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.

Please go away and Leave us Alone: Legal Systems Very Different from Ours pt 1

51ta-us7crlI am about a third of the way through Friedman, Leeson, and Skarbek’s Legal Systems Very Different from Ours, so I thought it was about time I got this discussion rolling. If you haven’t started the book yet, don’t worry–you still have plenty of time to pick it up before next week.

How have you liked the book?

While we are at it, here is a similarly interesting piece: War Making and State Making as Organized Crime, by Charles Tilly:

What distinguished the violence produced by states from the violence delivered by anyone else? In the long; run, enough to make the division between “legitimate” and “illegitimate” force credible. Eventually, the personnel of states purveyed violence on a larger scale, more effectively, more efficiently, with wider assent from their subject populations, and with readier collaboration from neighboring authorities than did the personnel of other organizations. But it took a long time for that series of distinctions to become established. Early in the state-making process, many parties shared the right to use violence, the practice of using it routinely to accomplish their ends, or both at once. The continuum ran from bandits and pirates to kings via tax collectors, regional power holders, and professional soldiers.

The uncertain, elastic line between “legitimate” and “illegitimate” violence appeared in the upper reaches of power. Early in the state-making process, many parties shared the right to use violence, its actual employment, or both at once. The long love-hate affair between aspiring state makers and pirates or bandits illustrates the division. “Behind piracy or the seas acted cities and city-states,” writes Fernand Braudel of the sixteenth century. “Behind banditry, that terrestrial piracy, appeared the continual aid of lords.” In times of war, indeed, the managers of full-fledged states often commissioned privateers, hired sometime bandits to raid them enemies, and encouraged their regular troops to take booty. In royal service, soldiers and sailors were often expected to provide for themselves by preying on the civilian population: commandeering, raping, looting, taking prizes. When demobilized, they commonly continued the same practices, but without the same royal protection; demobilized ships became pirate vessels, demobilized troops bandits.

But back to Legal Systems Very Different from Ours.

This book takes a quick look at many different legal systems–13 or 14, depending on how we count the chapter on feuds. This makes for a lot of interesting material, but it means each system is treated very quickly. Some I have enough knowledge of to say a few things independently about them; others I must just trust the authors entirely. I would be interested in an expanded version of this book that goes into some of the legal systems in a big more depth.

The first chapter is on the Imperial Chinese legal system, which is a bit less useful than a chapter on the modern Chinese legal system, but I am sure there are many books out there on the modern system if I wish to learn about it.

My overall impression of the Imperial Chinese legal system is “Please go away and leave us alone.”

The logic appears to be that people who are good and virtuous have no need of a legal system, so the goal is to encourage people to be good and virtuous so they will not bring lawsuits. If that doesn’t work, using the legal system should be unpleasant enough to discourage people from using it. This probably cuts down on the number of frivolous suits, but has certain drawbacks.

In practice, the system tended to delegate authority for keeping people in line (not committing crime, not breaking contracts) to extra-legal authorities like family heads and merchant partnerships.

Here are some of the passages I highlighted:

The Chinese legal system originated over 2000 years ago in the conflict between two views of law, Legalist and Confucian. The Legalists, who believed in using the rational self-interest of those subject to law to make them behave in the way desired by those making the law, were accused by later writers of advocating harsh penalties to drive the crime rate to near zero. …

Confucianists argued for modifying behavior not by reward and punishment but by teaching virtue. They supported unequal treatment based both on the unequal status of those to whom the law applied and on their differing relationships.

China, being an ancient civilization, managed to keep much of its legal code across the centuries:

Laws originated as statues proclaimed by Emperors and passed down from dynasty to dynasty; one source estimates that forty percent of the Qing code came from the Tang code, created about a thousand years earlier.

I wonder if any of this is still around.

The legal code was not so much an account of what was forbidden as an attempt to specify, for every possible offense, the proper punishment. … Where the offense could not be fitted into any category in the code, the court could find the defendant guilty of doing what ought not to be done or of violating an Imperial decree–not an actual degree, but one that the Emperor would have made had the matter been brought to his attention.

I find this very amusing. It definitely has some potential drawbacks, but I can also understand the exasperation of an official going “Of course you shouldn’t have done that! Everyone knows you shouldn’t do that, you imbecile!”

On the difficulty of preventing local magistrates from acquiring too much power for themselves and threatening the chain of command, the authors note a parallel with the Ottoman situation:

The Ottoman Empire had a somewhat similar approach to the problem of maintaining central control. After conquering territory, the usual pattern was to appoint the surviving members of the defeated dynasty as local rulers in some distant part of the empire. The knowledge that defeat would not deprive the losers of life, wealth, or elites status reduced the incentive to resist conquest, and a governor with no local ties was dependent on the Sultan for his authority, hence likely to be loyal.

On to the famous Chinese Examination System:

Officials, including magistrates, were largely but not entirely selected from those who had successfully passed through a series of ferociously competitive exams.

Level one accords the rank of licentiate. Passing level two meant a good chance of official employment, and level three meant nearly guaranteed office.

Our system has all of the exams and none of the guarantees.

Competition was stiff:

In the early part of the final dynasty, there were about half a million licentiates out of a population of several hundred million, only about 18,000 people who had reached the next level. The provincial exam that separated the two groups had a pass rate of about one percent. … The [third level] exam produced 200 to 300 degrees from as many as 8000 candidates each time it was given.

People have speculated on the Chinese exam system/the official appointments made based on the system having a role in boosting the average Chinese IQ (which is quite high) by allowing the brightest Chinese more wealth and security for bringing more children into the world, but at such a small percent relative to the population as a whole, we’d need to do some real demographic number crunching before concluding that the system had any overall effect.

Curiously:

The exams did not test administrative ability, knowledge of the law, expertise in solving crimes or other skills with any obvious connection to the job of district magistrate or most of the other jobs for which the exams provided a qualification.

The authors quote:

The content of the provincial examination presented an exacting challenge, especially to the novitiate. Its syllabus called for compositions on themes from the four core texts of the Ne-Confucian canon and a further five or more classics, extended dissertations on the classics, history, and contemporary subjects, verse composition, and at various times the ability to write formal administrative statements and dispatches. To be at all hopeful of success,t he candidate should have read widely in the extensive historical literature, thoroughly digested the classics, developed a fluent calligraphy, and mastered several poetic styles. …

As the authors ask, Why?

Perhaps the Chinese just wanted well-rounded, intelligent administrators rather than grinders who just “studied for the test,” and figured that testing on such wide variety of qualitative topics would do the job.

Of course in practice this probably just meant that people shifted what they were studying from one subject (say, proper punishments for various crimes) to other subjects (eg, poetry), but it’s hard to make a perfect system and we might as well ask why some systems require men to be ritually circumcised before they can assume leadership positions.

(Still better than being a Chinese eunuch.)

The authors have their own theories:

A more interesting explanation focuses on the content of what they were studying–Confucian literature and philosophy. There are two characteristics one would like officials to have. One is the ability to do a good job. The other is the desire to do a good job. … One might interpret the examination system as a massive exercise in indoctrination, training people in a set of beliefs that implied the job of government officials was to take good care of the people they were set over while being suitably obedient to the people set over them. …

The ideal Confucian Emperor would never punish anyone for anything, merely set an example of virtuous behavior so perfect that it would inspire all below him.

?? This sounds like an improbable ideal, unless espoused by the most truly ivory tower of academics.

I suppose even Imperial China had its bad ideas.

Seen from that standpoint, it made some sense to set up a system designed to produce good men, put them in power and then leave them alone.

I think Socrates would like this idea, but of course:

In the system as it actually existed, crime was prevented not by moral example but by an elaborate penal system.

The authors propose a further idea, that the purpose of the system wasn’t so much to chose officials–after all, so few officials actually got chosen that this is almost just a rare side effect of the system–but to get as many people as possible to study for the exam. If we think of studying for the exam as like going to college, and actually getting a job as like the very rare case of someone becoming an astronaut, we would certainly say that the purpose of college is not to become an astronaut, but “to produce well-educated people who are good at their jobs.”

(If we are not being cynical and going down the “college is mostly signaling” route:

The problem with this theory is that there should be much less expensive ways of generating the same evidence. So far as intelligence is concerned, a few days of testing should do it…

Well, there really ought to be a way to figure out who should be considered a tribal authority without ritual circumcision, but there you are.)

This is an interesting and really quite clever idea.

The authors’ final theory is indoctrination in the justification for the legitimacy of the Chinese state, which ties neatly into the previous idea.

On to the legal system itself:

The State and the Family: Subcontracting Enforcement

In Qing law, as in the law of earlier dynasties, legal consequences depended in part on the status of the parties, both absolute status–the rules for government officials and Manchus were different than the rules for ordinary commoners and those in turn different than the rules for groups of especially low status–and relative position within the extended family. All relatives were classified as senior or junior to each other. … Relative status in turn affected penalties…

It is common to include among the offenses of oppressive polities forcing children to inform on their parents. Imperial China had precisely the opposite approach. It was a criminal offense for a child to accuse his parent of a crime even if the parent was guilty…

My understanding is that this system can also be oppressive, especially if you are the person your parent has committed a crime against.

The system relied heavily on parents and grandparents to enforce the law against the younger members of their families (even allowing them, under certain circumstances, to carry out capital punishment).

This reliance on elder enforcement appears to be due to the relative paucity of official bureaucrats available to enforce the law, due to the dearth of people who had actually managed to pass the third exam–or perhaps the Empire did not bother increasing the number of officials because families were already doing an adequate job of policing their own.

The existence of essentially two different sets of authorities–one’s family and the state–sometimes lead to conflicts. It was illegal to disobey one’s parents, even if those parents ordered an illegal act. At the same time, the act itself remained illegal.

Another way system dealt with the paucity of legal officials was by simply discouraging people from using it by making court cases as unpleasant as possible:

One way of doing so was to treat most private practice of law as criminal. Practitioners, “litigation sticks,” were viewed as troublemakers out to stir up unnecessary conflict. … It was legal to torture witnesses in the process of extracting information from them.

The authors quote:

Shouted at and reviled by the magistrate, growled at and beaten by the constables, the position of the accused was a most unfavorable one indeed. Small wonder that having to appear in court was considered by the people at large as a terrible misfortune… In general people tried to settle their differences as much as possible out of court…

Law was a headache for any magistrate sitting as a judge. Among the public it was generally ruinous for all concerned. The fees paid to [criminal catchers] might bankrupt plaintiff as well as defendant. …

Imperial edicts even urged the populace to avoid the courts rather than crowd into them.

This is why I characterize this system as “Please go away and leave us alone.”

But what about contract law?

The authors discuss the Japanese acquire of Taiwan in 1895, prompting them to try to determine what its legal system was–creating useful records for us today:

One feature of that system was the combination of elaborate contractual practice with an almost total absence of contract law, at least at the Imperial level.

Taiwanese merchants didn’t limit their trade to far-flung family ties, as developed in some uncertain legal system. Nor did they develop private courts run by merchants, like those of medieval Europe.

The authors don’t have much of an explanation for how these merchants managed to do business, other than developing a system of contracts that minimized the chance of either party defaulting on the other. It is a pity that it has been so long since this system has been (I presume) active; it would be nice to hear how it worked from someone who knew and understood it well.

Nevertheless, it stands in sharp contrast with our own system, in which businesses are engaged in such constant legal battles with each other that lawsuits are considered simply “part of the price of doing business.” We are a deeply litigious people; where a problem arises, we are loathe to even consider working out a non-law-based solution.

It is typically assumed that businesses cannot operate without some degree of this help (even I propose a mere 90% reduction in regulatory burden; even libertarians propose that the government should concern itself with enforcing contracts,) but what if we’re all wrong? Would the Imperial Chinese system have worked better with a more user-friendly, more involved legal system? Did its very unpleasantness inspire everyone involved to behave? Or was the formal legal system largely irrelevant, and Chinese business practices shaped by other factors, like local governments, traditions, or just the cleverness and foresight of everyone involved?

 

 

Book Club: Legal Systems Very Different from Ours

Our next Book Club pick is David Friedman’s Legal Systems Very Different from Ours, a topic I’ve found intriguing for at least fifteen years.

From the Amazon blurb:

This book looks at thirteen different legal systems, ranging from Imperial China to modern Amish: how they worked, what problems they faced, how they dealt with them. Some chapters deal with a single legal system, others with topics relevant to several, such as problems with law based on divine revelation or how systems work in which law enforcement is private and decentralized. The book’s underlying assumption is that all human societies face the same problems, deal with them in an interesting variety of different ways, are all the work of grown-ups, hence should all be taken seriously. It ends with a chapter on features of past legal systems that a modern system might want to borrow.

Read up, enjoy, and let’s discuss it in about a month.

Thermodynamics and Urban Sprawl

Termite Mound

Evolution is just a special case of thermodynamics. Molecules spontaneously arrange themselves to optimally dissipate energy.

Society itself is a thermodynamic system for entropy dissipation. Energy goes in–in the form of food and, recently, fuels like oil–and children and buildings come out.

Government is simply the entire power structure of a region–from the President to your dad, from bandits to your boss. But when people say, “government,” they typically mean the official one written down in laws that lives in white buildings in Washington, DC.

London

When the “government” makes laws that try to change the natural flow of energy or information through society, society responds by routing around the law, just as water flows around a boulder that falls in a stream.

The ban on trade with Britain and France in the early 1800s, for example, did not actually stop people from trading with Britain and France–trade just became re-routed through smuggling operations. It took a great deal of energy–in the form of navies–to suppress piracy and smuggling in the Gulf and Caribbean–chiefly by executing pirates and imprisoning smugglers.

Beehive

When the government decided that companies couldn’t use IQ tests in hiring anymore (because IQ tests have a “disparate impact” on minorities because black people tend to score worse, on average, than whites,) in Griggs vs. Duke Power, they didn’t start hiring more black folks. They just started using college degrees as a proxy for intelligence, contributing to the soul-crushing debt and degree inflation young people know and love today.

Similarly, when the government tried to stop companies from asking about applicants’ criminal histories–again, because the results were disproportionately bad for minorities–companies didn’t start hiring more blacks. Since not hiring criminals is important to companies, HR departments turned to the next best metric: race. These laws ironically led to fewer blacks being hired, not more.

Where the government has tried to protect the poor by passing tenant’s rights laws, we actually see the opposite: poorer tenants are harmed. By making it harder to evict tenants, the government makes landlords reluctant to take on high-risk (ie, poor) tenants.

The passage of various anti-discrimination and subsidized housing laws (as well as the repeal of various discriminatory laws throughout the mid-20th century) lead to the growth of urban ghettos, which in turn triggered the crime wave of the 70s, 80s, and 90s.

Crime and urban decay have made inner cities–some of the most valuable real estate in the country–nigh unlivable, resulting in the “flight” of millions of residents and the collective loss of millions of dollars due to plummeting home values.

Work-arounds are not cheap. They are less efficient–and thus more expensive–than the previous, banned system.

Urban sprawl driven by white flight

Smuggled goods cost more than legally traded goods due to the personal risks smugglers must take. If companies can’t tell who is and isn’t a criminal, the cost of avoiding criminals becomes turning down good employees just because they happen to be black. If companies can’t directly test intelligence, the cost becomes a massive increase in the amount of money being spent on accreditation and devaluation of the signaling power of a degree.

We have dug up literally billions of dollars worth of concentrated sunlight in the form of fossil fuels in order to rebuild our nation’s infrastructure in order to work around the criminal blights in the centers of our cities, condemning workers to hour-long commutes and paying inflated prices for homes in neighborhoods with “good schools.”

Note: this is not an argument against laws. Some laws increase efficiency. Some laws make life better.

This is a reminder that everything is subject to thermodynamics. Nothing is free.