Law Prior to the State

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* Article: Polycentric Law. by Tom W. Bell. Humane Studies Review, Volume 7, Number 1 Winter 1991/92



Tom Bell:

"Friedrich A. Hayek finds the origins of law in the process through which complex social orders naturally evolve by a manner akin to natural selection. Not all types of behavior support social life, he explains. Some -- like violence, theft, and deceit -- undercut it. " Society can thus exist only if by a process of selection rules have evolved which lead individuals to behave in a manner which makes social life possible." (F. A. Hayek, Law, Legislation, and Liberty, Vol. 1 [Chicago: University of Chicago Press, 1973], p. 44) The development of these rules predates courts, written law, and even the concept of law itself: " At least in primitive human society, scarcely less than in animal societies, the structure of social life is determined by rules of conduct which manifest themselves only by being in fact observed." (Hayek, 1973, p. 44) Because such customary laws exist prior to state laws, they have attracted the attention of those who research polycentric legal systems.

Bruce Benson examines the customary legal system of the Kapauku Papuans of West New Guinea in his recent book on purely private law. (Bruce L. Benson, The Enterprise of Law, [San Francisco: Pacific Research Institute, 1990], pp. 15-21) This " primitive" legal system exhibited some remarkably sophisticated qualities. It emphasized individualism, physical freedom, and private property rights; sorted out fantastically complicated jurisdictional conflicts; and provided mechanisms for " legislating" changes to customary law. (For detailed information about the Kapauku legal system turn to Benson's main source: Leopold Popisil, Anthropology of Law: A Comparative Theory [New York: Harper and Row, 1971].) In a separate work, Benson points out similar features in the legal systems of the Yuroks of Northern California and the Ifuago of Northern Luzon. (Bruce L. Benson, " Enforcement of Property Rights in Primitive Societies: Law Without Government," in Journal Of Libertarian Studies, Vol. 9, Winter 1989, pp. 1-26. For more detailed accounts, see Benson's main sources: Walter Goldschmidt, " Ethics and The Structure of Society: An Ethnological Contribution to the Sociology of Knowledge," in American Anthropologist, Vol. 53, October-December 1951, pp. 506-524; E. Adamson Hoebel, The Law of Primitive Man [Cambridge, MA: Harvard University Press, 1954]; R. F. Barton, " Procedure Among the Ifugao," in Paul Buchanan, ed., Law and Warfare [Garden City, NY: The National History Press, 1967]. See also Benson's article, " The Lost Victim and Other Failures of the Public Law Experiment," in Harvard Journal of Law and Public Policy ,Vol. 9, Spring 1986, pp. 399-427.)

David Friedman adopts medieval Iceland as his favorite example of a polycentric legal system. He writes that it " . . . might almost have been invented by a mad economist to test the lengths to which market systems could supplant government in its most fundamental functions." Friedman summarizes and interprets research on Icelandic law in the piece quoted above and, more briefly, in a later, larger work. (David D. Friedman, " Private Creation and Enforcement of Law: A Historical Case," in Journal of Legal Studies, Vol. 8, March 1979, p. 400; The Machinery Of Freedom, 2nd ed. [La Salle, IL: Open Court, 1989]) Several recent or forthcoming works give outstanding introductions to the legal system that flourished in Iceland during the " free state period," all highlighting the system's effectiveness and flexibility. These sources also describe the relations between Iceland's legal system and the other institutions of this essentially voluntaristic, stateless society. Note that, contrary to popular assumptions, the system did not depend upon a kinship or territorial/tribal social structure. (William I. Miller, Bloodtaking and Peacemaking [Chicago: University of Chicago Press, 1990]; Birgir T. Solvason, Ordered Anarchy and Rent-Seeking: The Old Icelandic Commonwealth, 930-1262 [Fairfax, VA: George Mason University Department of Economics Doctoral Dissertation, forthcoming]; Jesse L. Byock, Medieval Iceland [Berkeley, CA: University of California Press, 1988])

Celtic Ireland's polycentric legal system has also attracted a great deal of attention. This system flourished for a longer time than any other of which we have detailed knowledge, and has left a truly massive amount of records. (For an introduction to this see Joseph R. Peden " Property Rights in Celtic Irish Law," in Journal Of Libertarian Studies, Vol. 1, 1977, pp. 81-95. A more detailed source is the work of D. A. Binchy, ed., Studies in Early Irish Law [Dublin: Irish University Press, 1936] . See also his " Ancient Irish Law," in The Irish Jurist, Vol. 1, 1966, pp. 84-92.)

Diligent researchers will find still other historical examples demonstrating the viability of privately produced law. See for instance Harold Berman's discussion of the European folk law and mercantile law, or E. Adamson Hoebel's description of Comanche law. (Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition [Cambridge, MA: Harvard University Press, 1983]; E. Adamson Hoebel, " Law Ways of the Comanche Indians," in P. Buchanan [1967]) Berman points out that in Western legal history, pluralism is the rule and monopoly the exception. See also the accounts of the development of a customary legal system in the mining camps of the old West in Terry L. Anderson and P. J. Hill, " An American Experiment in Anarcho-Capitalism: The Not So Wild, Wild West," in Journal of Libertarian Studies (Vol. 3, 1979, pp. 9-29). Still more customary legal systems wait to be researched. (For an anthropological study of systems of mutual responsibility, see Sally Fox Moore, Law as Process: An Anthropological Approach [London: Routledge & Kegan Paul, 1978].) What do these many historical examples of polycentric law tell us?

After a wide review of the field, Benson concludes that each customary legal system has six basic features:

1) a predominant concern for individual rights and private property;

2) laws enforced by victims backed by reciprocal agreements;

3) standard adjudicative procedures established to avoid violence;

4) offenses treated as torts punishable by economic restitution;

5) strong incentives for the guilty to yield to prescribed punishment due to the threat of social ostracism; and

6) legal change via an evolutionary process of developing customs and norms. (Benson, 1990, p. 21)

Anglo-Saxon Customary Law

The Anglo-Saxon legal system gives us a particularly good example of a legal system embodying the six features Benson finds throughout customary law. A system of surety, known as borh, provided the foundation of Anglo-Saxon law. Under the borh system a set of ten to twelve individuals, defined at first by kinship but later by contractual agreement, would form a group to pledge surety for the good behavior of its members. The group would back up this pledge by paying the fines of its members if they were found guilty of violating customary law. A surety group thus had strong financial incentives to police its members and exclude those who persistently engaged in criminal behavior. Exclusion served as a powerful sanction: " Every person either had sureties and pledge associates or one would not be able to function beyond one's own land, as no one would deal with one who had no bond or who could not get anyone to pledge their surety to them." (Leonard P. Liggio, " The Transportation of Criminals: A Brief Political-Economic History," in Randy E. Barnett and John Hagel III, eds., Assessing The Criminal: Restitution, Retribution and the Legal Process [Cambridge, MA: Ballinger Publishing Co., 1977])

Such reciprocal voluntary agreements have a certain timeless appeal. Consider the modern parallels: like insurance agencies, the surety groups helped members to spread risks by pooling assets; like credit bureaus, they vouched for the good standing of their own members and denied access to outsiders who had demonstrated their untrustworthiness; like credit card companies, they stood behind the claims and acts of their members. Whether ancient or modern, these common solutions to common problems all arose out of the free and spontaneous cooperation of self-interested agents. (For in depth treatment of the borh system and its replacement after 1066 by the related but distinct and non-voluntary system called frankpledge, see William A. Morris, The Frankpledge System [New York: Longmans, Green & Co, 1910], and J. E. A. Jolliffe, The Constitutional History of Medieval England [New York: W.W. Norton & Co, 1961].)

The Anglo-Saxon courts, called moots, were public assemblies of common men and neighbors. The moots did not expend their efforts on creating or codifying the law; they left that to custom and to the essentially declaratory law codes of kings. The outcome of a dispute turned entirely on the facts of the case, which were usually established through ritual oath-giving. The disputants first swore to their accusations and denials. Each party then called on oath helpers (including members of their surety groups) to back up these claims with oaths of their own. For the court to accept any one of these oaths, it would have to be given flawlessly -- though the poetic form of the oaths made it easier to meet this requirement. Deadlocks were often settled by ordeals of fire or water. Berman points out that the ambiguity of oath taking and ordeals left room for flexible judgements, while the fear of supernatural retribution and the vital importance of a good reputation made perjury a matter that no one would take lightly. Consequently, these procedures were not simply mystical or " crazy." Similar points apply to most studies of customary law.

Anglo-Saxon law had no category for crimes against the state or against society -- it recognized only crimes against individuals. As in other customary legal systems, the moots typically demanded that criminals pay restitution or composition to their victims -- or else face the hazards of outlawry and blood-feud. Murderers owed wergeld (literally, " man-money" ) to their victims' kin. Lesser criminals owed their victims lesser fines, elaborately graded according to the victim's status and the importance of the limb, hand, digit, fingertip, etc., that had been lost. In recognition of the importance of private property, heavier penalties were also imposed for crimes occurring in or about the home, the most serious being hamesucken, i.e. smashing up someone's house. This emphasis on the home reflected Anglo-Saxon law's concern with protecting property rights, including the notion of a protected private space. The law codes of early medieval Europe consisted largely of lists of offenses and the corresponding schedules of payments. In issuing these, Kings were not legislating in the modern sense: they were rather codifying and declaring already existing custom and practice. Like the surety groups, the moot courts depended on voluntary cooperation.

Berman writes that

- Jurisdiction in most types of cases depended on the consent of the parties. Even if they consented to appear, they might not remain throughout, and even if they remained, the moot generally could not compel them to submit to its decision. Thus the procedure of the moot had to assume, and to help create, a sufficient degree of trust between the parties to permit the system to operate...(Berman, 1983, p. 56)

This Anglo-Saxon customary legal system protected the liberties of the English long and well. Royal law rose to domination only after a bitter struggle, and even then the lasting imprint of customary law helped England to remain a relatively free society.

The Rise of Royal Law

In many societies, state law has advanced rapidly on the heels of military conquest. It entered England, however, with almost imperceptible subtlety. Two factors prepared the stage. First, the constant threat of foreign invaders, particularly the Danes, had concentrated power in the hands of England's defenders. Second, the influence of Christianity imbued the throne with a godly quality, allowing kings to claim a divine mandate. Onto this stage strode Alfred, king of Wessex, during the last quarter of the ninth century.

Prior to Alfred, men served their kings voluntarily. A king had to offer battle gear, food, and plunder to get others to follow him into battle. Under Alfred and his successors this developed into the fyrd, a levy of men drawn from a locality to form a war host. More importantly, he volunteered to champion the cause of the weak -- for a fee. Weak victims sometimes found it difficult to convince their much stronger offenders to appear before the court. Kings balanced the scales by backing the claims of such plaintiffs. This forced brazen defendants to face the court, where they faced the usual fines plus a surcharge that went to the king as payment for his services.

This surcharge, called wite, made enforcing the law a profitable business. King Alfred, strengthened by threat of invasion and emboldened by his holy title, assumed the duty of preventing all fighting within his kingdom. He did this by extending the special jurisdiction which the king had always exercised over his own household to cover the old Roman highways and eventually the entire kingdom. In effect, the boundaries of the royal household expanded to encompass the entire realm, and the protection of the peace and safety of private households was subsumed into that of the king. Alfred declared that anyone found guilty of assault owed him wite for violating the king's peace. He lacked the ability to back up this claim, however, and it went largely ignored. But he had set a trend in motion. Over the next few centuries royal law would grow stronger, with later monarchs such as Athelstan and Knut creating the skeleton of a royal legal system. This reflected the reality that almost half of England under the later Saxon kings was conquered territory (the Danelaw, the Five Boroughs, and York) which had been overrun by the Vikings after the great invasion of 853 and then regained by Alfred's successors as kings of Wessex. Faced with the problem of governing territory where the old Saxon institutions had disappeared, they were driven to create a governmental and legal system which was, for the time, unusually uniform and centralized (e.g. in its use of a standardized unit of law and administration, the hundred ). This centralization received a major boost with the Norman conquest of 1066, when an alien minority of rulers found the system they inherited highly congenial. Eventually royal law consumed virtually all of England's legal order, as it did in countries throughout Europe. But first royal law would have to contend with some stiff competition.

From Polycentric Law to State Law

A legal revolution swept through Europe in the years between 1050 and 1200. While the power of the Church rose to rival that of kings, the law of the church -- inspired by the newly rediscovered Justinian codification of Roman law -- rose to new levels of sophistication. The key events in this process were the Gregorian reforms and the Investiture Crisis of the twelfth century. The actual issue, whether kings could invest bishops with the symbols of their office and so " make bishops," may seem obscure to us, but it had profound effects. These events transformed the church into an independent institution, distinct from monarchies and staffed by a clergy who formed an independent order in society, marked off by their vow of celibacy. (In marked contrast, the church in Byzantium remained the creature of the emperor and never gained independence.) Following its achievement of independence, the church created the great system of canon law, with commentators from Gratian onwards turning a haphazard collection of edicts into a massive, sophisticated intellectual system. A major impetus to this process was provided by the previously mentioned rediscovery of Roman law in the form of Justinian codes, which were a compilation of the decisions of Roman jurists. The Church's new-found independence in turn helped to develop the state, as kings reformed royal law to give it the order and strength of ecclesiastical law.

Other legal systems entered the fray. Thousands of cities and towns sprang up, leading to new centers of power and the development of urban law. The support of the church and a labor shortage brought an element of reciprocity to the relations between peasants and lords, triggering the emergence of manorial law. Vassals likewise won standing in the separate jurisdiction of feudal law. And the rise of a populous, mobile merchant class promoted the evolution of another form of privately produced law, the law merchant. (See Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law [Littleton, CO: Fred B. Rothman & Co., 1983]. For studies of the way this pluralistic system worked see these excellent collections: John Bossy, ed., Disputes and Settlements: Law and Human Relations in the West [Cambridge: Cambridge University Press, 1983]; Wendy Davies and Paul Touraine, eds., The Settlement of Disputes in Early Medieval Europe [Cambridge: Cambridge University Press, 1986].)

Berman provides the single best source for sorting out this legal tangle in his magisterial Law and Revolution. He there explains how competition between jurisdictions helped to protect individual liberty: " A serf might run to the town court for protection against his master. A vassal might run to the king's court for protection against his lord. A cleric might run to the ecclesiastical court for protection against the king." (Berman, 1983, p.10) The same person, in different capacities (merchant, cleric, vassal, townsman, etc.), enjoyed a significant degree of choice among legal systems, forcing them to compete. This competition for " customers" and the interaction among rivalrous legal systems resulted in many of the legal innovations that we take for granted today.

For the most part, royal law won this competition among jurisdictions. It had two important advantages over its rivals. The power to tax allowed it to subsidize its legal services. Royal courts absorbed the local functions of the law merchant, for instance, by adopting its precedents and offering to enforce them at bargain rates. Royal law also wielded far greater coercive power than competing legal systems, which depended on reciprocity and trust for their operation. The overarching or paramount power of monarchs enabled them to restrict competition to their jurisdiction, with force the ultimate support for royal action. Thus in England Edward I was able to restrict the growth of private jurisdictions through the Quo Warranto procedure created by the Statute of Gloucester in 1278. (This growth, however, was not restricted entirely: see Robert C. Palmer, The County Courts of Medieval England [Princeton, NJ: Princeton University Press, 1982].) So-called " weak" monarchs, i.e. those who lacked the physical force to be able to aggrandize their power in this way, were often those whose reigns saw greater prosperity and, not coincidentally, growth of private legal systems. (For an example of this see the account of late medieval Scotland, supposedly plagued by " weak kings," given by Jenny Wormald in " Bloodfeud, Kindred and Government in Early Modern Scotland," in Past and Present, No. 87, 1980, pp. 54-97, and in Lords and Men in Scotland: Bonds of Manrent 1442-1603 [Edinburgh: John Donald, 1985].)

Henry II stands out as the central figure in the history of English royal law. Through measures such as the Assize of Clarendon he established a permanent court of professional judges, the use of inquisitional juries, regular circuits for itinerant judges, and a system of standardized forms of action via writs. The system of itinerant justices, in particular, reveals Henry's motivations; these justices also served as tax collectors.

The legal conquests of King Henry II and kings throughout high-medieval Europe established a reign of state law that has lasted to this day. Although grafted to the good stock of customary law, state law grew in strange, twisted ways. This transformation reflected the royalists' original motives for establishing a monopoly in law and the secret key to their success: restructuring property rights. Customary legal systems viewed crimes as violations of individuals' property rights, including rights to " personal peace" ; hence the emphasis on restitution for victims, with the accompanying incentive for individuals to enforce the law. The new royal law classified murder, rape, theft, and so on as crimes against the state, rather than as crimes against individuals. Fines went to the king. Victims got only the satisfaction of seeing criminals suffer corporal punishment. Dissatisfied individuals continued to seek restitution out of court, so state officials forbade them to take justice into their own hands. This sharply reduced victims' incentives to pursue criminals, and statutes demanding the victims' cooperation had little effect. The state therefore developed the police powers necessary to enforce its laws on criminals and victims alike. (For an overview of this transformation see Geoffrey Parker and Bruce Lenman, " The Judicial Revolution," in N. G. Parker, B. P. Lenman and Victor A. C. Gatrell, eds., Crime and the Law: The Social History of Crime In Europe Since 1500 [London: Europa Press, 1980]. For an account of the U.S. legal system's poor treatment of victims see William F. McDonald, " The Role of the Victim in America," in Barnett and Hagel 1977, pp. 295-307.)

The change from customary to state law did not happen suddenly and finally, nor did it flow in a smooth, one-way process. The change took a very long time, its two main active periods coming during the eleventh and sixteenth to seventeenth centuries. The latter period saw the appearance of centralizing, absolutist monarchies and the so-called " reception" of Roman law, with customary systems replaced by uniform ones derived from Roman principles. The most notable example of this was the Carolina, a system of romanized criminal law imposed in Germany by Charles V. By contrast, the later Middle Ages had seen a recession of royal power, and the revival of customary law systems in many places." (