Renew Forager Law?

Foragers lived close, in groups of a few dozen. They slept close, and hunted and gathered in groups. They knew each other very well. So when one had a complaint against another, “law” was basically the rumor mill. The group would discuss the problem, taking everything they knew about the parties into account, form an informal consensus on what to do, and then do it. Punishments ranged from warnings to cold shoulders to exile to death.

Farmers developed stronger social norms, and then created formal law to standardize those norms on larger social scales. But since we seem to be returning to foraging ways in many ways as we’ve become rich, it is interesting to consider adopting a more foraging style law.

Imagine that whenever anyone had a complaint about another, we convened a jury of a dozen to study the issue full time for an entire year. (Forget about the cost of this for a moment, and just consider the kinds of decisions that would result.) This jury would have a budget to hire experts of various sorts, could interview all the people involved, and browse ubiquitous surveillance videos. They would have complete discretion to offer any punishments or rewards they thought appropriate; any precedents or written rules would only be suggestions.

Yes, you might want to discourage jurors taking bribes, favoring folks like themselves, or deviating too arbitrarily from precedent, but such complaints would be dealt with through exactly the same system – yet another jury would be convened to deal with each complaint. Same goes for complaints on excessive complaining.

Now let’s deal with the costs. Given a complaint, let’s convene such a jury rarely and randomly, perhaps as one in a thousand times. Before we “roll the dice” to see if a jury will be convened, let us have an open betting market on the jury’s decision. If we happen to convene a jury in this case, the bets will pay off, and punishments will be enacted, according to that decision. If we don’t convene a jury, the bets are called off and we’ll randomly select a punishment using the probability distribution given by the betting market odds.

OK, now that we have the outlines of a workable system, the most interesting question is: would you want a legal system like this? Even setting aside the issue that this might work especially badly for very specialized or technical complaints, I think most folks are rather uncomfortable with the idea. Which just shows how deeply we have internalized certain key farmer values.

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  • Can you run a complex market economy with a justice system that unpredictable?

    • Matt

      I would also wonder how safe people would feel in an unpredictable legal system. Would a large society of people have enough confidence in the system to trust it with their problems and not simply try to enforce their own rules and laws?

  • Khoth

    Your proposed system has justice decided by a 1/1000 chance of twelve random people I don’t know, or a 999/1000 chance of being decided by thousands of people I don’t know who are trying to predict what twelve people I don’t know would do.

    What has objecting to that got to do with internalising farmer values?

    • Well, to the extent that what Robin terms ‘farmer values’ connotes many/most of the desirable and healthy inventions of modern Western civilization such as ‘rule of law’, ‘fair trials’, and similar, it makes perfect sense.

  • GNZ

    Aside from fundimental issues with juries (Ie you are giving up the opportunity to have experts in favour of a set of people, including some who have no tallent at all for the job even if they think they do) it sounds very difficult to prevent people gaming the system in one way or the other and as a result destroying confidence in it.

    I dont see how you can put procedures in place to control that without crippling your own market or the ability to adress more ‘minor’ issues.

  • Khoth

    I don’t think there’s enough incentive to actually investigate a case when betting. People who are involved will ignore the facts and bet the way they want the result to go, in the hope of manipulating the market. There’s only a 1/1000 chance of a bet actually being counted, so the costs of a detailed investigation will almost always be wasted, so people will just know that (say) 87% of domestic abuse cases result in a conviction and bet based only on that rather than on the facts of the case (which would be too costly to discover).

    • Buck Farmer

      Hear hear!

  • Jeffrey Soreff

    Setting aside the market part of the proposal,
    I think that using juries to essentially set policy would be at least
    worth trying. As the system stands now, there are very few ways for
    outrageous laws to be thrown out. This proposal would drag legal
    action back to something closer to the general standards of the
    community. Balanced against this, the community itself can act
    outrageously, and we’d see more of that, with less constraint from

    I think we’d see fewer cases of the RIAA trying to string
    someone up for unauthorized copying, which I think would be a good
    thing, but we’d see more cases of the jury stringing someone up
    for being in an unpopular ethnic group, which I think would be
    a bad thing.

    • Psychohistorial

      “There are very few ways for outrageous laws to be thrown out.”

      This isn’t quite true. There a lot of ways for cases to be thrown out. Summary judgment is a particularly common way – likely more common than actual resolution by jury verdict. This does tend to require expensive discovery beforehand, because the court cannot divine when most cases are frivolous without actually seeing some facts. It’s unclear why a jury would be less sympathetic to frivolous cases than a judge would be. It’s an American value that people have a right to be heard in court, and we err on the side of allowing in frivolous lawsuits to avoid keeping out meritorious ones.

      Your problem with the RIAA and whatnot is not a problem with the legal system, it’s a problem with the law. Laws favoring copyright holders are, mostly thanks to the RIAA, extremely forceful. It is generally more efficient to fix one law than it is to revise the legal system. The vast majority of law is not manifestly unjust, and the system applies that law reasonably well.

      • Jeffrey Soreff

        I was primarily arguing about the difficulty of removing outrageous law, not frivolous cases. I am not convinced that “the vast majority of law is not manifestly unjust”. I pointed to excessively strong copyright laws, but I see them as just one class of a broad range of unjust corporatist laws. Prof Hanson’s proposal would give the jury

        complete discretion to offer any punishments or rewards they thought appropriate; any precedents or written rules would only be suggestions.

        This would, in large part, replace law as well as the legal system.
        I think it would be worth a try. I would add Taxman’s refinement
        to allow (almost) anyone to leave rather than accept punishment
        (or, to put it another way, to largely cap punishments to be no worse
        than exile)

  • ad

    Which just shows how deeply we have internalized certain key farmer values.

    Perhaps it just shows how deeply people dislike the idea of rolling out some radical change in the nature of the justice system without trying it out on a small scale first.

  • Psychohistorial

    Ignoring most of the major problems (which you admittedly acknowledge) it’s worth noting that the betting market obviates the jury.

    The vast majority of people will get the punishment a betting market thinks a jury would determine, without the vast majority of evidence that the jury would have available to it. The massive expenditure on those few juries would not meaningfully carry over to non-jury cases, because the same information would not be available.

    In particular, markets are only useful when information is disperse. If I get in a fight with my girlfriend, the only people likely to know anything are me, her, and perhaps some close friends or neighbors. This is not enough people for a market to manifest efficient outcomes.

    The consistency issues are also enormous. This proposal would essentially let people make up laws and ask the state to intervene in personal matters. It would also allow people to data-mine to find an accusation that they would likely be able to make stick.

    Also, since the betting markets are generally going to have a strict limit at “no punishment,” their average for any given accusation would probably be greater than zero. This means any accusation would likely generate punishment. Also, given the remote chance of actually having bets called in, rich people could abuse this system by bidding up punishments for people they don’t like (or reciprocally for people their friends don’t like). The risk of having bets called in is very low. There’s very, very little that is desirable about this system.

    But you get an A for inventiveness.

  • Ben

    It’s reasonable to think that this system could, over time, develop to become both highly accurate/just, and very cost-effective. Even the objection about specialized and technical complaints can be overcome if the super-jury has sufficient resources.

    This is a really interesting idea. It’s also a new idea. People are generally made uncomfortable by new ideas. This is one worth further exploration.

  • michael vassar

    I don’t think that your proposed jury system greatly resembles forager law, but I do think that in a society more saturated with data, rumor as the dominant form of justice is a very likely equilibrium. Think of dog-shit lady as an early test case. Today its hard to get a job if you have a criminal record. Will it eventually be difficult to get a job if you mildly annoy lots of people by driving too aggressively, as a result of them all feeding their displeasure into data-aggregation systems?

  • tylerh

    I am missing the basic logic: the entire post seems to be a non-sequitur to me. to wit:

    1. Foragers functioned in tight social groupings.
    2. This tight social grouping precluded the need for formal law within the forager group.
    3. Modern folks who become rich are tend towards forager ethics.


    forager “law” will work for modern rich folk.

    Absent evidence that modern rich folk are adopting forager social conventions, namely existing almost entirely in a small, intense isolated group, there is no logical reason to adopt the conclusion.

    Give that one of the first things the rich due is segregate their households from their peer/family group, and also that most economic constructs for modern rich folks have the family and the economic peer groups be disjoint (unlike farmers), modern rich folks seem to need MORE formal law under the premises present above.

  • Taxman

    One very impt divergence from forager justice in your experiment:

    If accused doesn’t like justice decision in forager society, he can easily flee all but the most serious charges.

    An overly harsh decision can be overturned by simply going to the next tribe. Unless your former tribe has the will to hunt you down – and it only will do so if the charge is especially serious and the community feels your guilt is assured – you can simply evade the punishment.

    Your example doesn’t provide for the “release valve.”

    With a mechanism such as this, I’d gladly choose it over current system.

    • Taxman

      I forgot the converse:

      An especially lenient ruling could presumably easily be overridden in forager society by strong willed relatives.

      Both forager justice “release valves,” which I suspect most people intuitively support, could be incorporated into your example.

      Suspect that with these changes, more would support.

  • I wonder what impact this system would have on the group discrimination factor. I could see it going both ways:

    Increased effect–Bettors would have the power to fund their discriminatory biases by tilting the odds of conviction against members of a particular group.

    Decreased effect–The incentive to “get it right” would discourage bettors from betting based on personal tastes, unlike a regular juror who loses no skin by unfairly punishing a defendant.

  • What you describe sounds like our actual legal system, especially the civil law part of it, where new applications of the general idea of wrongs are constantly developed. The thing real law has your proposal doesn’t mention is the idea of consistency: the record of all previous cases can be appealed to to influence how the current case will be decided, and the judges have a positive duty to honor precedent under a broad range of circumstances.

    Have you discussed these ideas with any lawyers with a philosophical bent? I am certainly not a lawyer, but I have read Peter Huber on law and your approach seems more naive than it needs to be. It could be that is because I have an idiosyncratic understanding of the law in which case I apologize.

  • I’ve heard that many of the old “classical liberals” placed a lot of faith in juries to protect citizenry against reckless government. Now grand juries are regarded as no obstacle for the prosecution and there are calls to make prosecutors & judges less accountable to voters so that they don’t compete on punitivity.

    • Doug S.

      Grand juries were intended to be a barrier to private prosecution, which used to be far more common. Professional, government-employed prosecutors were extremely rare when the U.S. Constitution was written.

  • Mark

    Is Robin arguing that it was farmer / forager lifestyle modes which directed the nature of the judicial system? An alternative thesis is that it is was just rather inefficient to be judged by your peers as population numbers grew. And – equally – inefficient to formalise due legal process for only 40 people.

  • Pangolin

    Since a significant point in this forager/farmer dichotomy is that we are returning to forager ways, how about we only apply this form of law when the actual rich are the defendants?

  • Amasa

    Robin, aren’t you assuming that a person who has internalized forager values would NOT object to trial-by-betting-market? Such a system was never implemented or approved in any forager society I know of. Thus, whether or not a person approves of such a system is not an adequate test for which alternative set of values that person has adopted.

  • Amasa

    I suppose you might consider a betting market to be analogous to an informal consensus, but that is far from settled. Key differences: monetary incentives, personal knowledge of the accused, face-to-face deliberation with your fellow arbitrators.

  • Will and Matt, I don’t see that this system would be less predictable, in terms of expected punishment, than our system. Asking random people what they think would give a decent estimate of typical outcomes.

    Khoth, you also don’t know the judges who make decisions today, and you don’t seem to understand prediction markets.

    GNZ, people can also game today’s system. Gaming can be punished by meta-juries evaluating juries.

    Jeffrey, what do you think prevents communities from acting outrageously today?

    Jeffrey and taxman, I’d be happy to make exit easier, if that could be done at low cost.

    ad, I didn’t say anything about the rate of deployment vs. trials.

    Psycho, it is just not true that “markets are only useful when info is dispersed.” Negative punishments could be allowed.

    tyler, foragers were in small groups, but that doesn’t define them; they had other stable features.

    mwengler, if meta-juries punished inconsistency and ignoring precendent, jurors would have incentives to avoid those things.

    Amasa, yes I don’t see a strong conflict between forager values and using cheap betting market estimates as a proxy for expensive jury decisions.

  • Jeffrey Soreff

    Jeffrey and taxman, I’d be happy to make exit easier, if that could be done at low cost.


    Jeffrey, what do you think prevents communities from acting outrageously today?

    They are constrained by fixed law, which they don’t have the power
    to change (except slowly and indirectly, and only if the political elite
    For example, if a jury drawn from some community
    convicted someone of jaywalking, today that
    jury can’t choose to increase the punishment beyond what the
    law permits, even if the jaywalker is of an unpopular ethnic group.
    Under your proposal, that particular safeguard would no longer
    hold – but this might well be balanced by having juries able to
    override outrageous laws from the political elites.

  • Jim Babcock

    Where are the resources for performing investigations supposed to come from in this system? Betting correctly is only profitable if there are other parties (sheep) betting incorrectly. If you’re a private investigator trying to make money from a prediction market, you can’t spend more on investigating a crime than the sheep are putting into the market. And it seems obvious that that won’t be enough to perform a proper investigation. You could pump money into the markets directly, by adding a “bounty” to the payouts – but then you might as well forget the whole prediction market idea and use that money to hire detectives, and use the super-juries to check their work, give bonuses and fire.

    There’s also extremely obvious potential for abuse. You can use money to buy a guilty verdict for someone you don’t like. That’s legalized assassination. There are issues with search warrants (private investigators can’t get them and we don’t want them to be able to), and the exclusionary rule (evidence obtained without a necessary search warrant can’t influence a verdict). It creates a monetary incentive for any third party to hide evidence, so that they have an advantage over other bettors. It creates monetary incentives to frame people (make the jury confirm your prediction of guilt) and to destroy evidence (make the jury confirm your prediction of innocence) for parties who would otherwise be uninvolved. All of these can be done undetectably or with plausible deniability, so no, using a meta-jury will not help. It also means that courts will miss any issues more complex than guilt vs innocence, but that’s a minor problem by comparison.

    These problems are fundamental; I don’t think they can be fixed within the framework given. Since the idea is not, in fact, workable, the fact that people are uncomfortable with it is not evidence of anything.

  • Michael Kirkland

    Philip Howard explains why this is a bad idea far more articulately than I could:

    Philip Howard: Four ways to fix a broken legal system

    It would be paralysing. People would be bullied not into being better members of society, but to avoiding any interaction that could potentially be complained about.

  • D Bachmann

    Rather than showing “how deeply we have internalized certain key farmer values”, being uncomfortable with the proposed scenario shows that it does’t actually model what it is supposed to model.

    The prospect of being judged by random strangers, whom you will never get a chance to judge in return, isn’t equivalent to being judged by a small group of people who you spend most of your time with and on whom you depend for your survival the same way they depend on you.

    A more realistic model might be, you get judged by the twelve people you happen to spend most time with. This will include your family, but also your co-workers, your drinking-buddies, etc. And most importantly, the people judging you will be aware that next time they are being judged, the person they are judging now will be on the jury, and everyone involved will remember all their actions.

  • josh

    How do you know what forager law was? Didn’t they have chiefs and shamans and ancestors and chicken bones and voodoo spirits and all that stuff? Where does this idea of consensus law come from?