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.
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?
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.
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.
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.
Jeffrey and taxman, I’d be happy to make exit easier, if that could be done at low cost.Thanks!
Jeffrey, what do you think prevents communities from acting outrageously today?They are constrained by fixed law, which they don't have the powerto change (except slowly and indirectly, and only if the political elitepermits).For example, if a jury drawn from some communityconvicted someone of jaywalking, today thatjury can't choose to increase the punishment beyond what thelaw permits, even if the jaywalker is of an unpopular ethnic group.Under your proposal, that particular safeguard would no longerhold - but this might well be balanced by having juries able tooverride outrageous laws from the political elites.
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.
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.
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.
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?
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.
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.
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.
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 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 refinementto allow (almost) anyone to leave rather than accept punishment(or, to put it another way, to largely cap punishments to be no worsethan exile)
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.