The Rule of Law – Part 1

Systems of order without government-enforced law.

In this essay series, we’ll be looking at the “rule of law,” namely how the United States runs its legal justice system. But first, in this essay, we’ll explore how some cultures carried on without any government-enforced legal system, using David Friedman, Peter Lesson, and David Skarbek’s book Legal Systems Very Different from Ours.

One such culture was that of “Saga-Period” Iceland. As the authors explain:

In the latter half of the ninth century, King Harald Fairhair unified Norway under his rule. A substantial number of the inhabitants, unhappy with the change, left; many went either directly to Iceland, which had been discovered by the Norse a few years earlier, or indirectly via Norse colonies in England, Ireland, Orkney, the Hebrides, and the Shetland Islands. The political system they developed there was based on Norwegian332 traditions with one important innovation— there was no king.

Without an ultimate government authority, the system worked through a system of “neighbor juries”:

A court system requires some way of determining the facts of the case, made more difficult in a society where most people were illiterate. The Icelanders made use of a system of panels of varying size. In some contexts the panel consisted of the nine nearest neighbors to the site of an event, such as a killing. In others, it consisted of witnesses to a required legal act. There were requirements for who could be on a panel and procedures for dismissing unqualified members, such as anyone too closely related to plaintiff or defendant … The function of the courts was to deliver verdicts on cases brought to them. That done, the court was finished. For serious offenses, conviction meant full outlawry. The outlaw’s property was confiscated [and] [i]t was legal to kill an outlaw, illegal to feed him, shelter him, or help him to leave Iceland.

Such a system maintained at least a minimal degree of order, at least as long as no single person gathered too much power:

One possible objection to a system of privately enforced law is that the poor or weak would be unable to enforce their rights. The Icelandic system dealt with this problem by making the victim’s right to compensation transferable. The victim could turn over his case to someone else, either gratis or in return for a consideration. A man who did not have sufficient resources, in wealth or allies, to prosecute a case or enforce a verdict could sell it to another who expected to make a profit in both money and reputation by winning the case and collecting the fine. This meant that an attack on even the poorest victim could lead to eventual punishment. A man might volunteer to take on a case not for money but in order to gain status or because the offender was an enemy he wished to harm … A second possible objection is that the powerful could commit crimes with impunity, since nobody would be able to enforce a judgment against them. Where power is sufficiently concentrated this might be true; that was one of the problems that led to the eventual breakdown of the Icelandic legal system in the thirteenth century. But so long as power was reasonably dispersed, as it seems to have been for the first two centuries after the system was established, this was a less serious problem. A man who refused to pay his fines or offer a reasonable settlement and as a result was outlawed would probably not be supported by as many of his friends as the plaintiff seeking to enforce judgment, since in case of violent conflict his defenders would find themselves legally in the wrong. If the lawbreaker defended himself by force, every injury inflicted on the partisans of the other side would result in another suit and every refusal to settle and pay would pull more people into the coalition against him.

But once a few accrued significantly more power than others, things began to break down:

One cause of the breakdown of the Icelandic system seems to have been increased concentration of wealth and hence power … Why did power become more concentrated? Possibly because a coalition controlling multiple [families] could raise a larger force in support of legal claims … A second and related cause of the breakdown was the introduction into Iceland of a foreign ideology— monarchy. By the end of the Sturlung period the chieftains were no longer fighting over who owed what damages to whom but over who should eventually rule Iceland. The Norwegian king gave at least one of the Icelandic leaders the title of Jarl, along with instructions to take over Iceland on his behalf and collect tribute.

Another interesting culture that maintained order without formal law was pirate culture. As the authors explain:

The average Caribbean pirate ship was crewed by 80 men, and the largest crews consisted of several hundred. This raises the question of how pirates, who, as criminals, could not rely on government to provide their crews law and order and had no compunction about murdering and stealing for private gain, managed to cooperate with one another to engage in piracy … Unable to rely on government- created law to regulate their behavior but in at least as much need of regulation as legitimate citizens, pirates created their own law “for the better Conservation of their Society, and doing Justice to one another.” Hollywood pirates call this the “pirate code;” actual pirates called it their “articles.” … [A]board the Royal Fortune, captained by Bartholomew Roberts … key elements of pirate law [were]:

I. Every Man has a Vote in the Affairs of Moment; has equal Title to the fresh Provisions, or strong Liquors, at any Time seized, and may use them at Pleasure, unless a Scarcity make it necessary, for the Good of all, to vote a Retrenchment.

II. Every Man to be called fairly in Turn, by List, on board of Prizes, because, (over and above their proper Share) they were on these Occasions allowed a Shift of Cloaths: But if they defrauded the Company to the Value of a Dollar, in Plate, Jewels, or Money, Marooning was their Punishment. If the Robbery was only betwixt one another, they contented themselves with slitting the Ears and Nose of him that was Guilty, and set him on Shore, not in an uninhabited Place, but somewhere, where he was sure to encounter Hardships.

III. No person to Game at Cards or Dice for Money.

IV. The Lights and Candles to be put out at eight a-Clock at Night: If any of the Crew, after that Hour, still remained enclined for Drinking, they were to do it on the open Deck.

V. To keep their Piece, Pistols, and Cutlash clean, and fit for Service.

VI. No Boy or Woman to be allowed amongst them. If any Man were found seducing any of the latter Sex, and carry’d her to Sea, disguised, he was to suffer Death.

VII. To Desert the Ship, or their Quarters in Battle, was punished with Death or Marooning.

VIII. No striking one another on board, but every Man’s Quarrels to be ended on Shore, at Sword and Pistol.

IX. No Man to talk of breaking up their Way of Living, till each shared a 1000 [pounds]. If in order to this, any Man should lose a Limb, or become a Cripple in their Service, he was to have 800 Dollars, out of the publick Stock, and for lesser Hurts, proportionately.

X. The Captain and Quarter-Master to receive two Shares of a Prize; the Master, Boatswain, and Gunner, one Share and a half, and other Officers one and a Quarter.

XI. The Musicians to have Rest on the Sabbath Day, but the other six Days and Nights, none without special Favour.

As the authors write:

Article IX addresses employment insurance. Pirates were not unionized. Nevertheless, they managed to establish a policy for which labor unions commonly claim credit: workers’ compensation. Pirates compensated crewmembers injured on the job out of the “publick stock.” After seizing a prize, but before paying shares, the specified sums were taken off the top and distributed to injured pirates according to the damages they sustained. Losing his right arm, for example, might entitle a pirate to more compensation than losing his left, reflecting the former’s higher value to pirates, most of whom were presumably right-handed. Such insurance reduced crewmembers’ incentive to stay back in violent confrontations with prey.

The main enforcer of the rules was the quartermaster:

Laws that cannot be enforced are of little use for regulating behavior. To enforce the laws their articles contained, pirates created the office of quartermaster … Additionally, the quartermaster distributed booty and provisions per the terms of his crew’s articles and mediated conflicts between quarreling crewmembers, acting as “a Sort of civil Magistrate on board a Pyrate Ship” … I have emphasized the powers that quartermasters exercised on pirate ships, giving short shrift to the powers of captains. So did pirates. Only while pirate crews were “in Chase, or Battle” did their captains wield special authority, when, “by their own Laws,” “The Captain’s Power is uncontroulable.” At all other times, pirate law treated the captain like any other member of the crew. As a result, [as one historian] remarked, “the Captain can undertake nothing which the Quarter- Master does not approve.”

Pirate crews were fundamentally democratic institutions:

Crewmembers popularly elected their captains and could, and did, popularly depose them “as suited Interest or Humour.” It therefore behooved pirate captains to make good on the promises they made their crews, such as that which pirate captain Nathanial North made following his election to do “every Thing which may conduce to the publick Good.” … The reasons that pirates introduced these institutions on their ships should also sound familiar. They are more- or- less the reasons that America’s Founding Fathers gave in the Federalist Papers for introducing such institutions in American government: the need to empower authorities to facilitate the protection of life and property and the simultaneous need to constrain authorities so that they do not misuse their power.

Indeed, as Rebecca Simon writes in The Pirate’s Code: Laws and Life Aboard Ship:

Diversity was common on a pirate ship, whether it was intentional or not. Many pirate ships had Black crew members, who could be former enslaved people, escaped enslaved people or freedmen. They were often just as valued as the rest of the crew members and received their fair share of plunder as payment. Between 1715 and 1726, between 25 and 30 per cent of pirates were Black … Approximately 50 per cent of a pirate ship’s crew were generally English white men. The rest of the crew were a medley of seamen from Spain, France, the Netherlands, Germany, Scotland, Wales, Ireland, India, Africa and sometimes even as far away as China. They were extremely close in that they were all connected to a rigorous regime of authority and discipline.

Pirate norms also included religious toleration. As Simon writes:

Religious folk, particularly those who were marginalized, also found their place on a pirate ship. Even though these spaces were not particularly religious, various Christians, Catholics, Jews, Muslims and those without religion were welcome on board. This was a time in which Jews and Muslims did not have a place in the British world and Catholics often faced discrimination. Jews were rarely welcome in any part of Europe, save the Netherlands for a time. Muslims, or Moors (a slur attributed to them), had also been cast out of their Spanish homeland. Pirate ships only had two requirements: to be a brave sailor and a courageous fighter. Religion and race did not matter here.

Finally, pirates were responsible for their own “weapons, powder and shot.”

In the next essay in this series, we’ll explore the evolution of the rule of law in the governments of Western Europe, from which derives the large majority of law around the world today.