Legal Systems Very Different From Ours and What We Can Learn From Them

[This is my plan for the workshop, as of before it started. By the time it is over it may be very different.]

My workshop this fall will be based on a book I am writing, based on a seminar I have taught for some years at the law school of Santa Clara University. The central idea of the seminar is that the legal systems of different societies face similar problems and solve them, or fail to, in an interesting variety of ways. Looking at a range of such societies and trying to make sense of their legal systems thus provides an interesting window into both problems and solutions, useful both for the general project of understanding law—in particular but not exclusively from an economic point of view—and the narrower project of improving it.

The book itself consists of two sorts of chapters. The data consist of legal systems, so one sort of chapter is an attempt to describe and understand a particular legal system. Examples include the legal systems of modern Gypsies, Imperial China, Classical Athens, the Cheyenne Indians, and many others. The objective is to use the data to understand the problems legal systems face and how they can be dealt with, so the other sort of chapter is centered on a problem, what I think of as a thread.

One example is the problem of incentive to enforce legal rules. If there is no incentive, rules do not get enforced. But an incentive to enforce a rule means that someone benefits by doing so, which means that rules my get enforced in the interest of the enforcer rather than to serve the purpose of the rule—for instance by convicting tort defendants of torts they have not committed, or extorting out of court settlements for behavior that, whether or not illegal, does no harm. This is a problem that, I will argue, is faced by all legal systems, with obvious implications for modern American law in contexts such as class actions and punitive damages. Solutions range from the Athenian approach—fine private prosecutors who fail to convince more than 30% of the jurors to vote for conviction—to the 18^th c. English approach of converting deterrence into a private good, and making it the chief incentive to enforce. Hanging someone for a crime against you that he did not commit and that other potential criminals do not believe he committed will not deter future crimes against you. More generally, this issue links to questions such as the relative virtue of private prosecution, as in modern tort law and many past legal systems, as against public prosecution as in modern criminal law—and, I believe, all of the legal system of Imperial China.

The reading for the workshop will consist mostly of drafts of chapters, most of which are not yet written. For the chapters on legal systems, I will list the sources on which the chapters are based but do not expect most participants to read all of them. For the chapters on threads, I will provide lecture notes from my seminar, mainly for the benefit of participants who want to look at a sketch of the topic in advance of my having a chapter draft available. The web page for the seminar, from the last time I taught it, is at:

http://www.daviddfriedman.com/Academic/Course_Pages/legal_systems_very_different_10/legal_systems_v_diff.htm

Like most academic projects, this is intended to be an exercise in mutual exploitation. What I hope to get from the other participants are commentary and critique of the work I have done, information on legal systems I have not looked at and should, and, perhaps most important, ideas for threads I am missing, legal problems that run through more or less all legal systems and are solved in a variety of ways.

Tentative Outline and Readings

I. The project. Described above; I will probably have a draft of a more detailed explanation available.

Three old articles of mine that got me interested in using historical legal systems to learn more about law:

a. "Efficient Institutions for the Private Enforcement of Law." Journal of Legal Studies, June (1984)

b. "Private Creation and Enforcement of Law -- A Historical Case." Journal of Legal Studies, (March 1979), pp. 399-415.

c. "Making Sense of English Law Enforcement in the Eighteenth Century," The University of Chicago Law School Roundtable (Spring/Summer 1995).

II. The Incentive to Enforce

a. “Classical Athens: The Legal System of a Mad Economist?”

i. (original source The Law in Classical Athens)

ii. (Outline of source at http://www.daviddfriedman.com/Academic/ Course_Pages/legal_systems_very_different_10/grk_law_outline.htm

b. Gypsy Law, Chapter 3

c. “The Incentive to Enforce”

III. Mechanisms for Enforcing Law

a. "From Imperial China to Cyberspace"

b. Law’s Order, chapter 18, The Crime/Tort Puzzle

c. “The puzzles of early Irish Law”

i. original source: Early Irish Law: Preface, Chapters 6-8.

ii. My outline sketching the rest.

d. “Private, public, reputational, …: Mechanisms for law enforcement.”

IV. Subcontracting Law Enforcement

a. “Jewish Law: A Legal System Without a State” [Menachem Elon]

b. “The Legal System of Imperial China”

i. (Original source Law in Imperial China)

c. “Sunni Law”

i. (original source David Forte, Studies in Islamic Law Austin and Winfield, Lanham, 1999.)

V. Filling in the Blanks

a. “Insufficient Fine Print: Filling in the blanks in legal rules”

b. Gaming the system

c. Based on outcome or judgement of the actor?/Bright line rules or standards?

d. Extralegal solutions

[Legal Systems: Chinese. Icelandic]

VI. The Fixed Point Problem

a. “When God Gets it Wrong: Dealing with Fixed Points in a Legal System”

b. “Truth is not determined by majority vote.” Maintaining legal uniformity in a religiously based legal system.

c. But … God as enforcer.

[Legal Systems: Jewish, Sharia, U.S. Constitutional, Plains Indians]

VII. Final Workshop: What Am I Missing?

Reading List

(mostly optional)

Derk Bodde and Clarence Morris, Law in Imperial China, Harvard University Press 1967. Selected cases plus probably a chapter.

Cohen, Edwards and Chang Chen, Essays on China's Legal Tradition, Princeton University Press 1980. (Chapter on contract law in Taiwan)

David Forte, Studies in Islamic Law Austin and Winfield, Lanham, 1999.

David Friedman:

"Efficient Institutions for the Private Enforcement of Law." Journal of Legal Studies, June (1984)Making Sense of English Law Enforcement in the Eighteenth Century, The University of Chicago Law School Roundtable (Spring/Summer 1995): 475-505.

Private Creation and Enforcement of Law: A Historical Case. Journal of Legal Studies, (March 1979), pp. 399-415.

Fergus Kelly, A Guide to Early Irish Law, School of Celtic Studies, Dublin Institute for Advanced Studies.

Douglas M. MacDowell, The Law in Classical Athens, Cornell University Press. Several chapters

Walter O. Weyrauch, Ed., Gypsy Law, University of California Press, selected chapters.