The Zimmerman Case

I was relieved by the verdict, since I did not see any basis for claiming that Zimmerman had been shown to be guilty beyond a reasonable doubt, which is supposed to be the standard of proof in criminal cases. But I find the commentary, mostly online, depressing. As best I can tell, practically everyone believes he knows what happened and argues from that belief. I may be the only person in America who does not.

As best I can tell, the evidence is consistent with Zimmerman's story--that Martin attacked him and was on top of him beating his head against the concrete when Zimmerman shot him. If that story is correct, the shooting was done in self-defense, so neither murder nor manslaughter. That is true whether or not the confrontation was a result of Zimmerman following Martin around suspiciously.

But while the evidence appears consistent with that story, I don't think it is inconsistent with other stories, in particular with a version according to which Zimmerman started the fight. If he started the fight and could have ended it by letting go of Martin and running away, then the shooting was criminal. Since that could have happened, comments that depend on the confident assumption that Zimmerman's story is true are unjustified, just like comments that depend on the opposite assumption.

But it appears that very few people are willing to accept "I don't know" as a valid conclusion.

Laws, Norms and Shopping Carts

You observe a stranger, in public, in possession of what is obviously stolen property of significant value. You might ignore it, but you also might call the police. 

Unless it's a shopping cart. The value of a shopping cart is about a hundred dollars and any that you observe outside the grocery and associated parking lot are almost certainly stolen. Yet, in practice, you do not call the police. My guess is that practically nobody does—or that the police don't come, or that if they come they make no effort to arrest the thief. The basis for that guess is casual observation—if there were any significant chance that walking off with a shopping cart would get you arrested, tried, and jailed with a sentence suited to the value of the cart, very few people would do it.

It strikes me as an interesting example of the tension between laws and social norms—or perhaps between laws and the commitment strategies that, as I have argued elsewhere, play a large role in enforcing legal rules. Part of the reason you do not react to the thief as a thief is that this particular form of theft is so common. Shopping carts are treated  by thieves, by observers of theft, perhaps also by police, as not quite  private property. The attitude is reinforced by the fact that they are designed to be treated as temporary public property within the store and its parking lot. The logic of our moral beliefs, like the logic of the law, implies no more right to walk off with a shopping cart than to walk off with a bicycle. But that is not how most of us feel, at least judging by our behavior.

One consequence of our ambivalent attitude is to make enforcement of the law by those most obviously affected, the stores whose carts get stolen, risky. Imagine that one such grocery chain made a point of getting the local police to arrest, try and jail people found with their carts. Stealing their carts might become less popular—but so would shopping at their stores. A good many customers, observing such a severe sanction for what they intuit as a mild trespass, might decide that they preferred to shop somewhere else. In practice, so far as I can tell, stores mostly deal with the problem in ways that do not depend on invoking their legal rights—sending people around to find and return abandoned carts or trying to design cart and parking lot in ways that making walking off with a cart more difficult.

James Clapper and the Issue of Selective Prosecution

As I pointed out in a recent post, James Clapper, the National Director of Intelligence, is pretty clearly guilty of perjury for lying under oath in Senate testimony. As I implied in that post, the chance that he will be charged with perjury, let alone convicted, is very close to zero. Perjury is a crime, crimes in our legal system are prosecuted by the state, so crimes committed by state agents on behalf of their employers are unlikely to be prosecuted.

The implication of that post was that this is a bad thing, but it isn't entirely clear. To begin with, in a world of limited resources and very broad criminal law, the government cannot, in practice, prosecute every crime it has reason to believe exists. Obama, at various points in the past, strongly implied that people selling marijuana in ways consistent with state medical marijuana laws would not be targeted by federal law enforcement, although their activity was in violation of federal law. While I would prefer that the federal law be abolished, that struck me at the time as at least a small step in the right direction, and I wish he had kept that particular commitment.

In Clapper's case the arguments would be somewhat different—the federal government has, after all, devoted substantial resources in the past to prosecuting similar acts of perjury by prominent private individuals. But it seems likely that Clapper believed, not unreasonably, that committing that particular crime was part of his job, justified by the need to keep secret what he regarded as an important set of intelligence operations. Refusing to answer the question would have made it reasonably obvious what the answer was. It is possible that he could have evaded the question in some less obvious way, having been notified in advance that it was coming, but perhaps he saw no way of doing so. Do we want to jail loyal Americans for serving their country to the best of their ability—when doing so requires them to break the law? 

As it happens, I raised a closely related question in my second novel. The context is a conversation between Prince Kieron, brother and heir of the king and royal official in charge of dealing with magery, and Ellen, my female protagonist, who has caught one of Kieron's agents engaged in an illegal use of magic and can prove it. 

The Prince remained silent for a moment, thoughtful.

"I remember the lecture and I concede the justice of your point. The King is not above the law. Nonetheless, I will not promise never to violate bounds or law myself, nor will I promise to instruct my servants never to do so. Law-breaking is a bad thing, whether by the King's servants or anyone else, but there are worse things, some of which it is my responsibility to deal with. I will promise not to violate bounds or law save in the most extreme circumstances, and to do my best to see that my servants will not, so that incidents such as the two you have described do not occur again. If my people are charged, as Fieras was, I will do my best to see that they get an honest trial.

I am sorry, but that is the most I can offer ...

Every Phone in America?

Some years back, in a chapter of my Future Imperfect, I mentioned a scene in an old movie ("The President's Analyst") where it turns out that the bad guys have been tapping every phone in America and suggested that it was now  practical to do it, with computers instead of people listening.  The main cost of wiretaps in the past was labor, and computers work cheap. 

Artificial intelligence is not yet good enough to understand phone calls, but it does not have to. Speech to text software can convert conversations to a machine readable form, keyword searches can spot the tiny minority of conversations of possible interest, and human beings can take it from there. I argued at the time ("my brief for the bad guys") that one could plausibly argue that until a human got involved, no warrant was needed, and at that point the success of the keyword search provided the legal justification to get one.

Which raises an obvious question: How good a prophet was I? Can any of my readers who have followed Snowdon's revelations and their consequences more carefully than I have say how much of my proposal was implemented by the actual bad guys? Were they using speech to text and keyword searches to decide what a human would look at? Did their legal justification include the claim that no warrant was needed as long as no human listened to, or read, the content of the call? Did they argue that, once a call of possible interest was spotted, the successful computer search provided the probable cause needed to justify a human search?

A Great Quote on Irish Law

I have just been reading a piece by the late D.A. Binchy, a leading 20th century scholar of early Irish law. One of the puzzles of that legal system is the presence of both elaborate institutions for private law enforcement and repeated references to kings (of very small kingdoms called tuaths) with courts and royal judges. An explanation offered by one modern scholar is that our legal sources were written during a time of transition, a shift from an almost entirely private legal system to a partly public one. Binchy's view, however, is that the king's court and judge were concerned with only a narrow set of issues related to the king, such as treason, with all conflicts between other people settled privately. 

In which context he writes:

“You may well ask at this state: If there was really such a lack of the organs of government—no legislature, no bailiffs or police, no public enforcement of justice—how was an ordered existence possible at all? Surely in that case there can have been no such thing as law and order, only arbitrary violence and the strong hand? Well, this was the conclusion reached by a fair-minded, scholarly (though I think sub-consciously prejudiced) historian, the late Goddard Henry Orpen, who held that prior to the coming of the Normans anarchy reigned in Ireland. This view was hotly challenged by Macneil, as those of you have read his great work “Phases of Irish History” will remember. It has always seemed to me that these two eminent scholars, despite their violent collision, started out from precisely the same suppressed premise: that law and order were impossible in any society where the State had not substantially the same functions as in the late Victorian era in which they both grew up! Orpen’s study of the Irish evidence convinced him that the Irish kings had nothing like these functions; hence, he concluded, Gaelic Ireland was anarchical. MacNeill, tacitly admitting the same suppressed premise, sought to disprove Orpen’s facts and to show that in each tuath law was promulgated, applied and enforced by the king’s authority. I disagree completely with MacNeill in this, but I dissent just as emphatically from Orpen’s conclusion. If comparative legal history teaches us anything, it is that legal order has in fact obtained among communities where, as in ancient Ireland, the State exists only in embryo. ...

Indeed, the main interest of Irish law for the student of early institutions is that it shows how a legal system based, not on State sanctions, but on the power of traditional custom, formulated and applied by a learned professional caste, could function and command obedience. Of course there was often lawlessness, particularly in times of revolt and disputed succession, but even in our modern society, with its public sanctions, laws are constantly broken—otherwise how would lawyers make a living? Far more important than the threat of State enforcement in the minds of a small, rural and patriarchal community was the veneration due to hallowed ancestral tradition.  …

… And in the absence of state backing [the Irish jurists] showed remarkable ingenuity in devising methods of procedure which would compel the average citizen of the tuath to keep to the rules. Perhaps, indeed, their very success hindered the evolution of public justice by diminishing the need for it.”

I disagree only with the sentence in the quote that I have italicized. It does not seem to have occurred to Binchy that if the private legal system contained "methods of procedure which would compel the average citizen ... to keep to the rules," then it may not have been dependent on the veneration due to hallowed ancestral tradition. 

A point of some interest to those of us who support anarchy, but not chaos, in a modern context.

What Went Wrong with Islamic Law?

As I have mentioned in some recent posts, I have been reading books on Islamic law as part of the research for a book I am writing on legal systems very different from ours. A number of scholars, most notably Wael Hallaq, argue that the traditional legal system, in which law was for the most part out of the control of the state, worked well for a long time but was destroyed in the course of the 19th and 20th centuries, leaving modern Muslim countries with a system of law made and controlled by the state, even if based in part on the traditional rules. 

Their argument is obviously relevant to current controversies, since if correct it implies that although "fundamentalists"  claim to want to return to Shari'a, what they are actually proposing is something quite different, a legal system that takes some of its rules from traditional Islamic jurisprudence but rejects the central features of the traditional system. But the argument is also relevant to broader and, to me, more interesting questions. One of them is why, if those scholars are correct, a system that functioned, and functioned well, for more than a thousand years eventually vanished. 

Part of Hallaq's answer is that what destroyed the non-state legal system was the rise of the nation state. In the traditional system, legal rules were deduced by schools of legal scholars, based on religious sources—the Quran and the traditions of what Mohammed and his companions did and said. The conclusions of the schools were transmitted to individuals and judges by muftis, private experts in the law whose authority was based on reputation, not government appointment. Only the final stage of the process, the trial where the legal rules generated by the scholars were applied to the facts of an actual controversy, involved an official, the judge (qadi), appointed and paid by the state.

In Hallaq's view, rulers, frequently Turkish princes ruling non-Turkish populations, were mostly willing to give the legal experts a free hand in interpreting law in exchange for support of the rulers' legitimacy. And the existence of multiple schools of law, four of which have survived in Sunni Islam, meant that individuals had a substantial degree of choice over the legal rules that applied to them. Two people who wanted to enter a contract permitted according to one school, forbidden according to another, could  contract in a court of the former school and have any subsequent disagreements adjudicated under the rules of that school. 

Details varied from time to time and place to place—in some times and places one school was to some degree dominant—but a large city was likely to have courts for all four schools, plus additional courts for disputes between Christians, between Jews, or between Shia Muslims, with legal rules to determine what court ruled in disputes between adherents of different schools or different religions.

The part of Hallaq's account that I find least convincing is his attempt to blame the eventual changes on western influence, direct in the case of Islamic populations under western rule (India, Indonesia, Algeria), indirect elsewhere. The reason I find it unconvincing is the case of the Ottoman Empire.

Hallaq argues that, although the Ottoman Empire was never a colony, it was under severe western pressure during the 19th century, pressure responsible for a series of changes that converted the traditional system into one in which the state controlled both the content of the law and the training, employment, and promotion of legal scholars. The problem with that story is that, so far as I can tell, the relevant changes go back much farther than the nineteenth century, back to a time when the Ottoman Empire was a successful, expanding state. In particular:

The Ottomans favored one school of law, the Hanafi. In the core area of the Empire, law was Hanafi law. In areas annexed by the Ottomans where other schools had been important, their courts survived, but their judges were deputy judges, and the Hanafi chief judge had to approve their verdicts. Over time, more and more legal scholars shifted to the Hanafi school, since that was where the money and power lay. Further, while the traditional system allowed a judge of a school some freedom in choosing among alternative legal interpretations within that school, the Ottoman Sultan had, and sometimes used, the power to order judges to follow a particular Hanafi rule, not necessarily the one considered best supported by Hanafi scholars.

The Sultan also had the power to make legal rules called kanun, creating a legal system running in parallel with the traditional fiqh, the interpretation by the schools of the legal implications of Shari'a, divine law. Kanun could be inconsistent with fiqh and overrule it. Thus, for example, all four schools held that loans at interest were forbidden. Kanun specified maximum legal interest rates.

In the traditional system, scholars were trained in and employed by madrassas, legal schools supported by endowments, usually provided by wealthy patrons in the distant past. The Ottomans took control over that system, putting it under the authority of a state appointed Chief Mufti.

All of this happened long before the 19th century, so it is hard to see how it can be blamed on western influence. Further, the changes in the Ottoman Empire parallel the rise of absolute monarchy in the west. Compare the Sultan's seizure of control over the system of religious law, complete with the Sultan's claim to the Caliphate, with Henry VIII's seizure of the English church, putting himself in place of the Pope at its head. Compare the Ottoman annexation of waqf, endowments used to, among other things, fund religious education, with Henry's annexation of the monasteries.

My conclusion is that Hallaq et. al. may well be correct in arguing that the rise of the nation state destroyed the traditional Islamic legal system. They may be correct that that traditional system was, on the whole, a pretty good one, as legal systems go, although I suspect they exaggerate how good it was. But the ultimate cause was some exogenous factor operating on both the west and the Islamic world, with similar effects on both.

The King's Friends

England in the 18th century had, on paper, essentially the same legal system we do, with its distinction between criminal and civil law—that, after all, is where we got it from. There were, however, some large differences in practice. One of them was that, since there were no police and no public prosecutors for ordinary criminal cases, criminal prosecution was private, in law by any Englishman, in practice usually by the victim or his agent. For details, see my old article Making Sense of English Law Enforcement in the 18th Century.

In discussing the reasons for the lack of state prosecution of crimes—which are, in theory, offenses against the state—one explanation I have offered is that state control of prosecution means that the King's friends can get away with murder, a problem that might have appeared particularly serious after the political conflicts of the previous century.

We are now observing a modern example of the problem. James Clapper, the National Director of Intelligence, has conceded that his answer to a question in Senate testimony was "clearly erroneous." The question was one he had been given in advance, and he was subsequently given an opportunity to correct his answer. The usual term for a false statement made by one who knows it is false is a lie. The legal term for such a statement made under oath, as this was, is perjury.

Any guesses how likely it is that Clapper will be indicted?