with multiple, co-existing interpretations of the law.

More likely, the average Muslim believes multiple, vaguely contradictory things about Sharia that are basically piety signals, because most Muslims are just trying to live their lives and feed their families, not legal scholars.

“Should we run the country according to God’s laws?” the pollster asks, and the faithful reasonably respond that “Yes, of course we should run things according to God’s laws.”

“Does God’s law come from God or from man?” the pollster asks, and the faithful responds, “From God, obviously. It’s in the name.”

With those caveats, let’s get back to Legal Systems Very Different from Ours. The authors then explain the five-fold division of acts in Islamic law, which I have converted to a rough table:

Obligatory act:         God rewards for performing,      Punishes for not performing
Recommended act: God rewards for performing,      No punishment for not performing
Permissible act:       No reward for performing,          No punishment for not performing
Offensive act:          No punishment for performing,   Reward for abstaining
Unlawful act:           Punishment for performing,         Reward for avoiding

… Islamic law is more nearly a system of morality than a system of law, since its rules primarily describe how one ought to act, only secondarily the legal consequences of action. …

How was fiqh deduced and applied? The scholar started with the sources of revealed knowledge–the Koran itself and the words and acts of Mohammad and his companions as reported in hadith, traditions. From that information a sufficiently learned religious scholar, a mujtahid, deduced legal rules. Over time, the scholars separated into four schools… The schools were generally similar but differed in the details of their approaches to interpretation and the rules they deduced; each regarded the others as orthodox.

Any Muslim readers want to weigh in on how accurate this is?

Anyway, Islamic law then developed over the years the same problems of any legal system: bloat, excessive writing, technological and cultural change, and multiple conflicting interpretations, all of which could make it difficult to determine what the “original” idea of the law had been.

It was necessary to decide for each hadith how certain one could be that it was neither invented by someone at some point down the purported chain [of legal descent] nor inaccurate due to an error in transmission.

The basic rule accepted by all schools was that if there were a sufficient number of independent chains supporting the same hadith, it could be accepted as genuine with certainty.

Muslims inventing the blockchain.

It followed that if at any one time all of the scholars were agreed upon a question, that question was permanently settled.

Law and the State:

After first few centuries and until the rise of the Ottomans, political authority in the Islamic world was fragmented. The local rulers were frequently foreigners to the populations they ruled… What they wanted from the legal scholars was support for their legitimacy. … they were willing for the most part to leave the legal system in the hands of the scholars. … Think of the resulting system as what Anglo-American common law would be if law professors ran the world, law defined not by the precedents set by judges but by the medieval equivalent of law review articles.

So… does it work? How well does it work? In the chapter on Icelandic law, the authors are willing to actually interrogate why Icelandic law broke down (in the Middle Ages) and what made it initially effective and then ineffective. There’s a little discussion in the chapter on Chinese law on how people managed to conduct business effectively despite (or because) of the lack of relevant formal legal rules. But in general the authors shy away from asking how effective the legal systems actually are, which seems like a critical piece of information. If a system works well and the people in it are pleased with the results, then it seems reasonable to see if it is a system with parts that can be felicitously copied, borrowed, or implemented; if a system works badly, (as many do) then it is wise to examine what makes it dysfunctional and try to avoid those components in our own system.

Of course, the functioning of many legal systems probably does come down, as Confucian scholars might say, to the ethics/wisdom inherent in the people in them.

But anyway:

From the perspective of modern American law, the final two stages of the process look like our system turned upside down. In ours,t he court of first impression applies the law to the facts and produces a verdict. If the case is appealed, the appeals court takes the facts as already decided and gives a second and authoritative opinion on the law In their system, the opinion on the law came first, provided by the mufti, followed by the qadi’s application of the law to the facts as he saw them. Under most circumstances there was no way to appeal the qadi’s verdict.

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Prominent schools of Islamic law (aka madhhab) by region

The authors note that they have described the “traditional account” of how Islamic law developed; some modern scholars claim this is all kind of retconned from existing Arabic law and modified over time as new provinces were conquered. I’m sure this is also to some extent true, as whatever laws people were already using on matters like marriage and murder probably persisted post-conversion.

Anyway, so there are multiple “schools” of Islamic legal thought:

While the schools differed in detail they regarded each other as mutually orthodox. In this respect as in others, the history of Islamic law both resembles and differs from that of Jewish Law. The schools of Hillel and Shammai tolerated each other for several generations, but eventually the majority school suppressed the minority. In the parallel Islamic case, the four schools of Sunni law have continued their mutual toleration up to the present day. …

The four schools of law are all Sunni; the Shia have their own schools and legal rules… While different schools were dominant in different areas, a medieval Muslim city could have had separate courts for the four Sunni schols, the Shia, and the other tolerated religions. It was a polylegal system; disputes within each community would go to that community’s courts. Non-Muslims had to use Muslim courts for criminal cases but had choice of law for civil matters. … What happened in a dispute between parties adhering to different legal systems is not entirely clear…

I wonder how this worked in practice.

While law was in theory independent of the of the state, in practice, in most historical Islamic societies, state-created rules played a significant role. … One reason for the development of parallel state curts may have been the desire of the ruler to maintain control A second was that fiqh had serious limits as a legal system. …

The authors then look at the “breakdown” of the Islamic legal system.

The breakdown of the traditional legal system may, as Hallaq argues, be due to the rise of the nation state, but the connection between that and western imperialism is accident not essence. The causes that led to the rise of the nation state in the west, the replacement of feudalism by absolute monarchy, operated in the Islamic world as well… The annexation of the waqfs by the Ottoman authorities parallels the earlier confiscation of the lands of the monasteries by Henry VIII. The result in both cases was to eliminate institutions that competed with the sate for power and resources. 

This is the kind of theory I like.

Then there is a section with more details on the actual content of the legal code, eg:

The part of fiqh that applies to homicide or bodily injury is called jinyat and appears to be based on the pre-Islamic rules of Arab blood feud.

Blood feuds are interesting and I think there is a chapter later on that looks at feud systems in more detail. But I wonder how these systems translate over geography–that is, across the Islamic world, from Morocco to Indonesia. Did the spread of Islam result in these areas adopting laws that were originally Arabian, or did each region effectively retain its own existing legal system? And how is it all working out today?

Wikipedia has an interesting bit: 

The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system.[65] Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system.[65] State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question).[65] Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws.[65] Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence.[65] The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements.[65]Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.[65]

More Laws, Please: Jewish Law is Different from Ours

51ta-us7crlWelcome back to our discussion of Friedman, Leeson, and Skarbek’s Legal Systems Very Different from Ours. Today we’ll be discussing Jewish law.

Jewish law may be the best-recorded legal system in the history of the world; there are hundreds of thousands, perhaps millions, of pages of surviving primary sources covering about twenty-five hundred years.

I think I’ve mentioned before that I had this idea once back in college to do a project on parallel legal systems like Gypsy law, and thankfully someone talked me into switching to Jewish law, mostly out of concern for my physical safety.

But Jewish law is also massively better documented.

One thing I find amusing about Jewish law is that Jews seem to actually like the subject. I can’t tell if that’s something people feel like they’re supposed to say in the same way that people feel like they should claim to like school even if they actually hated it, but they certainly give the impression of being rather enthusiastic on the subject. Where the traditional practice of Chinese law can be summarized as “Please go away and leave us alone,” or “good people don’t need law,” the Jewish approach seems like “More laws, please.”

Problems of Divine Law

Jewish law was, in theory, based on a single unchangeable source–the Torah [first five books of the Bible.]… Basing the law in this way rather than on custom, precedent or legislation raised two problems shared with other legal systems similarly based, including Fiqh (Islamic Jurisprudence) and American Constitutional Law.

Note: I wrote a post about this: The Talmud and the Constitution. The trouble comes in when two scholars/judges/etc disagree about what exactly the law should be:

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.

Obviously you need some way to resolve disputes about what exactly the laws should be; you also need some way to change laws should new circumstances arise that necessitate doing so.

The initial solution to the problem of legal uniformity was a simple one. Truth is not determined by majority vote but law can be. … the legal scholars took the position that the interpretation to be followed by judges was determined by the views of the majority of legal scholars.

There follows an amusing story about some rabbis who were arguing about whether an oven could be cleaned. The majority of rabbis held one opinion; the dissenting rabbi’s opinion was closer to the original religious text. God steps in on the dissenting rabbi’s side, at which point the other rabbis basically tell Him to back off, this is a rabbi matter.

His position was summed up by another Rabbi as “The Torah has already been given at Mount Sinai. We pay not attention to a heavenly voice because You have already written in the Torah at Mount Sinai, ‘Follow the Majority.'”

According to the story, God smiled and said to himself, “My children have bested me.”

Most people I have discussed this story with object to it. They just can’t fathom the idea of telling God to buzz off and let the humans interpret divine law. Yet, as a parent, there have certainly been times when my children, as God put it, bested me. And in those moments I didn’t feel irritated or angry, but proud of them for their growth and maturity.

Anyway, as for the Jews, the authors make a good point that you’re much more likely in normal life to encounter cranks and grifters claiming divine revelations than you are to encounter actual divine revelations, so it’s a good idea to just reject divine revelations.

There is an interesting parallel between the conflict between the two schools of Jewish law, ending in the victory of one of them, and the development of Muslim law almost a thousand years later. In the early centuries of Islam, Sunni legal scholars divided themselves into four schools of law named after, and to some degree based on the teaching of, four of the early legal scholars. The schools differed in details of legal interpretation but regarded each other as mutually orthodox–and still do. …

One solution to the problem of [Jewish] legal diversity was the development of geographical schools Judges in France mostly went by the legal opinion of whoever was currently the most prominent legal scholar among French Jews…

This makes sense, given the difficulties of disseminating legal opinions to a diasporic population spread thinly across thousands of miles before the invention of cheap printing and fast transportation.

One of the other difficulties with Jewish law is that after 2,500 or so years, so much has been written that the whole mass has gotten terribly unwieldy:

Once the Talmud was complete, legal scholarship was built on top of three layers. The first was the Torah. That was followed by rabbinic legislation and commentary and interpretation based on the Torah, culminating in the Mishnah. That was followed by commentary on the Mishnah, culminating in the Talmud. Scholarship thereafter consisted largely of commentary on the Talmud, which had the previous two layers embedded in it, along with additional legislation. Further layers were added as one or another work based on those sources–the Mishneh Torah of Maimonides is one example–itself became the subject of further commentary.

This has generally been resolved via books summarizing previous decisions accompanied by more detailed legal books if one needs them, and the development of the previously mentioned local or communal law. Of course, sometimes this led to conflicts between different levels of interpretation or commentary.

There follows an interesting discussion of how marriage customs and especially the laws around marriage could have been modified to increase parental control over whom their children marry, but it is too long to quote here–you will have to read the chapter yourself.

A theory on kosher rules:

Careful observance of such rules is 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 believe sin the religion means that he will be reluctant to sear, falsely, for fear of supernatural punishment.

Well, maybe. It’d be nice to have some data on the matter.

Maimonides [a famous Jewish legal scholar] goes on to describe in some detail the rules associated with the avenger of blood,t he heir of a killer’s victim, and the cities of refuge–of which, like kings of Israel, there had been none for more than a thousand years. A killer was supposed to go to one of the cities of refuge, be brought from there to the court of the city where the killing occurred, tried and, if guilty of deliberate murder, put to death by the avenger of blood. If found guilty of unintentional killing he was to be sent back to the city of refuge to remain there until the high priest, also nonexistent in Maimonides’ day, died. En route to or from the city of refuge he could be killed by the avenger of blood without penalty.

That looks rather like the remnant of a pre-existing feud system, untidily integrated into its replacement.

It’s late and I’m pretty tired, so let’s wrap things up. I’m sorry I don’t have more to say, but I’ve already hit the point of exhaustion and I said a lot on the subject back in Why Does my Fridge Have a Sabbath Mode? and The Talmud and the Constitution.