1. Feud as Law Enforcement

2. Standard Modern Model of Law Law made by Legislature and/or judges Detection and prosecution of offenses – Public for criminal law—police and prosecutor – Private for tort law Disputes resolved in government courts Verdict enforced by government

3. Feud Law: A Different Model Law enforcement private and decentralized Historically common Arguably most legal systems started that way And in some form it still exists “Feud” has nothing to do with “feudal” – The words sound the same but are unrelated – In meaning and origin

4. The Logic of Feud Law If you wrong me I threaten to harm you Unless you compensate me

5. For it to Work It Needs Some mechanism so that right makes might Commitment mechanism – To make threat believable even when costly – And even after the victim is dead Mechanism to protect those too weak to believably threaten retaliation Some way of ending feuds

6. Mechanisms for Might Makes Right Saga period Iceland: Legislature, laws, courts Rominchal gypsies: informal norms, friends support you if you are in the right, not otherwise Somali: Traditional law, ad hoc court mechanisms All of these solve two problems – Prevent the use of threats for deliberate extortion – And prevent individuals from acting as biased judges in their own case

7. Commitment mechanisms Pre-human: Territorial behavior in birds and fish Human internalized commitment: Vengefulness Human external commitment: – Maintain reputation to deter rights violations – Being a wimp is shameful, loses status – Success gains status, which is why there are volunteer enforcers in Icelandic, Commanche Enforcing your rights after you are dead – Kin inherit your claim, enforce it, or … – Pre-arranged group does it: “diya-paying group”

8. Protecting The Weak Icelandic Solution – Tort claims are marketable, so … – If I don’t have the resources to enforce my claim – I transfer it to someone else who does Somali Solution – Group formed by a mix of kinship and contract – Whose members share the right to collect damages – And the obligation to enforce claims

9. Termination of Feud What happens if – I think you wronged me, you disagree – You refuse to pay damages, I harm you – You view that as my wronging you, so … – Threaten to retaliate if I don’t compensate you – I disagree, refuse … – Endless feud? Icelandic solution Somali solution Finnish Gypsy solution

10. Icelandic – If my retaliation injures someone not outlawed – I owe damages to him or his heirs – So if I ignore court verdict, it gets expensive – Or coalition against me expands – Most feuds terminated quickly by court verdict or arbitration Somali: – Ad-hoc courts, local enforcement of verdicts – When too many people were being killed, both sides agreed to raise wergeld Kaale (Finnish Gypsy): – Feuding families avoid each other – until everyone has forgotten what they were feuding over

11. Underlies Many Legal Systems Anglo-American common law came from – Anglo-Saxon law, which was essentially – Icelandic system plus a king Rabbinic law has evidence of fossilized feud – The role of the “Avenger of Blood” – Evidence of self-enforcement of claims Islamic law (fiqh) includes jinayet – Law for killing or injuring – A claim by the victim or his kin for – Damages or retaliation Roman law: – 12 tables appear to refer to self help remedies – Early republic, plaintiff must drag defendant to court – Verdict gives him a right to seize, sell or execute, defendant

12. Chinese Law?

13. Modern Forms of Feud Law Informal under the shadow of state law – Rominchal – Sicilian Mafia – … Within the state legal system – Suing someone who is innocent is a wrong – And a suit in response is retaliation – In particular …

14. Patent Infringement Litigation Apple wants to sue Samsung – Even if Samsung didn’t violate patents, because … – The court might make a mistake in Apple’s favor – And fewer people will buy Samsung’s phones while the suit is in process. But … Samsung could sue Apple too – Which is a reason for Apple not to sue – If they don’t have a strong case So the court system is why right makes might

15. The Patent Troll Problem Suppose I own lots of patents – Not because I use them, but … – Because they let me sue infringers – Or people I claim are infringers I threaten to sue you. You are innocent but … – The court might make a mistake, and … – Litigation is expensive – So you settle instead – Successful extortion And it works because … – I don’t practice any patents at all – So am immune to threats of retaliation

16. A Solution from Periclean Athens In the Athenian legal system of 2500 years ago – For at least some tort cases – The losing plaintiff owed the prevailing defendant – 1/6 th of the amount he had claimed as damages Think of it as the damage payment for suing an innocent party – Thus imposing a risk on him of losing – Due to court error

17. For more see My web page: www.daviddfriedman.com And the draft of my current book project http://www.daviddfriedman.com/Academic/Co urse_Pages/Legal_Systems_Very_Different_13/B ook_Draft/LegalSystemsDraft.html