Different Law Systems

Economist David Friedman on the Jewish law, saga period Iceland, and the Imperial China legal system

videos | July 10, 2018

I’m an academic economist, but for about the last 30 years my specialty has been in the application of economics in understanding the law. At one point I got interested in the legal system of saga period Iceland, about a thousand years ago, because that was a legal system in which if you killed someone – his relatives sued you. A legal system where they had a system of courts and they had laws but there was no executive arm of government. There was no government mechanism to either prosecute criminals or enforce verdicts. So, if you committed a crime against somebody the victim sued you in the court, the court gave a verdict, you either did or didn’t do what they verdict said. If you didn’t do what the court said you were now an outlaw. It was legal to kill an outlaw and it was illegal to defend an outlaw. So, what the court was doing was establishing for everybody around who were the good guys and who were the bad guys. Then it was up to the good guys to finish the process. So, that turned out to be a very interesting legal system. It lasted for about a third of a millennium, for over 300 years. It eventually collapsed. The last 50 years of it there was a lot of internal conflicts. But even during those 50 years, it looks as though the death rate was something like the highway death rate in the US.

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I then got lazy for a long time and got interested in another legal system that we’ll say something about in a few minutes and I wrote an article about that. Each of those articles, I thought I had learned a lot of interesting stuff in trying to make sense of a legal system very different to what is used to. Then another 10 or 15 years passed and I decided I had been lazy for too long and I needed a way of making myself do more work of that sort. It had been interesting work so I invented a course, a seminar at the law school I was teaching at, on legal systems very different from ours. I started studying a lot of legal systems and I taught that course every other year for about 15 years. I’m now, I think, finished, and I’ve now written it up as a book. It hasn’t been published yet but if people are interested the draft of the book is on my webpage. So, I thought I would say a little bit, because we don’t have very much time, about some of the interesting things in some of the legal systems.
I will start with the English 18th-century legal system which was the 2nd one I started with. On paper it’s like the American system, that’s where we got it from. The only difference is that there were no police and no public prosecutors. In our system, if somebody dents your car it’s up to you to do something about it. You hire a lawyer and sue them. In that system, if somebody steals something from you, it is up to you to find out who did it, to take them to court to prosecute. Unlike Iceland, the government enforces the verdict. There is a government enforcing the law. Bu the part that is done by the police and prosecutor in our system is done by a private individual in that system. That has both attractive and unattractive features, like everything in the world. One of the puzzles is why anybody does it.

Unlike a tort, unlike when they dent your car, you don’t collect any damages. If you succeed, they hang them. Or they don’t hang them, whatever happens to them. There are a number of answers. One answer is that for some crimes there are rewards for correctly getting somebody. That itself has problems because when the rewards get big enough you may try to convict somebody who didn’t commit a crime. Or you may try to trick somebody into committing a crime while you’ve got people watching. And there were some scandals in the middle of the 18th century where it turned out that had been happening. But a different and to me more interesting reason is that you want to deter crimes against yourself. If you imagine that you are somebody who is in a business where you’re vulnerable to shoplifting if you convict one shoplifter the next one may not steal from you. The interesting thing about that, about deterrence as an incentive, is the only way I know of making the prosecutor actually care if you’re getting the right person. If you are a prosecutor in an ordinary political system you want to convict people because it makes you look good, doesn’t matter whether they really did it as long as you can persuade the court they did it. But if somebody shoplifts and you get somebody else, the shoplifter will know you’re a safe target so they might as well do it again. His friends will know it. So, the interesting thing I got out of that was if you can set things up so that the incentives to enforce the law is deterrence of crimes against the person enforcing it, he actually cares whether he gets the right person. There are many many other interesting things about that legal system, but again that book is also up on my webpage. That one is up as a draft because I want comments on it and you can read the chapter about all of those puzzles.

Then there are many other legal systems. One of the other ones I got interested in was Imperial China, that China for about two thousand years, ending in about 1900. Dynasties came and dynasties went but more or less there was a continuous legal system. I first was interested because it looked as though it was the opposite of the Icelandic system. That the Icelandic system as it were crimes were treated as torts. When somebody stole from you or killed your relatives, you sued them. In the Chinese system according to the first things I read torts were treated as crimes. There was no way of suing somebody. All you could do was report them to the district magistrate for doing something bad.

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But it then turned out when I read more recent books based on information that became available after Mao died when people got access to actual court records, that what I had been reading is what the elite thought their system was. The way that the system actually worked you were really doing the equivalent of our tort law pretending it was criminal law. I lend you money you don’t pay it back I go to the district magistrate and say: “That person is a swindler, didn’t pay me the money they owed”. And the magistrate says ‘alright, we’ll have a hearing on this in a week.’ I then go to the person who owes me money and says: “You know, if we have a hearing and he convicts you, very bad things are going to happen. Now would you like to pay me the money”? And if he agrees to pay the money I can’t cancel the case it’s not like a tory case where I’m suing. But the magistrate is a busy man so when both of us go to him and say, ‘we humbly ask you to forget about the case.’ He forgets about the case. So, it’s really working like a tort case even though it’s a criminal case. I thought that was very interesting because it’s one of many examples of how people really work around the formal structure of a legal system to do what they actually want to do, and that’s an interesting pattern.

There are many other interesting things about the Chinese system. One of the things people say about a very tyrannical government including the government there 50 years ago, is that they try to make children inform on their parents. In Imperial China, accusing your parent of a crime your parent had committed was a criminal offense by you. It was illegal to report on your parents. The question is why. And the answer, I think, is that by the 19th century they were ruling over a population of over 100 million. Very large population for the time, with a very small bureaucracy of elite scholar-officials. How do you do it? You subcontract as much of the job as you can to other authority structures. And the other important authority structure besides the Imperial government was the extended family. So, they were setting up their legal system in order to give the parents authority over their children and grandchildren and nieces and nephews so that they can enforce the rules. If children could inform against their parents that would give them leverage over the parents which would weaken the system by which it was controlled. So, I think if you try to make sense of that system, one explanation is that it came from Confucian ideology or religious beliefs. But a different explanation is that it actually made sense that that system minimized the amount of work that the courts themselves had to do. So, that’s another example of an interesting system.

There’s another pattern that I came across in a number of systems starting with the Icelandic system and that’s of systems where law enforcement was private and decentralized. I’ve been calling those feud systems. Whenever I say that I explain to people that the word ‘feud’ and the word ‘feudal’ have no connection. They happen to sound the same but they come from different roots, mean different things. The basic logic of a ‘feud’ system is that if you wrong me, I threaten to harm you in some way. In order for that system to work as a form of law enforcement, there are a number of things you have to manage. You have to have some way so that my threat only works when you really have wronged me. You have to have some mechanism whereby right makes might. In the Icelandic system which was the first such one I looked at, the mechanism by which right makes might be the court system. If you really wronged me the court would say you owed me money and if you didn’t they would say you didn’t. In Northern Somalia, in Somaliland, they had a feud system that was somewhat less structured that the Icelandic, with other mechanisms such that on the whole, my threat to harm you was only believable if you really had wronged me. There are a number of other things you need some way were relatively powerless people can get their rights protected. The Icelandic system was the best such example I know of.

What happened was if you wronged me it was like a tort system, if I win my case you owe my money. I can transfer that claim to somebody else so I’m an elderly man, I have one son, you kill him. If I sue you I get beaten up on the way to the court. But my neighbor, he has four strong sons, Vikings in their youth, and lots of friends so I transfer my claim against you to him. He enforces it and he maybe shares the money he gets with me and thus even though I have no power I have a way of getting my rights enforced. I’ve argued that this is a respect in which the legal system of America is a mere thousand years behind the cutting edge of legal technology. Because in our tort system if you get your car dented and you can’t afford a lawyer what do you do? But if we imitated the Icelanders and you could sell somebody your claim you could sell it to a law firm. Whichever firm offers you the highest price is the one that’ll do the best job and then you end up getting your damage payments that’s another one.

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So, part of what I find interring in the whole project is that you get ideas that might work or might not work for us. And my final chapter is about such ideas. More generally the spirit of the project is the assumption that all human societies face about the same problems. That they solve them in a wide variety of different ways. And that they are all grown-ups, they’re all adults. So, you don’t say ‘the Icelanders did it this way because they were stupid,’ If they were stupid it wouldn’t have lasted 300 years. One of the other legal systems I look at is Periclean Athens. That’s a very famous society, produced a lot of stuff and it is very interesting how they did things. One of their rules which you might also imitate if you sued somebody and lost, you owed him damages for a sixth of the amount that he owed you. And if you have a legal system that makes mistakes if I sue you and you are innocent there’s some chance you’re going to lose so I get penalized for imposing that chance by the fact that if you win the case I now owe some damages to you. I have a discussion in the book and in the article wrote, of some problems with high technology law in America, I live in Silicon Valley, which could be solved by that. Because you have companies that are called non-practicing entities which buy up patents but don’t do anything with the patents. Then when some company does something that looks at all like one of their patents they sue them. You can’t sue them back because they aren’t practicing a patent so you can’t say they’re violating your patent rights. And then they ask to be paid off. That would be less profitable if every time they lost a case they owed damages to the people they sued. So, I’ve discussed that idea as another case where you have an idea from an ancient legal system that we might want to use.

But I’ve got lots of other interesting things. I’ve got a number of what I think of as embedded legal systems. Where you have a legal system and then a smaller society inside that system with its own rules that it enforces on its own people. So that, for example, the Romani are an embedded legal system. There are several different ones because there are different Romani in different places. But they have their own set of rules, Romania, which describe how they are supposed to behave and that they enforce against their own people mostly by the threat of ostracism. And the Amish in America have their own little legal system, in fact, a bunch of them because each congregation has its own. Jews during the Diaspora was very very common during the period in between the destruction of the kingdom of Israel and the Enlightenment in the 19th century that Christian and Muslin rulers found the easiest ways of dealing with their Jewish subjects was to subcontract the job of ruling them to the Jewish communal authorities in exchange for taxes. And that meant that for more than a thousand years after the destruction of the Kingdom of Israel most Jews were under Jewish law even though they had no government and no state of their own. So, all of those are interesting and you can see how do such things work, what are their problems, when do they survive, when do they break up and so forth. So, all of these are interesting things and as I say if you go on my webpage which is daviddfriedman.com you can read the draft and you can send me emails telling me what I got wrong or what I ought to say or what question isn’t answered for that.

Ph.D. in physics at University of Chicago, Professor of Law at Santa Clara University
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