2. Irish Law An elaborate ancient system of law
Of which we have very imperfect knowledge

3. Sources Legal texts written in about the 8th century Wisdom texts
Survive only as passages quoted in 14th-16th c. material
Fragmentary, different sources differ
Later explanations of what the quoted passages meant may be wrong
Wisdom texts
Sagas, accounts from the pagan period
Saints lives
Observations of the society after the Norman conquest
Different descriptions disagree, possibly due to
Errors in transmission
Different places
Different times
Imagine someone twelve hundred years in the future trying to make sense of surviving fragments of U.S. law

4. Political Structure
Tuath, small local kingdom, perhaps 3000 people, about a hundred tuaths in Ireland
Inhabitants owed some taxes and military service to their king
The king’s role in the legal system is unclear
Over king—had several kings in allegiance to him
Provincial king, aka great king, was king of several over kings
Most individuals had rights only within their own tuath

5. Kinship Structure fine is kingroup, defined by male line kinship
Derbfine: agnatic group of 4 generations
Male line descendants of a common great grandfather
Farming land mostly belonged to the derbfine, allocated to members
The derbfine was the group that was allied for a feud
And liable for damages owed by a member
If a member was killed, payment went to kin, not limited to derbfine
Like the dia-paying group, but purely by kinship save for adoption.
If a derbfine went extinct, the land was allocated by a larger kin group

6. Marriage Multiple categories of marriage, depending on
Resources each party contributed, which determined their mutual rights
Degree of advance consent from the woman’s kin
Husband could have both a wife and concubine/secondary wife
A woman was under the authority of father/husband/son (like Athens)
Women had limited rights in the legal system

7. Class Structure:Noble/free/unfree
Mostly lords, defined by number of clients
Hospitaler
Some professions were at the edge of noble class, such as poets
Noble class had higher honor price, some other legal advantages
Freeman
Mainly divided as big farmer vs small farmer
Defined by size of herd and other wealth
Unfree
Ranges from landless but free to move
Down to slaves

8. Honor Price Defined by status for adult male freemen
Your honor price determined …
How much you were owed for an injury
How much you could contract for on your own
The weight of your oath in testimony

9. Private Law: Contract Enforcement
Pledges: Give something of value to guarantee performance—a hostage
Sureties
Naidm surety: Witnessed the contract and had the right to use force to make you perform
Rath surety: Pledged to pay what you owed if you didn’t
Hostage surety: If you defaulted he surrendered himself
Had to ransom himself back
And could then claim reimbursement from you
May have been a standing surety for his kin or tuath
There would be sureties on both sides, at least for substantial contracts
Perhaps the idea was to entangle enough neighbors in the contract
Who would to know the terms and help enforce them
A solution to the problem of making sure that “Right makes might”

10. Interdependence and its Effect on Contracts
People with mutual obligations had some ability to dissolve contracts, especially ones that might prevent the performance of those obligations
A son would be obligated to support his aged father, so each had some ability to dissolve contracts made by the other
Husband/wife.
If marriage on husband’s property he had more ability to dissolve her contracts
If marriage on wife’s property, the reverse.
If marriage on joint property, either could dissolve contracts that might be disadvantageous
Kin group
Can forbid contracts that risk the common land, such as adoption or sale
Can refuse to back contracts that they might be responsible for
It is not clear who got to make decisions for the kin group. Leader? Oldest male?

11. Distraint Apparently a private procedure to collect what is owed
An elaborate ritual, with delays to let the defendant
Pay, post a pledge
Or agree to arbitration
The procedure ended by confiscating cattle to pay the debt
What counts as agreeing to arbitration? By whom?
Fasting against nemeds
Apparently the nemed cannot eat while the other is fasting
Until he has given a pledge or appointed a rath surety
If he does, he owes double damages.
Apparently collected by distraint

12. Death, Injury and Feud Killer owes Damages for Injury:
Wergeld that is a fixed amount for any freeman
Plus a fine to kinsmen on both paternal and maternal side
With the amount owed to each depending
On his honor price of the kin
And how closely he is related to the victim
Damages for Injury:
Owes an amount based on the injury and the honor price of the victim
Also owes sick maintenance.
Of the victim, in a style appropriate to his status
Enforced by feud. If not paid, offender can be killed or enslaved.

13. Curial Justice: Proceeding in a Royal Court
Elaborately described, but we do not know what it applied to
Possibly conflicts involving the king?
Or in the court of an overking or provincial king for conflicts between tuaths?
Or for all cases at a later date than the private procedure?

14. Curial Procedure Oaths: strength depends on your honor price
Higher status could overswear lower.
A reason not to contract with high status people
One oath could be supported by another. Do they add up?
Women’s oath only for special cases where only a woman would know—as in Islamic law.
The weight of your evidence was determined by your honor price.
Ordeals could be used if the judge could not tell who was in the right
Duels had to be agreed to by both sides, guaranteed with sureties.

15. Is What We Are Seeing Private law early, curial law late?
Both coexisting for different categories of cases?
Authors of what we read who were trying to shift from one to the other?
A feud system, with elaborate procedures to involve others and minimize violence?
Private enforcement of the king’s judgment, like the enforcement of court verdicts in Iceland?

16. An Elaborate and Sophisticated Legal System
Of which we have very imperfect knowledge
There was a private and decentralized system of law enforcement
Also a Curial system
And it is not clear how they interacted

17. Questions on the chapter?
Plains Indians
Questions on the chapter?

18. Background The plains Indian lifestyle
Riding horses, hunting buffalo, living in tipis
A new invention in the 18th century
Due to the Spanish bringing horses to the New World
The three tribes we will look at
Comanche: Entirely stateless, militarily successful
Kiowa: Somewhat more structure
Cheyenne: A protostate, but only in the summer
An interesting example of parallel social evolution
The three tribes had separate origins
Ended up with very similar lifestyles
Due to taking advantage of a common technological opportunity, provided by
Horse, buffalo
And rifles
In their own terms, these societies are wealthy
Occasionally at risk of starving to death in the winter, but
Enough horses so that men frequently give them away

19. Comanche In their terms, wealthy—lots of horses
War chief as entrepreneur
A war chief is any warrior who proposes a raid
And gets other warriors to join in it
Peace chief as whoever the band follows
No government, executive, legislative, or judicial
Spectacularly successful at warfare
Against other Indians, Mexicans, Americans
Blocked expansion across Texas for decades
Eventually defeated by overwhelmingly stronger opponent
War without a government to pay for it.
How did they do it?
Warfare was a private good for loot and status

20. Dealing with Internal Conflict
Wife stealing for status
Done openly, husband demands compensation with threat of killing
A bluff both ways, since killing will result in revenge killing by kin
A game of chicken.
The game known, in economics and game theory, as Bilateral Monopoly
One buyer, one seller
Bargaining over the price
If the husband can’t deal with the wife stealer himself
He can call in his brothers; they get the damage payment
Or he can get a champion, champion gets status, husband gets the payment
Similar to the Icelandic pattern
Charge of adultery against a wife
Husband can torture or kill the wife
Wife can swear by earth and sky that she is innocent
Husband accepts oath, expects earth and sky to kill the wife if false

21. Settling other Disputes
Who in a war party got credit for what: Again the oath
Theft? Beneath the notice of a warrior
Murder?
Killer was killed by kin of victim, which ended it
Killing by sorcery a special case
Try to get another medicine man to cure
Or get the suspect to stop, but …
No obligation to kill him if he didn’t
He swears innocence by sun and earth
Multiple killing by sorcery might result in group retaliation
Killing him or
Tricking him into violating his taboo and dying
Interesting ways in which religious belief supports the legal system

22. Kiowa Class system Political structure Onde—high status warriors
Ondegupta—would-be Onde. Source of conflict trying for status.
Commoners
Dapom. Tolerated low status.
Political structure
War chiefs like Comanche
Headmen who made decisions for the band
Ten keepers of medicine bundles, magic items.

23. Conflict Conflict and status: Ondegupta who claims he was wronged
Threatens violence but lets himself be restrained
Until a medicine bundle bearer shows up to suggest peaceful settlement
If necessary a second, third, fourth
Refusal of the fourth believed to result in death by supernatural agency
If someone does get killed
Possibly retaliation by kin of the victim
Possibly compensation
Killer becomes unlucky, as in Athens
So again a game of chicken
Like the Comanche
But with a mediator mechanism to force settlement

24. Cheyenne The Cheyenne Way. On reserve in the library
A detailed and approving account of the legal system
By an anthropologist (Hoebel) and a prominent legal scholar (Karl Llewellyn)
Summer, ~4000 together (the whole tribe)
Winter split up into ten bands
Summer a sort of government
Council of 44, ten year terms, each chief chooses his successor.
4 from each band, plus
4 priest chiefs+1 keeper of the sweet-medicine.
Soldier societies (military fraternities)
Dog soldiers are their own band
Other nine societies are dispersed in winter
Each has two war chiefs, two “servants”—junior chiefs, but …
War party could be formed by anyone.
Decisions by the council, consensus, interaction with soldier societies
Deciding war or peace with other tribes
Organizing the buffalo hunt

25. The Buffalo Hunt Controlled by the council
Nobody allowed to attack the herd until everyone did
Story: two young men caught attacking before the word was given
Enforcers shot their horses, smashed their guns
Boys’ father came up and told them they were in the wrong
Once it was clear the boys recognized the authority they violated
Members of the enforcer group gave them two horses, a gun.
What is the purpose of the rules on the buffalo hunt?
To do a more efficient job of hunting buffalo? Or …
To establish the authority of the rules
Which was done once the offenders conceded that they were in the wrong
But why destroy their property instead of confiscating it? Wasteful.

26. The Efficiency of Inefficient Punishment
The soldier society in charge of the buffalo hunt is
Convicting violators without a trial
Setting the punishment itself
If punishment is profitable, if they confiscate horses and guns
They have an incentive to over punish, punish the innocent
And even if they don’t, others may believe they do, not trust them
The issue is not limited to the Cheyenne
Suppose when we executed someone the organs forfeited for transplant
Clearly a large gain in efficiency, but …
Also an incentive to expand the range of capital crimes
A point explored in some science fiction stories by David Brin
Arguably this problem currently exists in the U.S. legal system with
Civil forfeiture
Punitive damages, class actions

27. Dealing with Violence Problem: Solution:
A society with a lot of casual violence
And very little equivalent of a court system or legislature to deal with it
Solution:
Ordinary violence is between the parties, but ..
Killing, for whatever reasons, leads to at least temporary exile
It does not depend on who is at fault because
It is viewed as hygiene, not punishment.
Killing a fellow Cheyenne pollutes the killer
And the pollution is contagious, like Romani marimé
After some years, the killer may be let back in, with permission of the kin of his victim
But the pollution, while weaker, still remains
And nobody will ever share his pipe, eat from his bowl

28. Sources and Disagreements
What I have just given is according to Llewellyn and Hoebel
According to Grinnell
A killing results in a feud with the victim’s kinsmen
They may kill the killer in revenge
They may agree to a settlement
After which the killer is still shunned, effectively exiled, for some years.
Llewellyn and Hoebel base their account on interviews
Conducted on reservation in the summers of 1933 and 1934
About fifty years after the Cheyenne went on reservation
Want to argue the virtues of the Cheyenne legal system
Grinnell visited with the Cheyenne from 1890 on
He views the Cheyenne as friends he respects, wants them to look good
So may leave out unattractive elements of their culture, such as
“Putting a woman on the prairie,” mass rape as a (rare) punishment

29. Sources on the Comanche
Wallace and Hoebel interviewed Comanche on reservation from 1933 to 1945,
Nelson Lee was captured by Comanche in 1855, wrote an account
Two other captives were tortured to death in his sight, a third he thinks elsewhere
He survived because his captors were impressed by his alarm watch
Kept him as a slave along with it
He eventually escaped
According to him and at least one other early source
Male captives were routinely tortured to death
Female captives were gang raped
All of which Wallace and Hoebel ignore or minimize. Why?
The Comanche we are interested in were an arrogant and powerful people
The Comanche Wallace and Hoebel interviewed were the surviving remnants
Sixty-five years or more after the end of their independence
Objects of sympathy, not fear

30. The Problem of Sources
I have discussed the problem of sources for several legal systems
You will want to pay attention to these issues in your papers
Questions to ask about whatever sources you are using
How reliable is the information they have
Contrast Llewellyn and Hoebel, interviewing Cheyenne who spent most of their life on reservation
With Grinnell, talking with Cheyenne a few years after they went on reservation
Or Wallace and Hoebel with Lee, who observed the Comanche at first hand
What are their biases? What do they want readers to believe
Llewellyn wants readers to think the Cheyenne had a brilliantly designed legal system
Grinnell wants readers to think well of the Cheyenne
Lee wants readers to buy the book of his exciting adventures
Also wants the army to do something about the Comanche
And the government to ransom back captives, such as he was
What do your sources want you to believe?

31. More Examples Wael Hallaq, one of my major sources for Islamic law
Wants to praise traditional Islamic legal institutions
In contrast to both modern western institutions
And those of modern Muslim countries
So may be uncritical of evidence on how well the traditional system worked
Wants to blame the west for what he thinks went wrong
And so emphasizes the cases of colonized Islamic societies
And minimizes similar changes in the Ottoman Empire, which was not colonized
Anne Sutherland, my best source for the Romani
Likes and admires the Romani she interacted with
Does not want to believe that their culture has failed
And so minimizes, in her second book, the implications of the facts she reports.

32. Figuring out Who to Trust
In research for your paper (and much else)
You are frequently depending on sources for information you cannot easily check
One useful approach is to find something you can check
And use it to judge the source’s reliability. For example …
Hallaq claims that Darwin and Galton believed
Inheritance was carried by blood and only the male line mattered
Galton did research to check both of those claims and concluded they were false
Which is evidence that I should not entirely trust Hallaq
For details see my blog
A different source, writing about the Romani, gives a purported quote from Darwin
To show he had racist views about the Romani
Half the quote is real, half is someone’s invention
And the real quote shows no prejudice at all
For details see this post.
And you can, because I have just webbed the powerpoints, including this one