Eli Dourado

The “brutality” of private law

Today on Twitter, I got involved in a discussion of private law with Karl Smith (or whichever of the Modeled Behavior bloggers controls @modeledbehavior) [Update: It was Adam Ozimek]. My interlocutor was perfectly willing to accept that a system effectively of private law was suitable for non-violent offenses. Violators would pay restitution equal to damages times the reciprocal of the probability of detection (for optimal deterrence) and any enforcement costs such as court fees, the costs of investigation, and so on. Tort claims should be tradable so that the poor victims would get justice as well; they could sell their claims to wealthy entrepreneurs who would finance the up-front costs of investigating and litigating the tort.

However, I faced resistance when I said I favored such a system for violent offenses as well. Karl (or whoever) Adam said it would lead to mob justice in cases where the amount of restitution was too large to be repaid. In most customary, private legal systems, violators who cannot or do not comply with court-imposed demands for restitution lose the protection of the legal system.

As I read the literature, there is reason to suppose that private systems of law handle violent offenses relatively efficiently. Anderson and Hill argue that the American Wild West, on and beyond the fringes of government control, was not actually that wild. Bruce Benson documents the gradual transformation of customary Anglo-Saxon law to modern state-based law, which at each step seems to have been motivated by rent-seeking considerations, not by a desire to improve the efficiency of violent crime-fighting. Leeson explores the adjudication of violent offenses along the sixteenth-century Anglo-Scottish borderlands, effectively a war zone; this was not a pleasant place and time to live, but the system of adjudication was more orderly than might be supposed. Modern-day Somalia is under customary law, and while it doesn’t do a good job of protecting outsiders against pirates, it protects Somalis from other Somalis well enough that the Somali economy is outperforming that of its neighbors in many regards. Again, not where I’d like to live, but let’s not suppose that a public legal system would turn Somalia into Northern Virginia overnight either.

Nevertheless, the literature on private legal protection against violence leaves something to be desired. There are many more papers on how private legal systems such as the Lex Mercatoria arose to enforce contracts, even with heterogeneous agents in one-shot trades. At least that is the literature I am more familiar with (see, for instance, this survey by Powell and Stringham). To some extent this is because states have more thoroughly coopted control of the prosecution of violent offenses than that of non-violent offenses, and therefore there are fewer examples. But I’m interested to know if there are other papers I’m missing specifically on how violent offenses are handled in private courts, preferably as recently as possible (I know also about the systems of Medieval Iceland and Ireland).

But while it would be great if the literature on private enforcement against violent offenses were more plentiful, I doubt that the objection most people have to such a system is at root about efficiency or orderliness. Rather, the enforcement of violent offenses frequently involves penalties that we prefer to impose at arm’s length. A serial killer has so many victims and owes so much restitution that the legal system won’t protect him even after all of his assets have been seized to make partial restitution for his crimes. As a result, he’d likely be killed for his crimes under a private legal system. In a public legal system in much of the world he’d be killed as well, but the difference is that we’ve invented an entity called the public executioner to act as a moral veil between the public and its actions.

This reminds me of something that Tyler wrote in October:

Any social system must, at some stage of interactions, impose some morally unacceptable penalties.  If you are very hungry, and you shoplift food, they still might prosecute you.  If you don’t pay your taxes, and resist wage garnishes, they might put you in jail.  If you resist arrest, they might, at some point in the chain of events, shoot you while trying to escape.  Somewhere along the line there is a doctor who can treat your rare disease except he doesn’t feel like working so much, and so he lets you die or suffer; you can find both private and public sector examples here.

Social systems proceed by (usually) covering up the brutalities upon which they are based. The doctor doesn’t let you get to his door and then turn you away, rather his home address is hard to find.  The government handcuffs you so they don’t have to shoot you trying to escape.  And so on.

Those of us who believe that publicly-enforced criminal law leads to numerous injustices need to acknowledge the strength of the public system. It lets ordinary citizens feel like they are not the ones doing the enforcing. It enables a kind of self-deception that a private system does not automatically provide.

Is this a feature or a bug? On one hand, the world might be a gentler place if we were not able to self-deceive about the brutalities that we impose on each other. On the other hand, if the failure of private systems to supply this self-deception means that we are stuck with the many deficiencies of the public system (e.g., police discretion, which leads to corruption, rape of prostitutes, and victimization of the poor), then it’s imperative that we either try a) to discover ways for private law to provide self-deception or b) to unmask the brutality of the public system.