Legal Systems Very Different

1. Legal Systems Very Different Many societies, many times and places All have legal systems, broadly defined All face about the same problems Solve them in different ways Learning about them is useful to See if our approach works in general Get ideas for ways we could do things Get information about the consequences of doing things in different ways Three examples in the book Saga period Iceland: Pure tort 18th c. England: Privately prosecuted criminal Current Shasta County: Norms instead of laws Many more examples in my seminar

2. Iceland: History • Ninth c., Harald Haarfagr unifies Norway • Not everyone likes the result; Iceland recently discovered • Load up your longships and go • Settlement starts 870, legal system 930 • Based on traditional norwegian law, but • No king • Hence no executive arm of government • First big problem c. 1000: Christian vs Pagan • Fewer than a dozen people killed, then • Settled by arbitration • C. 1200 level of violence starts increasing • 1263-4 vote to turn the country over to the king of Norway.

3. Legal System • Goi: Mistranslated “chieftain” • Person who links farmer to legal system • “Whose godord are you in” equivalent to “what is your citizenship” • Voluntary, non-geographical, competitive • Can be the thingman of any Goi who will have you • And can freely change • Goord: two meanings • Bundle of rights belonging to a GoI • Group of people who are his “clients.” • Fixed number of them--about 40 • Transferable, marketable, heritable • Think of it as a franchise

4. Court system • Which court a case goes to • Determined by whose Goord each party is in • Analogous to our diversity jurisdiction • Pure tort system • Prosecution by the victim • Verdict normally money damages • If the defendant loses and doesn’t pay • Plaintiff goes to court to have defendant outlawed • It is legal to kill an outlaw, tortious to defend him • In practice, outlaws normally leave Iceland

5. Problems • Poor victim • If I don’t have friends or kin who will fight for me • How do I keep defendant from forcibly blocking the suit • How do I kill outlaw? • Equivalent to our “if I can’t afford a lawyer” • Judgment proof defendant • If the defendant can’t pay the fine • Why bother to prosecute • And what good does winning do? • Stability of the system • What if losers just ignore the verdict • And their kin and friends fight for them?

6. Solutions • Poor victim • Tort claim is marketable • Can sell it to someone able to collect • Judgment proof defendant • Alternative of death or exile a strong incentive • Not to commit torts you can’t pay for and • To find some way of paying for them--borrow from kin • “Debt thralldom:” work off the damage payment • Stability of the system • Defending an outlaw is tortious, so … • Each fight that hurts people generates new cases • Which the kin of the good guys win • If damages not paid, the good guy coalition keeps growing • Njal Saga anecdote

7. Other problems? • Gaming the legal system? • A good “lawyer” might find tricks--another Njalsaga story • but … • The other side can always abandon the case • Kill the defendant • And offer to let the wergelds cancel when it goes to court • Cost of finding out who the criminal is? • More severe punishment if you conceal the crime • Open killing is just killing • Secret killing is murder. Fewer defenses, shameful • Egilsaga story. Death of Gunnar story?

8. Conclusions • How well did it work? • Sagas show lots of violence--but • Until the final period, very small scale • Four of us attacked three of them • One person killed, two wounded • Most feuds seem to settle fairly quickly • Either by a court case, or … • Arbitration • The few that don’t are the ones that generate sagas • There was a final period of breakdown--after 250 years or so • Perhaps the influence of a foreign ideology--kingship • Or the king of Norway meddling • Or Christianity->tithes->tax revenues for leaders • Or increasing concentration of power, less competitive system • Contrast to the later conventional (royal) system • Transition from paganism to christianity: 5-10 lives • Transition from Catholic to Lutheran: 40-50

9. Lessons for us? • Marketable torts: Might be a good idea • If someone smashes your car and hurts you • Can you afford a good lawyer? • Contingency fee--but how do you choose a lawyer? • With marketable torts, just auction off the claim • Might also solve the class action problem • How do you make the class lawyer serve his “clients?” • Let him buy up the claims from middlemen who collect them • He sues for himself, they get a market determined price • Workability of a pure tort system • With marketable torts and • Backup punishment for the judgment proof

10. England in the 18th Century • On paper, our legal system • Tort law, where the victim sues • Criminal law, “Rex v Jones” • But Rex doesn’t have a prosecutor • Any Englishman can prosecute any crime • In practice, the victim usually prosecutes • Why does he bother? Can’t collect damages • Punishment at the extreme • Benefit of clergy: Clerics under church courts • Which didn’t have a death penalty • And definition of “cleric” pretty elastic • And by 1600 the church no longer had much of a court system • So a get out of jail card (once). Until … • All serious crimes became non-clergyable felonies • For which the only punishment in the law was • Hanging

11. Puzzles • What was the incentive to prosecute? • The victim pays the cost of the prosection • And the criminal, if convicted, gets hanged • Why no imprisonment for serious crime? • In practice, not nearly all criminals were hanged • “Pious perjury”--jury finds guilty of lesser included offense • Pardoning on condition of transportation • Or enlisting in the army or navy, or .. • Just pardon and send home • Of those charged with non-clergyable felonies • About 40% convicted of them • About 40% of those hanged (by memory, not precise) • In one study of records from one court system • Why convict someone and then pardon him?

12. Incentive to prosecute • To be paid to drop the prosecution • “compounding a felony.” Illegal … • Although encouraged for lesser offenses • And seems to have occurred for felonies • To deter felonies against the victim • Easy to see if he is a likely repeat victim • Who wants a reputation to deter offenders • “We prosecute shoplifters” signs today • And for more ordinary victims, they invented • The association for the prosecution of felons • Thousands of them created over the period • Potential victims in a town pay an annual fee • The money goes to prosecute felonies committed against any member of the association • And the membership list is printed in the newspaper for the felons to read • Looks like insurance, actually a commitment strategy

13. Pattern of punishment • Imprisoning potentially violent criminals is expensive • Can try penal slavery, but it may not pay its way • History of galley slavery is instructive • For Britain, transportation the next best thing • Or enlistment • When transportation interrupted, experiment with penal slavery a loss • Experiment with large rewards as incentive to prosecute • For a few crimes, such as highway robbery • Perhaps where precommitment doesn’t work? • Generated a series of scandals • Entrap someone, convict, share out the reward, or… • Fake a crime with fake witnesses, collect the reward • “Perjured testimony for sale here” • Why pardoning? • Price discrimination? Some criminals easier to deter. • Discriminate by value of the criminal’s life to others? • Perhaps a market in favors • Earlier, the crown sold pardons • Now, perhaps political loyalty for the influence that got them • Boswell’s account is instructive

14. Lessons for Us? • Deterrence can be made a private good • Useful in a pure tort system • For getting judgment proof offenders sued • Especially with a backup punishment for those who don’t pay • Tension between the virtues of efficient punishment • And the risk of too much incentive to punish

15. Shasta County: Norms • The story • Coase says open range/closed range, same behavior • Shasta county a patchwork of open/closed • Ellickson went to look • Coase is correct in his prediction, but … • For an entirely different reason • The system: Norms of neighborly behavior • Privately enforced by mainly social sanctions • Violate the norms people don’t like you • One norm is that neighbors don’t sue neighbors • So for some issues formal law becomes irrelevant • Including damages due to straying cattle

16. Norm for Straying Cattle • If my cattle damage your crop • I am expected to be apologetic • If necessary help replant your tomatoes • Try to keep it from happening again • Enforcement • Social pressure. If that doesn’t work • Drive your cattle a few miles in the wrong direction • Let you find them if you can • But never the efficient punishment • Ten cattle stray on my land--for the fifth time • Convert one into beef in my freezer • Call you to complain that nine of your cattle are on my land • Why not?

17. Why use an inefficient punishment? • Victim is his own judge and jury • The punishment costs him as well as the owner of the cattle time and effort • If punishing is expensive, only does it • When the offense is real • wants deterrence • If punishing is profitable … • Which brings us back to the • Efficiency of inefficient punishment • As a way of not giving too large an incentive • To punish--even when not justified • Lesson for us • The harder it is to keep the system honest • The more important to limit to costly punishments

18. Other systems: Athens • A government of amateurs • “Democracy” in which every official but the generals • Is chosen by lot • Private prosecution of crimes • Prosecutor gets a cut of the large fine • Obvious incentive to bogus prosecutions, but … • Fine or getting less than 1/5 of the jury to vote for guilt • “Liturgy” to produce public goods • If you are one of the richest Athenians • Every other year you are selected to produce a public good • Go get out of it, you must either • Show you already did such this year or last or • That there is a richer Athenian who didn’t • How, in a world without accountants, do you prove • Another Athenian is richer than you are? Offer to trade everything you own for everything he owns If he refuses, he has admitted to being richer than you are

19. Imperial China • Large population, small bureaurcracy • How do you rule it? • Subcontract the job to other structures • Most notably the extended family • We think it oppressive when • A political system tries to force • Children to spy on their parents • The Chinese made it illegal for • Children to accuse their parents • Even of crimes the parents had committed • Make involvement with the legal system dangerous • Witnesses could be tortured, for instance • So accusing someone else a good way of getting him in trouble? • Anonymously, to keep yourself out of trouble • For an official to read an anonymous accusation was a crime!

20. Cheyenne Indians • Llewellyn and Hoebel: The Cheyenne Way • Some government part of the year • A good deal of casual violence, but … • Killing another Cheyenne a strict liability crime • Exile for some years, because • You smell of death • Bad luck to associate with you

21. Some general issues • Mechanisms for prosecuting • State employees • Tort like system • Private deterrence in a criminal system • Mechanism for enforcement • State actors • Private actor--Icelandic feud • Community action--ostracism, social pressure • Side effect of private action: Reputational enforcement • Incentive to enforce • You need enough, but … • Not too much

22. One Specific Issue • We have both tort law and criminal law • Doing about the same work • A does something bad to B • The legal system intervenes • Something bad is done to A • Which is a reason not to do bad things • Is there a good reason to have both? • Iceland managed without criminal law • China without tort law • Is there a good reason to sort offenses as we do? • Why are some bad things considered crimes • Others torts. Others both • Are there good reasons why the legal rules of the two systems differ as they do?