Weigh and deliver

Tuesday, December 27th, 2016

Long before the invention of coins, the earliest written legal codes, like the Sumerian “Code” of Ur-Nammu, required defendants adjudged guilty to “weigh and deliver” the specified amount of silver:

Prior to the rise of efficient competitive markets, prices for goods were often specified by custom or law rather than negotiated. This served to conserve transaction costs in a high transaction cost culture where exchange relationships resembled bilateral monopolies more closely than they resembled spot markets. Bargaining costs were high, and indeed bargaining failure often resulted in violence and destruction rather than merely in no deal. This made focal points of negotiation, such as customary prices and customary compensation amounts for specific injuries, a quite valuable and ubiquitous part of most Neolithic and earlier cultures. When specified by law, these rules setting prices were often intermingled with laws specifying legal penalties and used the same set of units: in the Mesopotamian and Anatolian law codes prior to coinage, most commonly weights of silver and volumes of barley.

One can also think blood-money-type fixed damages (compensation) and fines as customary prices for injuries. As with customary prices for goods, customary prices for injuries conserved on the transaction costs of bilateral monopoly negotiations, in this case negotiations to settle legal disputes. Today this is solved, to the extent it is, by each side predicting what damages or punishments they expect a court to assess, and negotiating accordingly.

As kings and chiefs gained power, fines paid to them for criminal acts replaced compensation to victims. In some cases a separate set of laws (for example tort laws) arose alongside the criminal law, or was evolved from the previous compensation culture, maintaining some compensation for victims. Subsequently law usually evolved away from monetary compensation and towards punishments for deterrence. A chief concern of criminal law became estimation of deterrence value. The king had incentives to perform punishments both as a public good and a public show. To allow themselves and their public to assess the deterrence value of punishments, there were two major strategies:

“Eye for an eye”-type laws, which focus on comparing the punishment to the crime’s injury (often similar to the injury to maximize perceived fairness, but sometimes also more severe than the injury for extra deterrence value). In some of the non-silver compensation rules in the Mesopotamian and Hittite law codes described above, barley, slaves, or other goods are substituted for silver because in order to correspond to an injury involving barley, slaves, etc.: like for like.

Measured punishments, which, like monetary compensation for injury, allow the severity of different crimes to be compared and ranked, for example whipping (number of lashes) and prison sentences (length of time), our dominant modern form of criminal punishment.

As suggested above (and for reasons to be explicated in future posts), compensation according to a standard amount of a standard wealth good (pre-coinage money), the outcome of coercive negotiations between clans, was very likely the dominant form of measured punishment during the vast majority of the time and in the vast majority of cultures from the dawn of our species to today.

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