Introduction (1-8)
Course Structure
Pre-state Societies
Four Legal Institutions
1) Islamic Legal Tradition
2) Chinese Legal Tradition – focus on criminal/penal/public law
a) Rule by law
3) Civil Law
a) Roman Law – focus on private law
i. Ordered relationships btwn civilians
1. Jus Civilis – law governining citizens
4) Common Law
Structuring of Legal Systems
Election of judges, judicial review, etc
Transnational Institutions
Custom:
Pre-state societies (Native Americans)
Iceland
China
Nation State/
Western norms
Islam
Law Created
Group
Legislature
Emperor/Gov’t
Legislature
Divine Revelation – from God
ID Violations
Group
Private
Bureaucrat (magistrate)
Private/public ID of violation
Private/public ID of violations
Apply
Chief/Group
Ct
Bureaucrat
Ct
Ct
Enforce
Group
Private
Bureaucrat
Executive
Executive
Three Braches Seen in Most legal systems
1) Who creates/makes the rules
God, King, Elected Officials (usually)
2) Institutions: Apply Rules
3) Executive – make sure rules enforced
Influences on Law
Colonialism – responsible for spreading the 3 branches of gov’t
Globalization – putting pressure on nation states, super-national powers/forces taking decisions away from national powers
Economic – Levmore
Political Theory – Marx
Geography (or isolation of a country)
Culture – beliefs, values (ex. Individualism, litigiousness)
Path dependency – certain decisions are sticky for a particular reason, Ex:
network good (telephone),
one person’s benefit ↑ed by the use of others of the same good
Stickiness of past Decisions – once decision made, even if bad decision, difficult to change (keyboard configuration), So makes different legal systems to maintain different standards
Why does law vary?
Montesquieu, The Spirit of the Laws (1748)
Separation of powers, based on British ideals, heavily influenced US constitution
Law is dependent variable,
dependent on features of different countries,
founder of law and society
Sources of divergence of law in different states –
history,
morals,
different ethnic groups w/in states,
prominent historical figures
Levmore, Rethinking Comparative Law: Ancient and Modern Tort Law
Analysis of ancient legal systems, optimistic econ theory, opposite of path dependencies
Rules that are good and are founded on good reasoning are likely to be seen across legal systems
Uniformity when the rule matters behaviorally and divergence when it does not matter
But societies w/bad legal rules aren’t likely to survive long (optimistic)
SL vs. Negligence – same basic outcome will result, efficient levels of care will be taken under either legal regime, DIFFERENCES
a) distribution of costs
b) administration – lower or higher costs
Convergence when econ efficiency is a stake, otherwise divergence
Order W/out Law? Legal Institutions in stateless societies
The Delaware – American Indians.
How Gov’ts set up
Divisions of Labor – by age, sex, skill
Scarcity of Labor: Couldn’t handle complicated division of labor – need more food to support it, they didn’t have enough
Class – had slaves (captured in war)
Leadership (Chiefs) – works as negotiator and dispute resolution, did not make rules
selected by matrilineal descent and appointed by outgoing chief (although not binding)
Medicine Men – picked more based on belief than on actual skill
Women
Women – relatively important role; had word in divorce, matrilineal descent, etc.
Mass Agriculture – may be cause of shift to greater gender inequality whereas less developed societies tend to be more gender equal
Rules They Had – War, Religion, Adultery
Emerged from – social norms – also form of enforcing the law “shame” –
ultimate punishment = banishment, they would die
No need for elaborate laws b/c all individuals know each other, repeat interactions
Blend of criminal and civil law
Food Acquisition
Agriculture – harder to tie effort to output, difficult to monitor – usually individualized
Hunting – easier to know who’s doing work (monitor),
all go out for hunt together – usually collective work and distribution
Collective (strong use of sharing) in societies living at the margin – ex. Food hunted (large animals)
For two reasons 1) economic benefits – carrying back large catch and
2) social norms – how you were taught, expectations
Bailey, Approximate Optimality of Aboriginal Property Rights, ‘92
Differences btwn Humans/Animals – Morality, Trade, internalization of right/wrong
Private Prosecution – common in early stages of legal societies (Iceland, Romans, also 18th England)
US Legal System’s
IDing violations bifurcated btwn
civil (private citizens protect themselves) and
criminal (State: either bring violations to police or take the violation to them)
Kin – mandatory duty to protect your kin and avenge their loses,
Serves to prevent crimes by other groups
Collective violence → reduction of violence, social stability
You can have social order w/o state and w/o law –
Law has a relationship w/norms (builds on them)
Begins by allowing private enforcement – w/a small amnt of enforcement
State eventually replaces normative systems
3 Functions of Law:
Making Rules, (IDing violations, bringing the case),
Applying Rules, and
Enforcing Rules
Jan 17
Friedman, Law’s Order ’99
Lessons
Internal norms are very important
One reason people are not criminals is that they suffer in softer terms—no job, no apt rented, no dating
System of private enforcement
Judgment – expression of legal authority,
Helpful to facilitate coordination btwn parties,
Powerful w/o enforcement, follow rule b/c others will be likely to do so as well
Iceland – told people appropriate way to behave)
Case Studies
1) Iceland – no mechanism for enforcing rules, privately (exclusively) prosecuted each other
“Godi” (Chieftain/landowner) – System organized around
1. 39/40 total on island
2. Right to be a Godi was transferable property like a franchise
Legal System – all law (and its enforcement was private)
To sue:
1. First determine person’s “Godi” to know which Ct.,
2. Then sue, if no payment sue again,
3. If no payment again you can kill opponent.
Problems w/System:
1. Powerful men – systems solves by use of fines and awareness of the cost of killing people
2. Poor Defendant – tort claims transferable so victim can sell claim to neighbor (like contingency fees)
3. Crimes w/low probability of Detection – treat concealment of crimes as further offense
4. Judgment on poor Ds –
a. loans from neighbors or
b. forms of temporary slavery,
c. being killed or exiled was motivation to pay
Major problems – upset balance of power by influx of outside resources, eventually led to collapse after 300 yrs
a. Vote eventually turned Iceland land back over to Norway – ended 300 yr experiment
legal system of private law
§ No executive branch
§ System consisted of court and a legislature with one gov’t employee—
o the logsumador who presided over leg, gave legal advice, and recited the legal code
§ System centered around the office of the Godi—or local representative
§ When suing someone—whoever represented the def, his godi, determined which court he could be sued in
§ P sued for money damages and if def did not pay, pl could kill him with impunity with the help of the community
o Anyone that helps the def is in violation of the law and can in turn be sued
o This reflects the problem of not having an executive branch
o System of priv
option of fine or execution
§ When def borrowed for fine—to secure the pardon, his friends and family were sure to deter him from committing another crime—there were economically invested
§ Form of collective punishment
§ Substituted for efficient punishment
France – System of police and prosecutors and jails and the system collapsed mid-century
§ Why did England not seek a more modern system
o GB was engaged in war for much of the 17th and early 18th
o Knew that if the crown controlled the system, king’s friends could get away with murder
§ Comparing to the modern system
o Note that the incentives of both the enforcers and the enforcees matter
o Police, judiciary, and courts can be and are corrupt
o The state controls criminal prosecution and civil prosecution by the victim
§ Prosecution depended on lots of collaboration and cooperation, which worked best in small towns—see shift from private to public prosecution
§ GB used imprisonment when it was rich enough to afford it
Rationality and a modern view of punishment—criminals were criminal b/c it paid and you had to impose punishments severe enough to deter
Order without law—Shasta County
o Open and close range system where the informal norms are privately enforced and privately judged
o System that is better than self-help b/c the norms are internalized
o System of vengeance and counter measures where punishment would be more efficient, but might be too efficient
§ Close knit groups develop efficient rules
o Whalers in Maine
o Academics in re copyright
The Economist, Pushtunwali, ‘06
Group of ~25m people, some of which have never been controlled
a. has resisted time and Islam
Mandatory vengeance – most important aspect of society, Honor based society
Liberal in some ways
a. Egalitarian, very little social structure and material goods and
b. At the same time very controlling of women (treated as property)
Stein, Development of Dispute Settlement in Stateless Societies ‘84
Difficulty in Determining Guilt of Innocence
Evidentiary system – like flipping a coin now
Ex: If hot coal burned you, meant you were guilty, If not, then not
Jan 22-24
Cts, Dispute Resolution and Social Control
Stein, Legal Institutions, 13-23
Dispute Resolution Continuum
Go-Btwn → Mediation → Arbitration → Adjudication (High formality/law)
Before dispute resolution –
a. Negotiation,
b. Self-help (1st person or 3rd party imposition: Gossip, Shaming, Violence),
c. Surrender (Concede defeat) –
d. If cannot be resolved like this conflict develops in triangle below
Dispute escalates by:
1) 1st IDing dispute,
2) Assigning blame,
3) Asserting claim against them
Naming (of dispute) – ID the wrongdoer
Blaming – ID the wrongdoer
Claiming
* hard to compare across societies: although some societies have less dispute resolution, no way of knowing how many disputes there are total in a
