Posted on November 13, by Scott Alexander I. Medieval Icelandic crime victims would sell the right to pursue a perpetrator to the highest bidder.
Somali judges compete on the free market; those who give bad verdicts get a reputation that drives away future customers. Law is a public good. If you steal my gold, I have some interest in catching you and taking it back, but no more than I do in catching some other poor shmuck and taking his gold. This is the classic situation where economists usually recommend government intervention.
Maybe you live in an area like Somalia or medieval Ireland without a strong centralized government. Gypsies living scattered in foreign countries have generally wanted to run their own communities by their own rules.
But something does stop them from trying to enforce them: So the Vlach Rom — Romanian Gypsies — organize courts called kris which enforce their sentences with threat of banishment from the community. Kris courts can declare the worst offenders polluted, ensuring their speedy ostracization from Gypsy society.
And since non-Gypsies are polluted by default, the possibility of ostracism and forced integration into non-Gypsy society will seem intolerable: The effectiveness of that threat [of ostracism] depends on how easily the exiled gypsy can function outside of his community.
It follows that they are all polluted, unclean, carriers of a contagious disease, people whom no Rom in his right mind would willingly choose to associate with; when and if such association is unavoidable it must be taken with great care. The gypsy view of gaije, reinforced by the gaije view of gypsies as uneducated and illiterate thieves and swindlers, eliminates the exit option and so empowers the kris to enforce gypsy law by the threat of exclusion from the only tolerable human society.
Amish also live under the authority of a foreign culture and have settled on a similar system, with a twist. The basic unit of Amish society is the church congregation; Amish settlements big enough to support multiple churches will have many congregations mixed together. Amish congregations are nominally democratic, but in practice Friedman calls them dictatorship-like because everyone votes the way the bishop wants. This makes it a rare remaining example of a polycentric legal system outside anarcho-capitalist fantasies or Too Like The Lightning: Such a system can be viewed as a competitive market for legal rules, constrained, like other competitive markets, to produce about the product that the customers want.
Competitive dictatorship is the mechanism we routinely use to control hotels and restaurants; the customers have no vote on what color the walls are painted or what is on the menu, but an absolute vote on which one they patronize.
They do encounter the same problem as the Gypsies: The Amish have some internal mechanisms to prevent this: Of course, you can still leave the Amish community and go join broader American society. But have you seen broader American society? There were no public prosecutors; anyone who felt like it could bring a criminal to court and start prosecuting him, but if nobody felt like it then the crime remained unpunished. Prosecuting took a lot of time and money and was generally a thankless task.
The exotic anarcho-capitalist part comes in as English civil society creates its own structures to work around these limitations. Merchants, landowners, and other people with wealth banded together in mutual-protection-insurance-groups. Everyone in the group would pay a fixed amount yearly, and if one of them got robbed the group would use the money to hire a prosecutor to try the criminal.
Group members would publish their names in the newspaper to help inform thieves whom it was a bad idea to rob. Once a trial was underway, prosecutors would usually cut a deal: The size of the bribe would vary based on how much the offender could pay, the extent of their crime, and the facts of the case and therefore the likelihood of the magistrate choosing hanging vs.
This not only helped tailor the punishment more precisely to the crime, but helped defer the cost of prosecution: What both modern and contemporary commentators seem to have missed is that, however corrupt such arrangements might be from a legal standpoint, they helped solve the fundamental problem of private prosecution. The possibility of compounding provided an incentive to prosecute-it converted the system into something more like a civil system, where a victim sues in the hope of collecting money damages.
And while compounding might save the criminal from the noose, he did not get off scott free. He ended up paying, to the prosecutor, what was in effect a fine. If an Icelander thought a crime had happened, they would go to court and plead the case themselves. If the court pronounced a guilty verdict, it would demand a penalty from the criminal. Usually this was a fine paid to the victim; even murders were punished with wergeld.
If the criminal paid the fine voluntarily, all was well. One obvious objection to a system of private enforcement is that the poor or weak would be defenseless.
The Icelandic system dealt with this problem by giving the victim a property right — the right to be reimbursed by the criminal — and making that right transferable. The victim could turn over his case to someone else, either gratis or in return for a consideration.
A man who did not have sufficient resources to prosecute a case or enforce a verdict could sell it to another who did and who expected to make a profit in both money and reputation by winning the case and collecting the fine. This meant that an attack on even the poorest victim could lead to eventual punishment. A second objection is that the rich or powerful could commit crimes with impunity, since nobody would be able to enforce judgment against them.
Where power is sufficiently concentrated this might be true; this was one of the problems which led to the eventual breakdown of the Icelandic legal system in the thirteenth century. But so long as power was reasonably dispersed, as it seems to have been for the first two centuries after the system was established, this was a less serious problem.
A man who refused to pay his fines was outlawed and would probably not be supported by as many of his friends as the plaintiff seeking to enforce judgment, since in case of violent conflict his defenders would find themselves legally in the wrong. If the lawbreaker defended himself by force, every injury inflicted on the partisans of the other side would result in another suit, and every refusal to pay another fine would pull more people into the coalition against him.
Conflict between two groups has become so intense that open fighting threatens to break out in the middle of the court. A leader of one faction asks a benevolent neutral what he will do for them in case of a fight. He replies that if they are losing he will help them, and if they are winning he will break up the fight before they kill more men than they can afford! Even when the system seems so near to breaking down, it is still assumed that every enemy killed must eventually be paid for.
The reason is obvious enough; each man killed will have friends and relations who are still neutral—and will remain neutral if and only if the killing is made up for by an appropriate wergeld. I think this is asking: Suppose Warren Buffett cuts off my arm. The court asks him to pay a fine, and he refuses, so the court declares him an outlaw and legally killable. I gather some of my friends to form a posse to kill him, but he hires a hundred bodyguards to resist me.
Now the court declares the mercenaries outlaws. But it seems like at some point maybe more than half the population of Iceland will be outlaws, and then maybe they just have to declare a new legal system or something.
An Icelander might retort: The police would come after you? This works just as well in medieval Icelandic anarcho-capitalism as it does in modern America. In Seeing Like A State, ordinary people living their daily lives blunder into highly advanced systems for doing whatever it is they do.
Primitive farmers will know every tiny detail about exactly when to plant which crops, and how to exploit microvariations in soil quality, and know ridiculous tricks like planting fish heads in the ground as fertilizer. Ordinary city-dwellers will organically build houses and stores and streets in exactly the right fractal patterns to maximize some measure of quality of life. And a lot of them are too brilliant, and need too many weird interlocking parts, to be the work of any single person.
Friedman frames this in economic terms. The mutual-protection-insurance-groups of 18th century England work this way: Same with the criminal-prosecutor bribes; someone thinks it up, it leaves both sides better off, so everybody who hears about it does it.
Conflict is an especially fertile ground for cultural innovation. Friedman stresses how many legal systems, including advanced ones with lawyers and codes and everything, show signs of originating from feud systems, which might be the most basic form of law. They work like this: A slightly more advanced version that takes account of possibly power differentials between offender and victim: So we end up with an even more advanced version: The Somali system seems to be somewhere around here: In fact, one of the most interesting things I got from this book is that all legal systems need a punishment of last resort — one that can be enforced whether or not the offender agrees with it — but these punishments practically never happen in real life.
The English will hang criminals at the drop of a hat — but since the threat of hanging incentivizes them to bribe prosecutors, in reality few people will need to be hanged. The Icelandic courts could declare offenders outlaws who can be killed without repercussion — but the threat encourages Icelanders to pay the wergeld, and nobody has to get outlawed. The Somalis are ready to have murderous family feuds — but the possibility of such a feud keeps people willing to go to arbitration.
Even our own legal system works like this. The police can physically drag you to jail, kicking and screaming. First, something kept seeming off about all the legal systems mentioned, which only clicked into place about halfway through: A lot of them worked on a principle like: As weird as it is to punish murder with a fine, the fines these societies levied for murder sounded really high: If a member got convicted of a crime, everyone else would come together to help them pony up the money.
But it has the same feeling of nobody expecting very many crimes to be committed. One little-admitted but much-worried-about justification for mass incarceration in our society is the concern that some people are just so naturally violent that, left in the outside world, they would offend again and again until they died. If someone killed, their family would give up the relevant number of camels, and then everyone would be on their way.
As far as I can tell, the Amish have no idea what to do about any crime more dire than using a telephone. Nobody used anything at all like incarceration. A few far-leftists have flirted with the idea of abolishing police, and the only way I can make sense of this is by analogy to something like Somali or Icelandic law. These were genuine community-based non-hierarchical legal systems.
And, for the place and the time, they seem to have worked really well Somaliland, which uses traditional Somali law, is doing way better than Somalia proper, whose law system is somewhat westernized.
Just cancel all funding for the Baltimore Police Department and hope for the best? And also, the cultural evolution idea is really optimistic.