Feud as Law Enforcement

Standard Modern Model of Law Law made by Legislature and/or judges Detection and prosecution of offenses – Public for criminal law—police and prosecutor – Private for tort law Disputes resolved in government courts Verdict enforced by government

Feud Law: A Different Model Law enforcement private and decentralized Historically common Arguably most legal systems started that way And in some form it still exists “Feud” has nothing to do with “feudal” – The words sound the same but are unrelated – In meaning and origin

The Logic of Feud Law If you wrong me I threaten to harm you Unless you compensate me

For it to Work It Needs Some mechanism so that right makes might Commitment mechanism – To make threat believable even when costly – And even after the victim is dead Mechanism to protect those too weak to believably threaten retaliation Some way of ending feuds

Mechanisms for Might Makes Right Saga period Iceland: Legislature, laws, courts Rominchal gypsies: informal norms, friends support you if you are in the right, not otherwise Somali: Traditional law, ad hoc court mechanisms All of these solve two problems – Prevent the use of threats for deliberate extortion – And prevent individuals from acting as biased judges in their own case

Commitment mechanisms Pre-human: Territorial behavior in birds and fish Human internalized commitment: Vengefulness Human external commitment: – Maintain reputation to deter rights violations – Being a wimp is shameful, loses status – Success gains status, which is why there are volunteer enforcers in Icelandic, Commanche Enforcing your rights after you are dead – Kin inherit your claim, enforce it, or … – Pre-arranged group does it: “diya-paying group”

Protecting The Weak Icelandic Solution – Tort claims are marketable, so … – If I don’t have the resources to enforce my claim – I transfer it to someone else who does Somali Solution – Group formed by a mix of kinship and contract – Whose members share the right to collect damages – And the obligation to enforce claims

Termination of Feud What happens if – I think you wronged me, you disagree – You refuse to pay damages, I harm you – You view that as my wronging you, so … – Threaten to retaliate if I don’t compensate you – I disagree, refuse … – Endless feud? Icelandic solution Somali solution Finnish Gypsy solution

Icelandic – If my retaliation injures someone not outlawed – I owe damages to him or his heirs – So if I ignore court verdict, it gets expensive – Or coalition against me expands – Most feuds terminated quickly by court verdict or arbitration Somali: – Ad-hoc courts, local enforcement of verdicts – When too many people were being killed, both sides agreed to raise wergeld Kaale (Finnish Gypsy): – Feuding families avoid each other – until everyone has forgotten what they were feuding over

Underlies Many Legal Systems Anglo-American common law came from – Anglo-Saxon law, which was essentially – Icelandic system plus a king Rabbinic law has evidence of fossilized feud – The role of the “Avenger of Blood” – Evidence of self-enforcement of claims Islamic law (fiqh) includes jinayet – Law for killing or injuring – A claim by the victim or his kin for – Damages or retaliation Roman law: – 12 tables appear to refer to self help remedies – Early republic, plaintiff must drag defendant to court – Verdict gives him a right to seize, sell or execute, defendant

Chinese Law?

Modern Forms of Feud Law Informal under the shadow of state law – Rominchal – Sicilian Mafia – … Within the state legal system – Suing someone who is innocent is a wrong – And a suit in response is retaliation – In particular …

Patent Infringement Litigation Apple wants to sue Samsung – Even if Samsung didn’t violate patents, because … – The court might make a mistake in Apple’s favor – And fewer people will buy Samsung’s phones while the suit is in process. But … Samsung could sue Apple too – Which is a reason for Apple not to sue – If they don’t have a strong case So the court system is why right makes might

The Patent Troll Problem Suppose I own lots of patents – Not because I use them, but … – Because they let me sue infringers – Or people I claim are infringers I threaten to sue you. You are innocent but … – The court might make a mistake, and … – Litigation is expensive – So you settle instead – Successful extortion And it works because … – I don’t practice any patents at all – So am immune to threats of retaliation

A Solution from Periclean Athens In the Athenian legal system of 2500 years ago – For at least some tort cases – The losing plaintiff owed the prevailing defendant – 1/6 th of the amount he had claimed as damages Think of it as the damage payment for suing an innocent party – Thus imposing a risk on him of losing – Due to court error

For more see My web page: And the draft of my current book project urse_Pages/Legal_Systems_Very_Different_13/B ook_Draft/LegalSystemsDraft.html