The exotic anarcho-capitalist part comes in later

Saturday, December 2nd, 2017

Eighteenth-Century England had a government, a court system, and some minimal law enforcement, but the system seems ludicrously backward at first glance:

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. And the government didn’t want to go to the expense of imprisoning people, so they usually just hanged convicted offenders (if the crime seemed really bad) or pardoned them (if it didn’t seem to merit hanging). 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. But this wasn’t about leaving poor people out to dry. The groups would also help indigents who couldn’t afford their own prosecutors, partly out of a desire to crack down on crime before it reached the point where it could inconvenience them. They wouldn’t help people who could have afforded insurance but declined anyway, though — otherwise there would be no incentive to buy in.

What about the lack of good punishments? Once a trial was underway, prosecutors would usually cut a deal: the offender would bribe the prosecutor with a certain amount, and the prosecutor would drop the case. 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. pardon). This not only helped tailor the punishment more precisely to the crime, but helped defer the cost of prosecution: victims (or their mutual-protection-insurance-groups) were incentivized to press charges because they could recoup their costs through the bribes paid to drop them:

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.


  1. Gaikokumaniakku says:

    Lawsuits are a bad substitute for dueling. If a gentleman is out of control, any other gentleman ought to issue challenge, whereupon both parties can fight with swords to the death.

    If a churl is out of control, there’s no need for formalities.

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