They really, really didn’t seem prepared for crime

Thursday, December 7th, 2017

Something kept seeming off about all the legal systems mentioned in Legal Systems Very Different From Ours, which only clicked into place for Scott Alexander about halfway through — they really, really didn’t seem prepared for crime:

A lot of them worked on a principle like: “If there’s a crime, we’ll call together a court made of all the town elders, plus at least three different religious leaders, plus the heads of the families of everybody involved, plus a representative of the Great King, plus nine different jurists from nine different universities, and all of them will meet on the Field Of Meeting, and a great tent will be erected, and…” The whole thing sounded like it might work as long as there was like one crime a year. Any more than that and none of the society’s officials would ever have time for anything else.

As weird as it is to punish murder with a fine, the fines these societies levied for murder sounded really high: the Islamic price was a hundred camels, the Irish price was seven female slaves. The average person wouldn’t have that many slaves or camels, so people in Arabia or Ireland would band together into clan/family-based blood-money-paying-groups that acted kind of like insurance companies. If a member got convicted of a crime, everyone else would come together to help them pony up the money. I assume this helped incentivize people’s families to discourage them from committing crimes. But it has the same feeling of nobody expecting very many crimes to be committed. How much of medieval Arabia’s GDP consisted of transfers of 100 camels from murderers to victims’ families?

One little-admitted but much-worried-about justification for mass incarceration in our society is the concern that some people are just so naturally violent that, left in the outside world, they would offend again and again until they died. The societies in this book didn’t seem to worry about this. If someone killed, their family would give up the relevant number of camels, and then everyone would be on their way. As far as I can tell, the Amish have no idea what to do about any crime more dire than using a telephone. Nobody used anything at all like incarceration. 18th century England occasionally sent prisoners somewhere horrible like America, but once the colonies revolted they experimented with jails, found them too expensive, and just sort of flailed around punishment-less until they finally discovered Australia.

There’s a lot of concern about police brutality, police racism, police failure-to-actually-control crime, et cetera. A few far-leftists have flirted with the idea of abolishing police, and the only way I can make sense of this is by analogy to something like Somali or Icelandic law. These were genuine community-based non-hierarchical legal systems. And, for the place and the time, they seem to have worked really well (Somaliland, which uses traditional Somali law, is doing way better than Somalia proper, whose law system is somewhat westernized). But I also know that it’s weirdly hard to get a good picture of how modern crime rates compare to ancient ones. On the one hand are statistics like the ones saying crime has increased by an order of magnitude since 1900 or so; on the other are findings like Steven Pinker’s that violence is constantly declining. Apply the “court made of town elders plus at least three different religious leaders plus…” to Baltimore, and the Field Of Meeting is going to get pretty crowded. On the other hand, in my past work with criminals I’ve been constantly surprised by how much role their families and their communities still play in their lives, and maybe a system that left legal enforcement up to them would do better than the overstretched and underperforming police.


  1. Candide III says:

    “On the one hand are statistics like the ones saying crime has increased by an order of magnitude since 1900 or so; on the other are findings like Steven Pinker’s that violence is constantly declining.”

    The obvious answer to this one is that Pinker is full of shit. As for 100 camels, I haven’t read Friedman’s book or the various people’s reviews of it yet, but haven’t they heard of blood feuds? A lot of the fine-for-murder and collect-all-elders-in-a-tent customs developed to curb (and if possible prevent) blood feuds, which can get ugly and out of hand very fast and persist for centuries. The threat of blood feuds (confirmed by experience) is great at deterring violence, almost as good I suppose as is indiscriminate mob violence at suppressing minority militancy. I doubt SSC and his readers would like to live under a regime relying on such threats.

  2. Graham says:

    Earlier posts taught me a few things I hadn’t known about 18th century English/British legal practices, but all in all I don’t think they can be described as having “flailed around punishment-less” at any point. If all the previously described checks and balances, formal and informal, failed, they could always just hang you. They were certainly hanging people at a rate that was later considered prodigious, even by systems that in their turn we of a softer age might consider harsh.

    The point about the rarity of incarceration in many societies [even quiet advanced polities like the Romans- they probably could have built and run the infrastructure but had by our standards a small-government empire and seemed to abhor the idea of long term imprisonment] is well taken. Long term imprisonment is expensive in resources and effort. Easier to use fines, exile [including permanent], corporal punishment or capital punishment. It gives society options. Even if your society maintains an establishment of public courts and related officers, it might be able to do without regular police or jailers.

  3. Graham says:

    Just as modern societies are willing to let subcultural or contractual “private” justice exist in civil matters [rabbinical and sharia courts, for example, or the Amish], so we have taken some steps in the direction of community justice. In Canada there is much talk of aboriginal justice methods for lesser offenses by members of those communities. And so on.

    Whether or not allowing the relatives of criminals in a place like the US to administer justice against their kin would work is less clear. They’d need to exist in a societal framework in which failure to satisfy others’ definition of justice would bring punishment down on those kinfolk. Some communities in the US might well be both capable and motivated to do this, because they already exist in balance of power situations with rival communities. Or they might just make sure to only prey on members of American society who don’t have the kin-networks or intestinal fortitude to back up their claims.

  4. SOBL1 says:

    Alexander really is a disingenuous twerp. England did not flail around until they discovered Australia. Read the Fatal Shore book for how transportation did come into effect after the American Revolution cut off the colonies as a dumping ground, but the English had a pretty good system: hanging. Hanging was the common punishment for many crimes.

    Exile needs to be brought back and applied liberally. If we wont execute men properly and remove them from the gene pool, exile can serve the same purpose. The negative externalities of the criminal class are piling up.

  5. SOBL1 says:

    First transport ship of convicts to Aus was in 1788. When did the English lose control of the colonies, officially in 1781. So he’ll define flailing around as a 7 yr period? What did they do in those 7 years? Hung a lot of men.

  6. Graham says:

    Well, Friedman’s chapter on this points out the British did have the jails for pre-trial remand, and some folks just ended up stuck in them post-trial, or ended up in the temporary prison hulks moored in the Thames [18c equivalent of a prison camp- also used for POWs]. In the hulks, they’d also end up used as penal labour on river works.

    Friedman suggests that this was not taken up en massed because it was not cost effective, not even at the margins the way the French system was with the galleys and some related facilities.

    That chapter is full of good stuff on the pros and cons of the system, especially for a society that even by period standards was dogmatically small-government. Even the relatively weak abilities of the ancien regime French state were deemed over the top tyrannical by the British of the day. Also, they would have cost money. One thing he does not address too much is enforcement in extreme situations. Lacking professional constables of a police force as we know them, the sheriffs had court officers like bailiffs and wardens and could form a posse in the classic style, in public order situations or to find a fugitive could call out yeomanry [mounted militia] or in real extremis could call on local regular military if within his county. He may have had to ask the county Lieutenant to do that. But the military CO could not normally refuse [one of the bases for the much later Posse Comitatus Act in the US].

    There is limited general literature on the problems military personnel could face if called on to perform law enforcement duties. If the Riot Act had been read, they had wide latitude. If not, they had strictures that seem harsh and arbitrary even by today’s standards. It would be very easy for a soldier to get charged with murder himself even where his actions might seem reasonable under the circumstances.

    One of Allan Mallinson’s recent Hervey novels takes up those latter concerns in passing and runs with them for a while.

  7. Candide:

    Feuding is discussed in at least three of the legal system chapters and feud as a form of law enforcement is the subject of its own chapter.


    Do you have figures on the execution rate in 18th century England? While it’s true that almost all serious crimes were in theory capital, it looks as though only a small fraction of those charged with capital crimes actually ended up being hanged.

    For anyone else interested, note that Scott linked to a draft from about five years ago. The current draft is webbed at:

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