What vitiates entirely the socialist economic critique of
capitalism is their failure to grasp the sovereignty of the
consumers in the market economy. Welcome to Keith's night.
Don't tread on anyone today. We have.
Mr. David D Friedman. We will be discussing his book
legal systems, very different from ours.
Mr. Friedman. Where's the best?
Place to purchase the book. You can get the Kindle or the
paperback from Amazon, and you can also get the Audio book from
Amazon, or from inaudible. Excellent.
Links will be in the description below on all platforms.
Mr. Friedman. What is the purpose of a legal
system? Huh?
I guess to settle conflicts among people's actions.
Would be the closest statement. It is some way, so that when I
want to do something, you don't want me to do it.
We have some hopefully peaceful way.
Of settling the question. What is the best evidence that
you have? That people can settle conflicts
between themselves in the absence of a coercively funded
Monopoly or a state? The fact that there have been
first, the fact that in modern societies, many of the ways in
which we settle disputes, do not involve any coercively funded
Monopoly. That, for example, when my, when
the two kids of my present marriage, We're Young, our
daughter did not want her brother coming into her room
without her permission. She could enforce that because
she was the With the result that he wanted to play with her more
than she wanted to play with him and she could therefore use the
threat to withhold her attention as a way of enforcing her
desires successfully and the sign they're both adults at this
point, but the sign she hung on her door telling him not to
come. In is still there the so but
that would be a simple example, but to go to the question of
where there is. Is no framework of a course of
Monopoly. The answer is that there are a
variety of relatively primitive societies more primitive than
ours at least, in which you had stateless orders are different
sorts, and they're really well. I'm not sure that there any I
know much about where there is no overarching state, but there
are ones where the control isn't really being done by the state.
So if you think say, if the Amish is, you're basically
unwilling to charge each other with cry.
Ramos horta, Sue each other. They disapprove of that.
So they have their own mechanisms for enforcing for
settling disputes among themselves.
And the older MIT sanction in those mechanisms is ostracism
that if you if you don't go along with the rules for long
enough through enough repeated attempts to get you to do, so,
then they the clergy of the car. Aggregation announces that you
are now ostracized my doom and that means that other members of
the congregation and probably other Amish as well.
Will associate with you only in a very limited fashion and
that's a serious costs enough, the cost so that most of the
time the system works so that would be a modern example in
modern day America, but people like the Somalia Somali ins the
northern Somalia amisom. People in Somaliland or the
better ones would be examples of societies where there's nothing.
We would recognize as a state. Now.
That doesn't mean there was no coercion that in the systems, we
know about there was always sort of backing it, the threat that
under some circumstances, somebody would attack you and it
was rather a way of controlling that.
So the normal result was a peaceful settlement rather than
the normal result being people killing each other.
But people killing each other get happened.
Of course, as it happens in our society was just that was when
the system broke down in effect. Yeah, one of those systems that
I know best is Saga period Iceland.
And I'm a little reluctant to call it stateless because that
Society had a legal code of legislature in a court system,
what it did not have was a state to enforce the verdicts.
So whether you count, I usually refer to that as semi stateless,
whether you count that as a state, it's sort of up to you.
But that meant that the mechanism for enforcing, the
verdicts was basically the threat of violent Force by other
people and the court system in the legislature and the law code
were ways of controlling that threat.
So that ordinarily it was clear who was on the in the right and
who was in the wrong and most of the time, if you were in the
wrong, you back down and you paid the damages, you were
supposed to pay, sometimes you didn't, of course, is in our
system. All excellent points.
Yeah, I never am in a conflict with someone and say, you know,
I really need the state to intervene to really Sue things
over. Even when a cop wrote me, a fake
ticket for waking in a non wake zone.
It's so much easier just to get rid of them.
Then, to go through the coercively funded court system.
One of the major hurdles that comes up when discussing legal
systems that are very different from ours is well any that
involves non-state participation?
Would include me having to pay fees and I might be poor.
That's why I committed crime and I might not have the money, what
confidence, you have that in a stateless society.
People would be able to afford and still have access to Legal
Services in the absence of a state.
Yo, to begin with, of course, in our current state Society legal
services, are not free that if you want to invoke this, that is
legal services where the government is going after
somebody. For doing something, the
government disapproves of our free for everybody.
Except the person they're going after and the taxpayers of
course, but if I complain about something you're doing and why
do you use the law against it? I have to hire a lawyer.
I may have to pay court fees. So that's not Costless either.
And in the historical societies that I know about.
It wasn't really a matter of paying somebody for the service.
It was a matter. Of having allies and friends and
relatives and doing things yourself.
So, that's sort of what's happening in one of those
societies. Is that you do something.
I regard as violating my rights, you kill one of my son's say, I
then Go through some procedure designed to get you into the
legal system and to make you pay damages for doing that.
If that isn't working, then I and my allies threatened to use
Force against you. And if it's a Well functioning
system, you don't have allies. Because people other people
around realize that you're in the wrong or you don't have very
many allies and therefore, usually you back down or usually
I win. So it's not.
Those societies have money, but the money isn't the major
element of how they're coordinating that sort of thing.
Now. The money does come in at least
in the Icelandic system. And I think also the Somali
system in damage payments. So that you I wronged you and
the settlement May well be that I have to pay you a certain
amount of money. And there's a famous scene in
the all Saga sequence of scenes, where you have two men, who are
Close. Friends, their wives hate each
other and the wives have been organizing getting members of
the household to kill members of the other household back and
forth. That is they get a to kill B.
Then the other person gets see to kill a and so forth and you
get, I don't know, maybe four or six.
People killed in the course of this and the two husbands are
passing. A purse of silver back and forth
paying damages for the killings of their wonder what sort of a
bizarre sequence and we don't know if it really happened.
Not that which only part of an interesting story.
So you do have money payments of that sort and on the whole money
payment seem like they usually make more sense than jail
sentences. Since jail sentence of you got
to pay for the jail and the victim doesn't get anything.
And of course our tort system is money payments as well.
It's just one way of describing. The Icelandic system is to say
that tort law has swallowed criminal law.
That is to say that. Now that's that's not really a
historically, right? Because you didn't I in tort law
in a certain sense. Was invented a long after that.
But but in our terms that's what's happening, but it's
privately, enforced tort law. Not.
And there are, there are criminal punishments, in our
sense, in the sense that if you kill somebody, and the case
doesn't settle out of court, you eventually end up getting
outlawed and when you're outlawed, it's legal to kill you
and illegal for anybody protect you.
So there is an effect, capital punishment, but capital
punishment, only when the only, when the Creation system, breaks
down whereas in our system when we have capital punishment, if
you kill somebody, it's the state that decides to execute.
You. Not the close relative of the
victim who is the person who would be handling it in the in
the Icelandic system and and in but I think you see one of the
things I own interesting is you see what looked to me like
fossilized remnants of this. Mmm, in a variety of other legal
systems. So for example, I have a
discussion with regard to Jewish law where Jewish law as of the
time we know it is not really a feud system.
But Jewish law has features which looking awful lot as
though, it evolved out of that kind of system.
And I think that's probably true of Roman law though.
We don't think we'd have is clear an idea of how the early
parts of that worked. It's clearly true of our law
have because our legal system is Anglo-american common law which
came out ultimately of anglo-saxon law.
And if you look at the Anglo-Saxon law before its last
century or so, it looks an awful lot.
Like act like the Icelandic system.
Although it's not as pure a case because there is a king or as I
shouldn't had no head. No King had, no no formal ruler
at all. Now, I should say, I don't want
listeners to get misled. The book is not all about this
kind of system. The book discusses.
I think about 13, I think. Current legal systems of which
the Somali and the Icelandic are really.
The only ones that I would describe as in some sense.
Purely stateless systems. The Irish law, clearly has a
state with element, but unfortunately, we don't have
good enough sources of how it worked initially to be sure how
much of it was staying was and how much wasn't, and then you've
got a number. Number of things like the Amish
and the Romany where what you really have is a stateless
system underneath the state that is, you have what I refer to as
an embedded legal system, where you've got a group of people who
have mechanisms for settling their disputes themselves, but
are at least nominally ruled by a state over them.
And the basically, the Amish I wouldn't say they.
Well basically the Amish policy is that if the state wants to
make them do something, they really disapprove of they engage
in in passive resistance. So the Amish were not willing to
pay social security for example, or to send their kids to public
schools and in both of those, they eventually got their way
that one I should say. I think the u.s.
May be the only place where there is still Amish.
There may still be some in Canada.
There are none left in Europe. And I think part of the reason
is that for whatever reason, the US was actually quite tolerant
with regard to them. And so the US government
eventually backed down on Social Security and agreed that Amish
did not have to either pay or receive Social Security.
Except I think for Amish, employees of non-amish employers
or I think they still pay it. And similarly, there was a
factually, a Supreme Court verdict in their favor on
schooling, which held That they could take their kids out of
school. I think after eighth grade, if I
remember correctly and in effect homeschool than they were
thereafter and in I think at the state level, the Amish have been
practiced been allowed to run their own schools for those
first eighth grades. And those schools are not
schools. That would be acceptable if
anybody else was running them because the teachers don't have
certification in such being themselves, Amish.
You only go on to eighth grade, but the system works it.
As you can tell, it seems to be quite a well functioning
community. And but anyway, I was just going
to go back and say that the majority of the system's.
I discuss Roman law is Quest, Jewish law.
I discuss Islamic law, I discussed the legal system
apparently and Athens whole bunch of interesting ones.
So that my project is not, this is not a book about stateless
systems. This is a book at about a bunch
of interesting Lee different legal systems, where the beige
one. Our basic assumption is that all
human societies face about the same problems.
They solve them in an interesting variety of different
ways and they're all grown ups that you ought to take all of
them. Seriously, as this is one way in
which these problems could be solved.
Let's see what interesting ideas.
They have what problems they encountered and so forth.
It's not I'm not trying to deduce the perfect legal system.
I doubt there is one probably depends on various features of
the environment its functioning in.
I For example, assume that a state was system will work in
all possible, environments are just been having an email
correspondence with somebody in Armenia.
Pretty clearly has generally libertarian instincts, but is
worried about how our media with turkey on one border and
Azerbaijan, on the other and either than its friend, could
survive without a government mantle.
I don't know if it could or not. Maybe it couldn't the but
anyway, but I should also say that there are two chapters.
In that book, I didn't right there is I got two people, I
knew and written interesting books to do essentially chapter
length versions of those books. And one of them is Peter
Leeson's chapter on 18th century pirate's.
Which turns out to be an interesting legal system, system
of the pirate ships used for themselves.
And the other one is David skarbek on prison gangs, which
again is quite a fascinating story of what's essentially a
legal system that has arisen spontaneously Within Prisons and
those are both quite interesting chapters.
Each of them had written an interesting book.
They're interesting people. But anyway, it's not mainly
about salus ones. But what I did find interesting
in the sort of the research that led to it was that when I wrote
my first book, nearly 50 years ago.
I one of the things I was doing in that book was inventing, an
imaginary modern version of a stateless society and I
concluded with all this, Stuff. I did it on this book that I was
really Reinventing the wheel because less less elaborate
versions had, in fact, existed in the real world, you know, a
thousand years before more or less.
So I should say with regard to how common it is.
There. I've got a quote in one of the
chapters, from a medieval historian and he's really
describing. What I think of is Feud society
as the normal arrangement of the Early Middle Ages.
You had a king nominally, but what normally happened was that
somebody aggressed against somebody else where the victim
might be seen as a family, a monastery, you know, some group
it was generally accepted that the victims could then as it
were charged. The aggressors asked for
compensation. If they didn't get compensation,
they could use Force against the aggressors and everybody else
was and what you know, that's alright.
That's what Supposed to happen. So in that sense, he's
suggesting that really the main system in medieval Europe.
At least for a fair while was that where is even though you
had a nominal system of a king and courts and well as and so
forth over them. Now.
I'm not a medieval historian. So I don't know how
controversial that reading of it is, but I thought it was quite
an interesting passage. So I quoted it.
But anyway, lots of interesting. I guess for the one I start with
is Imperial China, which is Only not a stateless society by any
means, but Imperial China had a more or less continuous
functioning legal system, for more than 2000 years.
There were breaks, you had breakdowns and then a new
Dynasty would come up. But as far as we can tell the
legal code of the last Dynasty, contained, noticeable amounts of
stuff from the Han Dynasty, which was not quite the first,
but The first one didn't wear the first one to unite China,
didn't last very long and Han was its successor.
So Han Dynasty, roughly is contemporary with the Roman
Republic Roman Empire. So starting something like 300
BC and it only collapsed at the end of the 19th century
beginning of the 20th century, roughly.
So, that's one of the really interesting ones in a whole
bunch of ways. We get things from them, the
whole civil service exam system is Chinese.
That's where we Borrowed that particular odds system from as
far as I can tell. And it's way in a sense, one of
the oddest features of that system, which was that the
procedure for becoming an important official involved,
passing extraordinarily selective tests, which were not
about how to be an official. They were about whether you were
educated colder, culture, gentleman, who could improvise
poetry and had beautiful handwriting and was really It in
the Confucian Classics and the second level of exams had a pass
rate or somewhere around 1% the third and highest level, I think
was not much higher than that. It was the sort of thing where
somebody you got through the whole thing probably had spent
his lifetime studying for it and gradually made it through some
time in his 30s. Why in the world did they have
such a system for selecting? What was basically the ruling
bureaucrats, which is what it was?
And I then argue that in fact that system is Alive and Well in
America, it's not quite as extreme or version.
But if you think about the fact that if you want to get most
respectable jobs, your first have to go to college even
though most of what you're depending on your field.
But in many in many contexts, most of what you're studying in
college, has nothing to do with the job, you're going to have So
it's again, somehow a filter which is filtering people,
theoretically, for being sort of educated civilised culture
gentleman, rather than for knowing the things that you
would think they had to know for the job.
So, it's a, the reason for they're doing it.
Let me switch my, my background effect.
So, it's just what's actually in my office, instead of what
you're seeing, just sort of irrelevant.
That's a background effect for I use for other things.
So, so anyway, so that was sort of interesting and lots of other
things. I argue that there are some
features of some of these legal systems that we might usefully
borrow. There are some features where a
feature of the periclean Athenian legal system is echoed
in the way modern Americans run some horse races.
That's sort of one of my favorite examples of somebody
pointed out that that the problem one of the issues for a
legal system, at least a state legal system, is how do you pay
for public goods? How do you get somebody to fund
the Navy for, for Athens and other things?
And the Athenians had their own solution to that problem.
It's sort of a weird system in their system.
If you were one of the richest Athenians every other year, you
had to fund a public good and some magistrate would come up to
you and say you see that beautiful.
Ream down on the deck. Guess who's paying her bills
this year or you've heard that we're sending a team to the
Olympics this year, for the glory of Athens.
Congratulations. You're the sponsor.
And the problem of you think about it is, how do you find
out? Who is the richest people?
And I Athens? All right.
The basic rule was that if you wanted to get out of one of
these things, you had to either show that you did one last year
or that you were already doing one this year.
Or that there was somebody else who was richer than you were,
who haven't done one last year and wasn't doing one this year.
And therefore, he, you could transfer it to him.
And the question was, how in a society without Accountants and
IRS and all the rest of that stuff.
How do you prove that? Somebody is richer than you are,
right? And they had a lovely answer,
was an economist answer and the answer is that you offer to
trade everything, you own for everything he owns and if he
turns you down, he's admitted. He's richer than you were.
Well, it turns out that that's the way.
What's called a claiming race is done in modern day America.
That is the same principle. And the problem is you would
like to have a race in which all the horses are about equally
good. And if you say to people, we
want, you know, level X horses. There's an obvious incentive for
somebody to enter an X plus one horse in order to win the race.
So what you say instead is if you enter this race you were
agreeing to sell your horse for five thousand dollars to anybody
who wants to buy it. You could win the race really
easily by putting in a really good horse, but it would be a
fifteen thousand dollar horse should be selling for five
thousand dollars. So that's exactly the same
principle of self-revealing action applied in Athens more
than 2000 years ago and today in America, although, in one case.
It was part of the political system in the other case,
private private Arrangement. So, a lot of that sort of stuff
is just fun looking at it. And and to take another example,
A problem that lots of legal systems have is if you question
somebody under torture, how do you know if he's telling the
truth? Write that in Athenian, law and
in Roman law, I believe slaves could only be questioned under
torture. And I assume what's going on
though. I don't know is that you mostly
want to question a slave to get information on his owner because
the slave is likely to observe things.
The owner did the owner is in a position to punish the slave
afterwards or to make the slaves life miserable in one way or
another. So you need some countervailing.
Pressure to make the slave. Tell the truth.
That's my theory. I don't know if it's right or
not, but we know that the Athenians argued about the
question that you have a lot of r1r.
Main sources for Athenian, law are the speeches.
That a professional order would write for a party to a law case
to memorize and deliver because you didn't have lawyers but you
you had to represent yourself, but you could represent yourself
with words. Somebody else had taught you.
And it happens that we have one oration, which is on the
question of whether slaves can be trusted slave testimony under
torture can be trusted and The author of that oration says
absolutely. They can perfectly.
Well, be trusted there has never been a case in the history of
Athens were such testimony counting false.
We have another oration in which the already has.
No, of course, they can't be trusted.
They'll say whatever they torture wants them to say.
They were written by the same orator.
Three different clients. But we also have a solution to
this problem in a what I suppose about 800 years later is so in
ostrogothic. Yeah, it's the ostrogothic law.
This is ostrogothic Spain before the Muslims conquered Spain and
in their law code, the rule was that if somebody was accused of
something really serious. Judge, couldn't find enough
evidence to either convict or acquit.
They didn't have our view. If you can't convict, you have
to equip that. He's allowed to torture him, but
he can only torture him. If there is something that the
interrogation that the interrogator knows that a guilty
person would know, an innocent person, wouldn't know some facts
about the crime and if you have that then you stop torturing him
when either you decide he's innocent or he tells you That
thing that's showing he's guilty.
All right, and in theory, it means you can't torture him
unless you have some such piece of information.
Now, we use the same method and it's got the same problem.
Of course, that that when we try to pressure somebody to confess
one of the evidences that he's really confessed rather than
being pressured either. Literally, beaten up, which
police have been known to do or other things.
Short of that is that he tells you things like details of the
crime that he otherwise wouldn't know.
And of course, the problem with our system and I suspect that
their system is, it works just fine.
If the interrogator is honest, the interrogator isn't honest.
He knows the fact so he feeds the fact of the guy the guys
being tortured. So he feeds the fact back and
now you just don't tell anybody that you fed him the fact.
So I just thought I was an interesting kind of parallelism
of the same issues arising. Anyway.
The whole I just found it, sort of quite a lot of fun.
I the way I got into this book originally.
At a very long time ago. I got interested in the legal
system of saga, period, Iceland and that other than my having
read, some of the sagas. I got interested in that because
of the controversy among two pairs of Scholars at University
of Chicago, Gary, Becker, and George Stigler.
Both, until eventually got Nobel prize in economics, and Richard
Posner. And Bill, Landis Posner was a
federal appeals court judge and they were both.
Very prominent law, school, Lonnie Khan Scholars, and it was
an argument over the possibility of switching, our criminal
system to a system where instead of having police be employees
paid a salary, the criminal pays a fine and the policeman
classified. And the original Decker, Stigler
argument was look, the present system is not incentive
compatible because after all, I've got the goods on you.
The punishment is the equivalent view of a hundred thousand
dollar fine. The reward to me in our system
for catching you is a gold star on my report card that I my
reputation is a cop goes up a bit and I make more 10,000
dollars more in my lifetime. And according to Dragnet.
We know what happens, I take the evidence.
It's to the DA and you get prosecuted.
Court of Economics note, we knows what happens to markets
exist to move resources to their highest value use.
So the criminal pays off the cop and the cop turns the evidence.
And that means that in order for the system to work, you need a
second layer of cops watching the first layer and maybe a
third layer. Wedge, the saying it's not as
I'm not that it's impossible. It makes it much harder and
Becker and take their said, look, if I collect 100,000
dollars, you pay the problem disappears and land is imposed
nor pointed out a number of problems with that.
And suggested that after you finished dealing with those
problems. What what Becker and Stigler, it
really done was to reinvent tort law because in tort law, after
all the victim has a claim against the tortfeasor, it is up
to the victim to get that claim Vindicated in the chord.
And then the tortfeasors damage, payment goes to the victim and I
got interested in that and I was interested in part because I
thought I knew about her real. System that worked that way,
namely Saga period Iceland and I ended up writing two different
Journal articles for journals published in Chicago.
One of which was a attempt to understand the Icelandic system
of thousand years ago. And the other of which was a
purely theoretical article showing that what land is
imposed or thought was an insoluble problem with their
Frozen was not. In fact, insoluble.
There was a simple and elegant way of solving the problem.
They had raised and those were both Published.
And the result was that Landis and Posner invited me to come to
Chicago, to argue with them. A shorter range and I ended up
spending eight or ten years as a faculty fellow Chicago, Law
School as a result with that. So that's really the point at
which I switched from doing other kinds of Economics to
doing economic analysis of law. But anyway, so I did the article
and on Iceland and it was a fun article and I learned lots of
neat stuff and thought it was really interesting and then I
was lazy. And eventually I got interested
in another legal system, which is the legal system, the
criminal law of 18th century England.
Because 18th century England on paper is our legal system.
The only thing is there are no police or public prosecutors.
I slightly exaggerated. There are public prosecutors
that you actually commit a crime, a crime against the
against the crown if you need to steal money from the treasury or
something, but for practical purposes, there are no public
prosecutors. So it was a system in which the
law was made and enforced by the state, but the Or prosecution
process the process by which we figured out who is guilty and
prove. He's guilty was entirely private
responsibility of the victim. And so how did that work?
And that was really interesting and I am not writing an article
on that. And again, I thought it was a
fun article and there's lots of interesting stuff some of it
relevant to Modern societies and then I was lazy for a long time
and I said to myself eventually I should stop being lazy, but
I'm lazy by Nature. How can I make myself get some
work done? So there was a solution to that.
I am now, sitting next year. I was teaching a seminar or
legal system is very different from ours.
Well, I had two of them, I needed some more.
So I went to our nice Librarians and I said, can you find me
books, describing legal systems other than ours and they
presented me with one of these rolling bookcases.
I think maybe two or three shelves, High, fill the books.
And I went through the books and I ended up finding enough to do
a seminar and I did that seminar every other year for I suppose
about 10 or 12 years. And I got some additional
information for my students because the students in the
summer and I were writing papers and almost all the papers
consisted of a description of some legal system that I had
covered and that they investigate.
And that was a lot of fun was interesting.
Sort of what, what what they did.
One of my favorite cases with, I had a student who was a sort of
a tall, very Anglo looking fellow.
And so I was asking if the beginning of the seminar, you
know, do you have any special? Sources of information that
would suggest a legal system, but they said, well, I do speak
Vietnamese. And I was a little surprised
that, you know, how do you happen to be a to speak me as
well? He was a Mormon, and he said,
he'd been a missionary and I said, oh, in Vietnam, he said no
Los Angeles, but he didn't make it legal.
Did me a reasonably interesting paper on the traditional legal
system of Vietnam. And the last year I took it,
which was particularly fun. Most of my class consisted of
Saudi. Llm students the ELA a few.
Gotten there who've been through three years of law school, and
then want to get a little bit more.
Basically. I don't know why they were there
but they were almost all Saudis. Saudi Arabia was more or less.
The closest thing that exists in the modern world to Islamic law
to real Islamic law traditional Islamic.
On most of the Muslim states, talked a whole lot about Sharia,
but that's not really what they have.
But they really have our bits and pieces of traditional system
pasted into a moderately system, but the Additional Islamic law
was not made by the state. Traditional Islamic law was
discovered by Scholars from religious sources and the state,
appointed the judges, but the judges are supposed to either be
expert in the religious sources or insulted.
So that was an interesting system.
But now I had a whole classroom full of people who had lived in
something at least not too far from that system.
So I could get information from them.
It turned out that there was a particular institution which my
Very high-status modern secondary sources, claimed
gotten had become exist extinct centuries ago.
He said, oh no, it's not extinct T.
All of us are part of one of those way.
A form of clustering that had that, which was originally
tribes probably, which had legal consequences.
It has not just legal Consequence, the Germans who you
can marry in that system because it's an endogamous system in
which you only marry an effect within your own, right?
So that was really, really neat and was fun.
Anyway, that was the last year before I retired.
So anyway, so so my basic point is that the book really came out
of this experience that came out of the combination of what I
learned in order to teach to them, and what they learned and
taught me in the course of doing their papers.
That was quite a lot of fun sex. Excellent.
The book is legal systems, very different from ours.
I am going to turn things over to my colleague at the
libertarian Institute and Liberty weekly.
He is a practicing Attorney, Patrick, take it over for me.
Hey, professor Friedman. I just wanted to thank you for
being so generous with your time.
With us. Just dovetailing off of what
Keith had asked about. Do you view the Have you viewed
that, there's a lack of scholarship in the area of
studying comparative legal systems?
Huh. There certainly is a literature
on comparative legal systems, but I think most of it goes into
comparing what from my standpoint or versions of the
same legal system. That if you look at it relative
to Imperial Chinese law or apparently, in Athenian law
American law, Japanese law in German law are not that
different. They're, you know, they're
somewhat different. The German law is theoretically
coming out of some mix of Roman and code Napoleon stuff.
And the American law is coming out of old man, the English
common law and Anglo-Saxon law originally, but nowadays in the
modern world. They've got an awful lot more in
common than difference. And I don't think that there is
very much done of what I was doing.
The certainly, some of it. I ended up the book doesn't have
anything on Roman law, but I did do a chapter on Roman law for
somebody else's book and it was clear there that there was just
an immense scholarship. And I was trying to look at a
particular kind of question. And I think I said some things
about it might have been true. But I really felt like short of
a novice in this sea of stuff by people all of whom were fluent
in Latin. Where's my Latin is terrible and
who knew a whole lot more about the details and the very large
textual stuff that survived from most of the Empire.
We don't have that much from the Republic.
And so I think there are particular areas where people
have done quite a lot. Not.
But as far as I could tell for Somali law until pretty
recently, there was really One Source.
One person, a London School of Economics Anthropologist who had
been studying extending the late 50s and I corresponded with him
and I basically had some questions for him and he
basically rather than answering my questions as the answer is in
this book. Of mine and I found the book and
it was that was really interesting.
And since then my friend Peter, Lee sin is written about Somalia
and I've written about it. I'm sure there were a few other
people who have, but I don't think there's been much on that
legal system and similarly, there have been some
Libertarians who have written on the early Irish system and maybe
I should look at more of what they've got.
But I was when I was going by, was basically the work by a
modern high level scholar of early.
The Irish legal history, and I concluded from that, that it was
an interesting system. It was hard to be really sure
what was going on, because we've got fragmentary sources.
They don't seem to agree with each other.
We aren't sure whether the disagreement is changes over
time or changes over space or different people, wanting to
Accent different things, or maybe even distortions and
transmission. Because you're talking about
what something like 9th century sources and survive in 14th
century, 15th century, or 16th century sources.
But but I don't think I have at least come across anything.
That's very much like what I was doing and it was sort of taking
a bunch of very different systems.
And again, there's certainly a lot of stuff on Jewish law and
noticeable amount on Islamic law at least in English.
Maybe not not that much, but it also, of course, the people who
wrote most of those things where economists and that gives you a
particular Angle for trying to make sense of things, which I
think is at least occasionally and informative one.
So, no, there certainly is stuff.
But I in general, I write more than I read.
That is to say it's not literally true.
I read a lot of books for this but I tend not to get into the
very common scholarly pattern of here is a here is a area of
research in my field. I'll read everything in that and
then try to contribute to it that I try rather to say here's
something I'm interested in. What can I learn about?
Of and I understand what I can write.
What can I write about it? And it's at least quite likely.
Maybe some other crazy person three years ago, did something
similar. I've, had that experience, at
least once, but but it's not. It's not, you know, this is my
little bit added to the literature and in the field.
That's, I've I've sometimes said in the context of Economics that
there are basically two different approaches to economic
research, which is I identify with the Intensive and extensive
margin and those are turned that's terminology Ricardo used
with regard to Agriculture and the Intensive margin consists of
trying to grow more Grain on the field.
You already growing grain in and the extensive margin is bringing
new land under cultivation. And in economics.
I like to say the Intensive margin is trying to say
something new about a question that smart people have been
talking about for 100 years. The extensive margin is finding
some place where your ideas can be applied in Attica and I would
take the of the modern people, Peter, leasing would probably be
my favorite example of someone who now works.
The extensive margin, not just Pirates.
He's done a variety of other things.
That's what? Gary Becker did.
Gary Becker. Did it with both the family.
I'm with crime, economic analysis of, that's what Jim
Buchanan and Gordon tullock. Did with public Choice Theory
and I just find that more exciting and more interesting.
And on the whole more productive.
The a long time ago. I was at UCLA and I didn't have
tenure and I didn't get tenure and the chair.
I had a conversation with the chairman of the department and
he said, look, you're a bright guy.
If you followed the journals and wrote articles on whatever with
current Hot Topic, you'd get the kind of record that would get
you 10. You're in a place like UCLA.
And I said, yeah, probably would if you were me, would you do
that? He said no.
That was Lamer I think was the person as I remember involved.
I just remember that is, and I think that's right.
And it's and, you know, I'm, I prefer my the policy that I
followed his more fun and more interesting.
Well, I'm sure it is. And so the first off those, that
one book that you were referring to about ali land, what do you
recall? The name of that book?
I've got the this more than more than one book.
It was just one that had that particular answers, but the
answers As if you look and legal systems, I'm trying to remember
the name. He's it's a Welsh name though.
Not an obvious Welsh like, is it pronounceable?
Oh, yeah. Sure.
No. No, let me, I should be able to
find that. Give me just a minute since I've
got my computer right in front of me.
So it makes it easy to find stuff.
And I just have to get to the web copy of legal systems, which
is right here. And then all, I still need is to
go to the Somali chapter Somalia chapter.
And at the end of the Somalia chapter.
I think I have my, my memory is that in this?
That in this. Version.
I put the know, I guess. I've got it all at the end.
So that will take a minute. Okay.
I have the copy here. I think.
All right. Look at if you go actually, I
could probably have done better than that because if II probably
footnote to it put not reference.
I'm just I too often I lose words.
And at this point, I'm just not remembering the guys name.
I could remember it five minutes.
It's from now, maybe but the that's okay.
Just just in the interests of time.
Then my other question is, do you think that a legal system is
something less Lewis? I am Luis.
Okay.
Yeah. I remember what the I and the m
stand for. But he's very good.
He's very interesting and I think he makes good sense out of
it. I had another source from
somebody less expert who lived in In Somalia for a fair while
and I could compare them and you had another question though.
Oh, yeah, I'm sorry. So do you do you think that you
can see is something not a society, can intentionally
adopt? And I'm thinking about you know,
the reasons why that were different legal systems
ostensibly is to try and figure out how we can improve our own
system. But when you're talking about
such fundamental changes, so I think the answer in practice.
Most of the time is that most of your legal system you inherit
from the past, but you can make changes.
So that the US for example adopted no-fault divorce in
various States, the u.s. Stopped enforcing damages for
breach of contract to marry and there have been various changes.
And often the changes are driven by somebody, or some group of
people who say look, this is clearly a better way of doing
it. They may be wrong.
Of course. But I think that's what
happened. So I think you can do that.
And maybe over an extended period of time, you can add have
changes that really mattered that.
For example, I've seen it argued that in theory, the u.s.
Basically abandoned freedom of contract over the last century
so that if I make a product and I only sell the people who
promise, not to, sue me, if it goes wrong.
That's not going to be enforceable agreement in
practice. However, I gather that to some
extent that's been reversed by making arbitration agreements
enforceable. That is to say that in, at least
some contexts. There are contracts, you could
not write and have enforceable under the legal system, but you
can by agreeing to arbitration with those as part of the terms
of the agreement. So that would be a case where
you might be able to work around as it were and Defacto and it.
Similarly. After all our whole criminal
system is a fraud that is to say the formal description of our
criminal system. We will get a trial by jury.
Well for felons, that's true of what.
Two percent of all felons that virtually all felony cases are
settled by plea Bargains, Navy that may be a good or a bad
thing. You can argue about that, but
that's the case. Where there was never a point at
which people said. Oops.
Sorry, trial, by jury doesn't work.
Let's, let's switch to something else, but But given the
difficulties of giving everybody a trial by jury.
There was clearly a pressure to, to maintain a way around it as
it were, and that developed to the point where it, where the
exception swallow the rule, so to speak.
So that would be terribly, interesting case to to me, where
you really had quite a large change in the system, which
happened, I think not really, is that there probably were some
people who argued for it, but not really designed, but, The.
I mean, I'm not really an engineer.
I'm really interested in understanding things and I will
let it die. Believe it.
Other people to hopefully use some of that understanding and
making the world a better place. Do you?
Do you have an opinion on whether or not the most
meaningful? Change comes from a positive law
situation or from bubbling up through the common law, you
know, organic interactions on the marketplace so to speak.
I don't think I haven't. I don't think I know enough to
answer that kind of question. Yeah.
The, but and sort of unclear to
what extent political changes aren't really organic to.
In the sense. They come from changes and
ideas. I was just, I was thinking about
that an entirely different context.
There's as you may know, there used to be a Blog called slate
star codex by a guy called Scott Alexander.
A very interesting blog that I spent a lot of time on and it's
now been revived under a different name for, but with the
same person doing it and he had an exchange recently with some
Buddy on the question of whether certain approaches to improving
the world where good or not and it was sort of trying to
distinguish between experts, figuring out what the right rule
was an imposing it and somehow having something evolve Up From
Below, but it was pretty fuzzy what the argument was about.
But it occurred to me to think about a real world example
because it was one that came up in what they were discussing.
Although they were discussing it now and not originally and
that's the auctioning off of the airwaves.
All right the idea. Via the standard system for the
airwaves for a long time. Was that a government regulatory
agency decides, which radio broadcasts are broadcasting in
the public interest and they gotta, like, give them the right
to broadcast and Ronald coase suggested, got it must by now,
be 60 years ago, or something like that, that it would make
much more sense to Simply auction it off.
Auction off the spectrum that it's true.
We had to scarce resource, but the way we usually handle scarce
resources, not government allocation, its Market
allocation. And at the time was obviously a
crazy idea. Nobody would ever do, maybe it's
not what they do. But the question was, when they
finally did it. Does that count as the experts
from above saying, Hi, here's this clever idea.
Let's impose it on the system or does that count on Ronald coase
60 years ago? Having said, let's put an idea
into the into the stream as it were.
That idea will work. Its way organically through the
economics profession, because it's an Idea that it's obviously
the right idea at any really good Economist and eventually lo
and behold it gets pregnant. So it's not always a clear
distinction, what you count is as sort of top-down versus
versus organic and similarly you think about this whole woke
isn't nonsense at present that's organic.
And the sense that somehow this weird new religion, spread
through the society and got a very powerful position.
But it's inorganic it as much as it then says.
Alright, well, thank you over the head if you say the wrong
things in effect or fire you or do something to you.
Anyway, other questions. Yeah.
Well, that's really interesting. But just just to make a comment
on that. One of the reasons I asked is
because I have done some studying, I think in my second
year in law school. I did some studying on customary
legal systems and one of the big things that comes up is that
well in in, I guess what we would call, the less developed
World, folks can't rely on the government to to enforce any
kind of legal system. So it comes up that they create.
You know, a lot of its community-based.
Well, whether you have tribe of Elders or anything like that, it
just as a matter of circumstance, but that's the
situation inside an American prison, too.
Yeah, you're inside an American prison.
You'd like to buy some heroin from another prisoner, who's
gotten it smuggled in. And for some reason, the prison
guards aren't willing to enforce the contract by which you agree
to pay for him next week. And so they developed their own.
Isms for enforcing those rules. That's part of what's
fascinating about, David's garvik's book describing that,
that, that, that mechanism. And of course, a lot of stuff in
a modern society, a lot of stuff.
He's in practice, enforced by Norms.
Not bylaws. So, that's really privately.
Enforced by forms of social pressure.
I, I like to say that there is no legal rule, that would
prevent me from teaching a class naked to the waist.
I don't be a stupid thing to do, because it would have negative
effects on my reputation. And then you think about how
Norms change and I like to specify the hypothetical.
But not actually hypothetical example of a brave Professor who
teaches his class in t-shirt, and cut off shorts and whatever
you kind of call the things you wear instead of shoes that are
rubber sandal kinds of things and he gets away with it.
And after a while, maybe some other people start doing that
sound Norms change. And that's a friend of mine at
George Mason, who behaves that way.
Now, it helps that he's also very productive, academic.
Therefore can get away with things like that.
So so Norms do sometimes change in interesting ways.
Have you ever found that that folks and other academics or
maybe duritz would scoff at the idea that we could learn
something from, you know, quote unquote more.
Primitive legal systems know that is, that may well be people
who think that, but I would guess that, if anything, the
sort of academic bias, he's are going the other way that, you
know, you're supposed to respect diversity and stuff like that.
And, you know, practice respect for diversity tends to be
limited to rather specific kinds of diversity of the you like.
But nonetheless, I think somebody might well object-- to
a particular example and think it was a bad. system, but I
don't think that the general idea of saying you could learn
things from other cultures, that sort of sounds, you know,
touchy-feely modern kind of fashionable views, but I think
it's also true that you can that I mean there are enough really
smart people in the past so that even though we've got this
puzzle about a w y IQ scores, a gradually crept over.
It's over time. I don't think it's believable
that the reason those systems are just had what's called.
He will lead them. Were too stupid.
And then I think, you know that some of them may be were stupid,
but I think I like to describe the Athenian system as the legal
system of mad Economist because It's sort of got multiple ideas
which might or might not work. But our clever ideas such as the
wave of finding out whether somebody is richer than you are.
And there are other examples of that in that legal system.
They had very elaborate mechanisms for making sure that
a juror never knew which case he was going to be on until the
last minute in order to keep people from bribing, the jurors
for example, and they do another other interesting things.
And I'm not particularly admirer of song.
Your relation or for that matter of Imperial China, but all of
them are human beings doing interesting things.
And I want to understand them and I think maybe some of the
human hubris of libertarian Theory says, that were always
trying to look to the past and say because a big objection to a
stateless society or the feasibility of it is like, okay
well point to when in the past we had a society that existed
without government. And so what you try to do is At
least from my perspective when I was a 20 in law school.
I was trying to look to find here.
Aha. I found it.
You know, this is the point where anarcho-capitalism
existed. However, I, you know, a lot of
times people will say, well, you know, why don't you move to
Somalia, because that's an anarchic system, and it was a
disaster which we have scholarship that kind of
underlines maybe the opposite. So they'll say, oh well, why
would you want to emulate? Emulate?
Small. Yeah, yeah.
Yeah, but but the answer, of course, is there a whole lot of
differences and Somalia is a great deal poorer than we are.
And they speak a language. You don't know.
And even that is in the case of small.
You as you probably know, the mess came, when England Italy,
set up a centralized democratic government for society.
They never had such a thing. But even when it was functioning
tolerably, well, it was still not nearly as nice place to live
is America. Is it the moment for a lot?
Of different reasons, I think people mostly don't appreciate
just how much better off. We are we being the developed
World in general. Not a particular part of it that
that the figure that McCloskey gives somewhere, which I think
is, right? Is that the real, the average
real income of developed world at present is 20 to 30 times?
What it was through most of history for the world as a whole
and I think for the globe is a whole of maybe 10 times,
something like that. So, You know, given a very poor
Society. It's not at all clear that a
modern set of sis institutions would have lasted for a month in
that Society. I mean, putting people in jail,
unless you're going to work them in jail is awfully expensive.
If that means somebody else's starving to them, which it very
likely would in a so that that imprisonment is not a very
common pattern in past as eyes much less common than in modern
societies and what you do have in, Prison minutes, likely to be
things like galley-slaves where you're actually using them as
labor and not just locking them up and feeding them, which is
what we mostly do. So, anyway, the yeah.
Is there any of these? It's very hard to say that in
their society and their circumstances, you could just
have come down. Let me go back to something else
that Ronald coase did cosas last work, which would have been
finished with as close to 100. He's no longer alive.
Unfortunately, was a book he co-authored with a Chinese
Economist on how China went capitalist.
And, as I read the book, one of the lessons, he draws was the
China. Who did better with what they
did, which was a sort of a trial and error blundering into the
system. Then if they had hired, lawyers,
hired economists for America, whether from Chicago or Harvard,
and done what they told them because they had to deal with
their society and its existing institutions and beliefs and all
the rest of it. And the result is the China did
much better than Russia or most of them.
I think any of the Eastern European countries.
Please accept those that had become communist late enough.
So they still remember it. Like, czechia.
For example, what a capitalist Society was like, but I think
that the other ones have not been as well as China did
relatively speaking and that now it's not doing as well.
Now and unfortunately Dangs no longer around sort of with a
hand on on things. But at least by coasters
account, it wasn't that the Chinese government said here's
what we would do is to the Chinese government.
We don't know what to do. So Wendy We will do things,
don't stomp on them and they do things and they work, let them
keep doing it and if they keep working maybe encourage them.
And that's how you got a semi privatization of Agriculture.
That's how you got. A lot of small firms in the
cities and a bunch of other things happening.
So it's a very interesting book. I would recommend the the coast
and Wang Wang Wang, I think is his name book on how you're
trying to make capitalist. The book is legal systems, very
different from ours. Mr. Friedman.
Thank you so much for your time is the best place to find your
work, David defragment.com? Yes, David D.
Freeman.com is my home page. It has links to the full text of
some of my books. Most of my articles.
It has a link to my blog which is got 15 years of essays on a
very wide variety of subjects. And so that Oddity on to be
useful. Mr. Friedman.
Thank you so much for your time. And thank you everyone for
watching. Keith Knight.
Don't tread on anyone and the Liberty weekly podcast.
Thank you.