Ancient Legal Innovations
Interesting ideas from pirate law, medieval Icelandic law, and other early legal systems
I had planned to attend David Friedman's lecture about his latest book, Legal Systems Very Different From Our Own1 back in March at the Adam Smith Institute in London. Unfortunately, unexpected circumstances prevented me from attending. Having now read his book, I really regret not being able to hear what must have been a fascinating talk.
The book covers various legal systems across time and space, from medieval Icelandic law to imperial Chinese law, to Jewish and Islamic law. Some of these are not quite what a layperson would recognise as a legal system, but are more akin to a bundle of rules and social norms obeyed by members of a society. A student of Hart however, would recognise that the presence of secondary rules governing recognition, adjudication, and change of rules, mark these systems as legal rather than pre-legal.
Despite the centuries separating our modern world from these early legal systems, it is striking how similar they are to ours and the ingenious ways by which they sought to overcome limitations in manpower, speed of information transmission, etc.
I've summarised some noteworthy insights below, but much more can be gained by reading the book in full.
Pirate law incorporated separation of powers between the office of captain (executive, but only during battles) and quartermaster (democratically-elected judiciary, whose role included judicial review of abuse of authority by the captain). Pirate laws were contained in a set of written articles assented to by all members of the crew, which appropriately constrained the power of the captain and quartermaster.
For some time in the 18th century, pirates exploited a legal loophole common in many national legal systems to avoid punishment upon capture. Courts would not convict people whom pirates had forced at swordpoint to join their crews, so pirates pretended to conscript willing recruits, thereby providing them with a plausible defence in the event they were captured.
A notable feature of the medieval Icelandic legal system is the fact that claims were marketable. A victim's right to compensation for damage to property, to person, etc. could be transferred to another person in exchange for money or other things. This was necessary because the law was privately enforced (there were no public prosecutors, bailiffs, etc.). Making claims marketable therefore ensured that an attack even on a penniless victim could lead to punishment for the perpetrator. Much like a protagonist in a fantasy RPG, an enterprising person could roam the land taking on quests from various victims for a monetary reward, or simply for fame, glory, and status.
Valuing someone's net worth is a tricky business. The Athenians had an brilliantly simple solution to this. Only a fixed number of the richest Athenians were liable to contribute to public goods (essentially, a form of taxation). To determine who were the richest Athenians, a list would be made by guesstimation which would then be subject to challenge by any member of the list. A challenger had to name a person richer than them who was not on the list, and then offer to exchange everything they owned for everything the other person owned. If the other party refused, they would have admitted they were richer, and so would take the challenger's place on the list.
Mandatory mourning periods (which lasted for years) might have been intended to prevent too much power from accumulating in the hands of any single official. The ambitions of a rising official could be interrupted at any time by the death of a parent or child.
Why would the civil service require candidates to study for and pass exams covering subjects (e.g. classics, ancient history, etc.) that have little to do with the work the civil service does? The famous national examination for admission to the civil service can be seen as a massive exercise in indoctrination. The effect of these exams may have been to inculcate certain beliefs and ways of thinking consistent with public spiritedness, loyalty, and selflessness. Officials with such traits were probably less likely to abuse their power or engage in corruption. Imbuing the social elite with such attributes may also have had knock-on effects on society at large. Some modern education systems (e.g. a liberal arts education) also involve education in non-practical subjects, perhaps to achieve similar goals?
One solution to the problem of insufficient manpower and resources to resolve legal disputes is to subcontract as much as possible to domestic authority structures. The emphasis on filial piety, obedience to parents, and the authority of the parent within the family resulted in many disputes being handled domestically without taxing the formal legal system.
The strain on the legal system was also alleviated by making involvement with the legal system as unpleasant as possible for both sides. Witnesses from both sides could be tortured, and the result reached by the court need not have been one either party was advocating for, and might benefit neither side. For instance:
An Imperial magistrate dealing with a sufficiently tangled property dispute might resolve it by awarding ownership to neither party, converting the land to state property with its income dedicated to some good cause such as supporting a school.
The system encourages an inward-focused social structure such that its members have few ties to the outside world and are mostly familiar with and dependent on social ties within the society. The anecdote below illustrates this well:
A young woman explained why the church frowns on central heating systems: ‘A space heater in the kitchen keeps the family together. Heating all the rooms would lead to everyone going off to their own rooms.’
Bishops are the final arbitrators of law within the system. They appear to be dictators, being neither subject to impeachment nor election. However, the system is better described as a competitive dictatorship because any member can leave the congregation at any time and move to one led by a bishop with more favourable rules. This is essentially a competitive market for legal rules, much like that between national legal systems today.
Oaths (the process of swearing that testimony is true) are a very useful legal device for determining the truth. Assuming both claimant and defendant truly believe in the religion and the likelihood of punishment if they swear falsely, oaths essentially function as lie detectors.
- A draft of the book is available at http://www.daviddfriedman.com/Legal%20Systems/LegalSystemsContents.htm↩