BOOK NOTE: “Legal Systems Very Different from Ours” by David Friedman

Tonight’s momentous “judicial review” debate at 8pm at Muchmore’s (easily reached via the L subway – just three blocks east of the very first stop into Brooklyn) also kicks off the most important eight days of this blog’s “Month of Law,” as I review a few books that raise interesting legal questions, climaxing with Judge Andrew Napolitano’s Theodore and Woodrow and stopping along the way for a look at my (alternately law-flouting and law-enforcing) pirate ancestor “Roaring Dan” Seavey. 

(Today also marks the twentieth anniversary of my favorite Simpsons episode, the Conan O’Brien-written “Marge and the Monorail,” which itself raises all sorts of procedural and political questions and may have been slightly influenced by the decrepit factory flashback in Atlas Shrugged.)

I’m a bit torn about starting off with the online draft of the book-in-progress Legal Systems Very Different from Ours by David Friedman (who spoke at Lolita Bar a couple times back when I hosted events there).  In a trade-off calculation after his own heart, I find myself wondering if the good done by drawing attention to his ideas will be outweighed by the harm to his eventual book sales from people reading this version for free online.  Ultimately, though, it’s too interesting for me to resist commenting until the print version appears. 

Conventional wisdom is that a utilitarian anarcho-capitalist is the last person you’d deploy to understand extremely traditional, pre-modern folkways, but Friedman vindicates both utilitarian analysis and the wisdom of (some) tradition by showing the problem-solving logic behind all sorts of old rules – which in no way prevents him from stopping along the way to highlight the bizarre.

•The chapter on gypsy law, for instance, notes that one gypsy faction has taken the idea of concealing sexual and reproductive matters in order to maintain purity so far that they do not even acknowledge pregnancy or marriage, and women sneak away to other neighborhoods to give birth, later returning unobtrusively to add the resulting child to the communally-raised new generation. 

It’s one of many gypsy habits that may have arisen as a means of concealing their numbers and their family ties from the hostile states (and more official law codes) under which they have often lived.  Another is treating people’s names as freely exchangeable, making it very difficult for the authorities to track individuals (each member of a given group may use the same name when going out into the world to do business, for instance, sort of the way different individuals have assumed the name “Batman” over the years). 

As Friedman writes, “It is hard to control people if you cannot count them, and it is hard to count people when there is no one to one correspondence between person and name.”  (Here’s a timely reminder, pointed out by Tom Palmer and Lucy Steigerwald, that the Roma have plenty of reason to want to hide.)

•Closer to home, you gotta love the fact that the Amish method of shunning is called Meidung.  I may start telling troublesome people that I will inflict “Meidung” on them, just to see how they interpret that (Amish-style or monkey-style, so to speak). 

•Jewish law is the largest and best-documented body of

traditional law we have, and plenty of it makes sense, but it’s amusing to see the weird corners they’ve painted themselves into over the millennia in some cases, usually by trying simultaneously to be logically consistent and tolerant enough to avoid the consequences of excessive literalism about religious rules. 

For instance, the rule about stoning disobedient children to death may never have been enforced, since elders have for centuries been thinking up rather sophistical reasons to restrict the definition of “children” in such cases, plainly motivated by a desire to avoid having to kill.

Arguably a much weirder wrinkle in medieval Jewish law was that technically a terminally ill person could commit murder with impunity, since (A) no one could be punished for bearing false witness against someone who was going to die soon anyway and (B) as a result, no witnesses could be considered reliable if speaking in proceedings against the dying person. 

•The most important and timely lesson to be derived from reading about Sharia is probably that Islamic law could in theory function as just another embedded legal system within a nation’s formal/secular one, as so many other faith’s rules do.  The tendency among some conservatives in the U.S. to see it as a threat may be hasty. 

Ironically, Friedman notes that there are significant parallels between the way law codes operate when based on sacred scriptures that must be interpreted by priests and the way U.S. constitutional law operates, since we have a much higher threshold for deviating from our founding documents than most nations do (and are better off for it). 

•From the three centuries of de facto anarchism in medieval Iceland (one of Friedman’s favorite topics), he here notes a few rules that make anarcho-capitalism look ever more practical for people in any time or place.  Time and again, you think you’ve discovered a problem with anarcho-capitalism that can’t even be solved in theory, only to discover it’s already been resolved in anarcho-capitalist practice. 

For instance, what is a poor person who has a great claim against a rich defendant – but no resources at all with which to hire a lawyer – to do (if for some reason he can’t find someone to take the case on a contingency basis or if it’s the Middle Ages and that practice doesn’t exist in Iceland)?  In anarchic medieval Iceland, he could simply sell his case – in effect, his claim on the defendant – to someone else (who is willing to gamble by bringing the case and getting whatever money results from the resolution of the case).

Friedman also reveals, among other wonders, that most law enforcement was private in England in the eighteenth century, that the parts of Somalia without government are the peaceful parts whereas the parts with centralized government constantly fight, and that law in Athens resembled the work of a “mad economist.”

We will yet learn to draw lessons from tradition, liberal respect for procedure, and anarchist spontaneity all at the same time, mark my words.  This book will be another welcome step in that direction. 

P.S. In a reminder, though, that there’s a very thin line between a pugnaciously-traditionalistic fellow like Charlie Daniels and (the hilarious) Early Cuyler of Squidbillies, here’s an alarming song by the former about punching his way out of a gay bar (Master Shake dealt with issues of sexual orientation in a more sensitive fashion in this memorable exchange from Aqua Teen Hunger Force).

The DIONYSIUM tonight will, of course, be a model of civility and legal insight.