Legal Systems Very Different 。The Idea All societies face about the same problems They solve them in an interesting variety of different ways And they are all grownups So try to make sense of how each legal system worked 。Some of the systems Imperial China:2000 years Periclean Athens:The Legal System of a Mad Economist Saga Period Iceland:Kill someone,his relatives sue you Islamic Law:Separation of law and state Jewish law:When God is the legislator,what if He gets it wrong? 18th Century England:Our legal system without police or public prosecutors Romani:The rest of the human race as environment,not people Amish:Anarchists.Very rule centered anarchists. Pirate ships as democracies In defense of prison gangs
Legal Systems Very Different • The Idea • All societies face about the same problems • They solve them in an interesting variety of different ways • And they are all grownups • So try to make sense of how each legal system worked • Some of the systems • Imperial China: 2000 years • Periclean Athens: The Legal System of a Mad Economist • Saga Period Iceland: Kill someone, his relatives sue you • Islamic Law: Separation of law and state • Jewish law: When God is the legislator, what if He gets it wrong? • 18th Century England: Our legal system without police or public prosecutors • Romani: The rest of the human race as environment, not people • Amish: Anarchists. Very rule centered anarchists. • Pirate ships as democracies • In defense of prison gangs
Imperial China:I As viewed from above,a pure criminal legal system As viewed from below,tort law masquerading as criminal law In addition to important stuff,there are minor matters Loans,land,marriage,and inheritance. I charge you with not paying back the loan The magistrate schedules a court date,comments on the case I then bargain with you,you pay back the loan We humbly ask the magistrate to cancel the court date The magistrate,being a busy man,agrees If we don't reach agreement,the trial is held,the magistrate tells you to pay If you do,he generously cancels the punishment for your offense
Imperial China: I • As viewed from above, a pure criminal legal system • As viewed from below, tort law masquerading as criminal law • In addition to important stuff, there are minor matters • Loans, land, marriage, and inheritance. • I charge you with not paying back the loan • The magistrate schedules a court date, comments on the case • I then bargain with you, you pay back the loan • We humbly ask the magistrate to cancel the court date • The magistrate, being a busy man, agrees • If we don’t reach agreement, the trial is held, the magistrate tells you to pay • If you do, he generously cancels the punishment for your offense
Imperial China:II Law and the extended family All relatives are senior or junior to each other,and within some degree of relationship Any offense by senior or junior,the penalty is scaled down By junior to senior,the penalty is scaled up Accusing a senior relative within two degrees of a crime is a criminal offense ·Even if he is guilty ·What is going on? They are ruling several hundred million people with a tiny bureaucracy Part of the trick is to subcontract the job to other authority structures Of which the extended family is the most important So the rules reinforce that authority structure The ability to report crimes by seniors would give juniors power over them ·So is blocked
Imperial China: II • Law and the extended family • All relatives are senior or junior to each other, and within some degree of relationship • Any offense by senior or junior, the penalty is scaled down • By junior to senior, the penalty is scaled up • Accusing a senior relative within two degrees of a crime is a criminal offense • Even if he is guilty • What is going on? • They are ruling several hundred million people with a tiny bureaucracy • Part of the trick is to subcontract the job to other authority structures • Of which the extended family is the most important • So the rules reinforce that authority structure • The ability to report crimes by seniors would give juniors power over them • So is blocked
Imperial China lll:The Examination System Officials are selected by a ferociously competitive examination system The exam was testing things mostly irrelevant to the job Knowledge of the Confucian classics and historical literature Calligraphy and ability to write poetry and essays in a particular style Why have the smartest people spend a decade or two studying this stuff? A test of IQ and willingness to work hard? ·Indoctrination Is our emphasis on a college education a modern equivalent?
Imperial China III: The Examination System • Officials are selected by a ferociously competitive examination system • The exam was testing things mostly irrelevant to the job • Knowledge of the Confucian classics and historical literature • Calligraphy and ability to write poetry and essays in a particular style • Why have the smartest people spend a decade or two studying this stuff? • A test of IQ and willingness to work hard? • Indoctrination • Is our emphasis on a college education a modern equivalent?
Periclean Athens ·Athenian democracy All officials,except generals,were chosen by lot A government of amateurs The Athenian population Perhaps half were slaves Some more were metics-resident aliens,often for many generations The rest were citizens ·The court system Trial by very large juries Privately prosecuted What was the incentive to prosecute? For the equivalent of criminal law,a successful prosecutor usually got a cut of the fine For the equivalent of a tort prosecution,as in our system the winner collected a damage payment
Periclean Athens • Athenian democracy • All officials, except generals, were chosen by lot • A government of amateurs • The Athenian population • Perhaps half were slaves • Some more were metics—resident aliens, often for many generations • The rest were citizens • The court system • Trial by very large juries • Privately prosecuted • What was the incentive to prosecute? • For the equivalent of criminal law, a successful prosecutor usually got a cut of the fine • For the equivalent of a tort prosecution, as in our system the winner collected a damage payment
Periclean Athens:Solving Problems How do you prevent abusive prosecution for the fine or damage payment? Criminal:If less than 20%of the jury voted for conviction,prosecutor was fined Civil:If the defendant won,the prosecutor owed him damages-1/6th the claim The penalty for theft was twice the value of the goods stolen An obvious opportunity to plant goods while searching You could search someone's house for your stolen goods ·But had to do it naked We have a similar issue when cops search for drugs... Production of public goods If you were one of the richest Athenians,every other year you had to produce one Two ways of getting out of it Show that you are doing one this year or did last year Show that there is someone not doing one this year or last who is richer than you are Without IRS or accountants,how do I prove you are richer than I am? I offer to exchange everything I own for everything you own
Periclean Athens: Solving Problems • How do you prevent abusive prosecution for the fine or damage payment? • Criminal: If less than 20% of the jury voted for conviction, prosecutor was fined • Civil: If the defendant won, the prosecutor owed him damages–1/6th the claim • The penalty for theft was twice the value of the goods stolen • An obvious opportunity to plant goods while searching • You could search someone’s house for your stolen goods • But had to do it naked • We have a similar issue when cops search for drugs. … • Production of public goods • If you were one of the richest Athenians, every other year you had to produce one • Two ways of getting out of it • Show that you are doing one this year or did last year • Show that there is someone not doing one this year or last who is richer than you are • Without IRS or accountants, how do I prove you are richer than I am? • I offer to exchange everything I own for everything you own
Saga Period Iceland In the 10th century,Harald Haarfagr unifies Norway under his rule Lots of people who don't like it emigrate to Iceland,recently discovered Set up a legal system based on the Norwegian,with one thing left out ·The king There was a legislature,a court system,but no executive arm of government All offenses were treated as torts,privately prosecuted for a damage payment Verdicts were privately enforced The sagas are histories and historical novels Written more than seven hundred years ago From a population of about fifty thousand at the far edge of the world Ten or more of which are currently in print in English translation
Saga Period Iceland • In the 10th century, Harald Haarfagr unifies Norway under his rule • Lots of people who don’t like it emigrate to Iceland, recently discovered • Set up a legal system based on the Norwegian, with one thing left out • The king • There was a legislature, a court system, but no executive arm of government • All offenses were treated as torts, privately prosecuted for a damage payment • Verdicts were privately enforced • The sagas are histories and historical novels • Written more than seven hundred years ago • From a population of about fifty thousand at the far edge of the world • Ten or more of which are currently in print in English translation
Islamic Law Separation of law and state The law is deduced by scholars from the Koran and Hadith Like our system,with court precedents replaced by law review articles Hadith are accounts of things said or done by Mohammed and his companions Each comes with an isnad,a chain of transmitters The strength of a hadith depends on the reputation of the transmitters And the number of separate chains supporting the same hadith. In Sunni Islam there are four schools of law,mutually orthodox ·Mufti and Kadi A mufti is a jurisconsult,someone who gives advisory opinions on the law(fatwas) A Kadi is a judge,appointed by the ruler,who tries an actual case
Islamic Law • Separation of law and state • The law is deduced by scholars from the Koran and Hadith • Like our system, with court precedents replaced by law review articles • Hadith are accounts of things said or done by Mohammed and his companions • Each comes with an isnad, a chain of transmitters • The strength of a hadith depends on the reputation of the transmitters • And the number of separate chains supporting the same hadith. • In Sunni Islam there are four schools of law, mutually orthodox • Mufti and Kadi • A mufti is a jurisconsult, someone who gives advisory opinions on the law (fatwas) • A Kadi is a judge, appointed by the ruler, who tries an actual case
Hadd Law Legal rules with fixed penalty based mostly on the Koran Five offenses.All require two eye witnesses,except that... For Zina,intercourse with someone neither your spouse nor concubine Proof requires four eyewitnesses to the same act of intercourse The penalty for those who have previously had licit intercourse is stoning to death False accusation of Zina ·Theft Penalty is having your right hand cut off But there are a lot of conditions that have to be met for the hadd offense of theft ·Drinking wine Highway robbery(includes breaking into a house with people put in fear)
Hadd Law • Legal rules with fixed penalty based mostly on the Koran • Five offenses. All require two eye witnesses, except that … • For Zina, intercourse with someone neither your spouse nor concubine • Proof requires four eyewitnesses to the same act of intercourse • The penalty for those who have previously had licit intercourse is stoning to death • False accusation of Zina • Theft • Penalty is having your right hand cut off • But there are a lot of conditions that have to be met for the hadd offense of theft • Drinking wine • Highway robbery (includes breaking into a house with people put in fear)
Other Parts of the Law 。Tazir Penalty set by the judge at or below the hadd penalty Weaker requirements of evidence Jinayat:Killing or injuring someone Treated as an offense against the victim or his heirs For first degree murder Heirs can insist on retaliation Or accept diya,blood money payment For lesser versions of killing,only diya In addition,killer must free a believing slave or fast for two months Other non-figh courts There are a variety of other courts set up by the ruler Theoretically in the spirit of,but not bound by,koranic law
Other Parts of the Law • Tazir • Penalty set by the judge at or below the hadd penalty • Weaker requirements of evidence • Jinayat: Killing or injuring someone • Treated as an offense against the victim or his heirs • For first degree murder • Heirs can insist on retaliation • Or accept diya, blood money payment • For lesser versions of killing, only diya • In addition, killer must free a believing slave or fast for two months • Other non-fiqh courts • There are a variety of other courts set up by the ruler • Theoretically in the spirit of, but not bound by, koranic law
