Welcome 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:
- Discourages or prevents future misdeeds.
- 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. 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. …
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 and civilian prisoners. 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”.
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:
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.
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.