The World Until Yesterday: What Can We Learn from Traditional Societies? by Jared Diamond Page A
Authors: Jared Diamond
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Daniel would go free, and she lacked faith in an inept justice system that had allowed a sexual predator with a history of such behavior to remain at large and continue his crimes.
Ellie’s case provoked a national debate on vigilantism, with her defenders hailing her for exacting her own justice, and her critics condemning her for doing so. Every parent will understand Ellie’s outrage and feel some sympathy for her, and probably most parents of an abused child have fantasies of doing exactly what Ellie did. But the view of the state of California was that only the state had the authority to judge and punish the abuser, and that (however understandable Ellie’s rage) state government would collapse if citizens took justice into their own hands, as Ellie did. She was tried and convicted of manslaughter and served 3 years of a 10-year sentence before being released on appeal based on jury misconduct.
Thus, the overriding goal of state justice is to maintain society’s stability by providing a mandatory alternative to do-it-yourself justice. All other goals of state justice are secondary to that main one. In particular, the state has less or no interest in the overriding goal of justice in small-scale non-state societies: to restore a pre-existing relationship or non-relationship (e.g., by promoting an exchange of feelings) between disputing parties who already knew or knew of each other and must continue to deal with each other. Hence non-state dispute resolution is not primarily a system of justice in the state sense: that is, a system to decide right and wrong, according to a state’s laws. Bearing in mind those different overriding goals, how similar are state and non-state systems of dispute resolution in their operation?
State civil justice
A starting point is to realize that state justice is divided into two systems, which often employ different courts, judges, lawyers, and bodies of the law: criminal justice and civil justice. Criminal justice is concerned with crimes against the state’s laws, punishable by the state. Civil justice is concerned with non-criminal injuries inflicted by one individual (or group) on another, and further subdivided into two types of actions: contract cases, resulting from breach of a contract, and often or usually involving money; and tort cases, resulting from injury done to a person herself or to her property through the action of another person. The state’s distinction between criminal and civil actions is gray in a non-state society, which has societal norms of behavior between individuals but does not have codified laws defining crimes against a formally defined institution, the state. Compounding the grayness is that an injury to an individual is likely to affect other individuals as well, and small societies are much more concerned than are state societies with those effects on others—as exemplified by thecase I related of everyone in a !Kung band being affected by and joining the arguments between an unhappy husband and wife. (Imagine if a judge in a California divorce court were to take testimony about how the divorce would affect everybody in town.) In New Guinea, essentially the same system for negotiating compensation is used to deal with the intentional killing of one person by another, the repayment of a bride-price after a divorce, and one man’s pig damaging another man’s garden (respectively a crime, a contract, and a tort in Western courts).
Let’s begin by comparing state and non-state systems for civil disputes. One similarity is that both use third parties to mediate, to separate the disputing parties, and thereby to promote cooling-off. Those intermediaries are experienced negotiators like Yaghean in New Guinea, leopard-skin chiefs among the Nuer, and lawyers in state courts. In fact, states have other types of intermediaries besides lawyers: many disputes are handled outside the court system by third parties such as arbitrators, mediators, and
Ellie’s case provoked a national debate on vigilantism, with her defenders hailing her for exacting her own justice, and her critics condemning her for doing so. Every parent will understand Ellie’s outrage and feel some sympathy for her, and probably most parents of an abused child have fantasies of doing exactly what Ellie did. But the view of the state of California was that only the state had the authority to judge and punish the abuser, and that (however understandable Ellie’s rage) state government would collapse if citizens took justice into their own hands, as Ellie did. She was tried and convicted of manslaughter and served 3 years of a 10-year sentence before being released on appeal based on jury misconduct.
Thus, the overriding goal of state justice is to maintain society’s stability by providing a mandatory alternative to do-it-yourself justice. All other goals of state justice are secondary to that main one. In particular, the state has less or no interest in the overriding goal of justice in small-scale non-state societies: to restore a pre-existing relationship or non-relationship (e.g., by promoting an exchange of feelings) between disputing parties who already knew or knew of each other and must continue to deal with each other. Hence non-state dispute resolution is not primarily a system of justice in the state sense: that is, a system to decide right and wrong, according to a state’s laws. Bearing in mind those different overriding goals, how similar are state and non-state systems of dispute resolution in their operation?
State civil justice
A starting point is to realize that state justice is divided into two systems, which often employ different courts, judges, lawyers, and bodies of the law: criminal justice and civil justice. Criminal justice is concerned with crimes against the state’s laws, punishable by the state. Civil justice is concerned with non-criminal injuries inflicted by one individual (or group) on another, and further subdivided into two types of actions: contract cases, resulting from breach of a contract, and often or usually involving money; and tort cases, resulting from injury done to a person herself or to her property through the action of another person. The state’s distinction between criminal and civil actions is gray in a non-state society, which has societal norms of behavior between individuals but does not have codified laws defining crimes against a formally defined institution, the state. Compounding the grayness is that an injury to an individual is likely to affect other individuals as well, and small societies are much more concerned than are state societies with those effects on others—as exemplified by thecase I related of everyone in a !Kung band being affected by and joining the arguments between an unhappy husband and wife. (Imagine if a judge in a California divorce court were to take testimony about how the divorce would affect everybody in town.) In New Guinea, essentially the same system for negotiating compensation is used to deal with the intentional killing of one person by another, the repayment of a bride-price after a divorce, and one man’s pig damaging another man’s garden (respectively a crime, a contract, and a tort in Western courts).
Let’s begin by comparing state and non-state systems for civil disputes. One similarity is that both use third parties to mediate, to separate the disputing parties, and thereby to promote cooling-off. Those intermediaries are experienced negotiators like Yaghean in New Guinea, leopard-skin chiefs among the Nuer, and lawyers in state courts. In fact, states have other types of intermediaries besides lawyers: many disputes are handled outside the court system by third parties such as arbitrators, mediators, and
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