Defunding the Police

real-world law enforcement without police

A few years ago it was a popular slogan, mostly without details. As best I could tell, none of the people using it were familiar with real world examples of law enforcement without a police force, of which there are many. Here are some.

England in the 18^th Century

The English police force was created by Robert Peel in the early 19^th century; prior to that criminal law was prosecuted by the victim. The government provided courts, enforced their verdicts and, for some but not all offenses, offered rewards for successful convictions. Constables were unpaid¹ and played only a minor role in law enforcement. A victim of crime who wanted a constable to undertake any substantial effort in order to apprehend the perpetrator was expected to pay the expenses of doing so. The nearest equivalent to modern police were thieftakers, private investigators who supported themselves by public rewards for convicting thieves, private rewards offered by victims, and rewards for the recovery of stolen property. Jonathan Wild, self-appointed Thieftaker General, supported himself for a decade by a combination of revenues from thieftaking, rewards for the recovery of stolen property and income from the large-scale employment of thieves. He was convicted and hanged in 1725 but lived on in fame as the central figure of a book by Defoe and, in the persona of Mr. Peachum, of Gay’s Beggar’s Opera.

Their system for prosecuting crimes was similar to ours for torts; under both, the victim initiates and controls the process by which the offender is brought to justice. One difference is that if the tort plaintiff prevails, the tortfeasor is required to pay him damages. If the victim of a crime won his case, the criminal was hanged, transported or pardoned. The damage payment in civil law provides the victim with an incentive to sue. What incentives to prosecute were there in eighteenth-century criminal law?

There were at least three. One was deterrence. Someone likely to be a repeat victim of theft could prosecute one offender to deter the next. Potential victims not sufficiently subject to crime to establish a reputation for prosecution could pre-commit by joining an association for the prosecution of felons, paying annual dues to fund prosecution of anyone who offended against a member; the membership list was published in the newspaper for the felons to read.

A second incentive to prosecute was to recover stolen property. A third was to be paid by the criminal to drop the case, to compound the felony — conviction did not pay damages but an out of court settlement could. Doing that was illegal but pretty clearly happened.

For much more on that system, see the chapter on England in the Eighteenth Century in my Legal Systems Very Different from Ours.

Fully Private Enforcement

In the English system, catching and prosecuting the criminal were private but punishing him was done by the state. My favorite example of a still more private system, from about a thousand years ago, is saga period Iceland. There was a law code and a system of courts but no executive branch of government to enforce the verdict. If the court assessed damages and the defendant didn’t pay he was outlawed; It was legal to kill an outlaw, illegal to defend him. If the crime was one for which the penalty was outlawry it could be avoided or modified by an out of court settlement.

This sounds at first like a system of might makes right but it was not that simple. A man who refused to pay his fines or offer a reasonable settlement and as a result was outlawed would probably not be supported by as many of his friends as the plaintiff seeking to enforce judgment, since in case of violent conflict his defenders would find themselves legally in the wrong. If the lawbreaker defended himself by force, every injury inflicted on the partisans of the other side would result in another suit and every refusal to settle and pay would pull more people into the coalition against him.

There is a scene in Njal Saga that provides striking evidence of the stability of the system. Conflict between two groups has become so intense that open fighting threatens to break out during the Althing, the annual assembly. A leader of one faction asks a benevolent neutral what he will do for them in case of a fight. He replies that he will draw up his people, armed, on one side. If the leader’s men are losing they can retreat behind his, ending the fight. If they are winning, he will break up the fight before the winners kill more men than they can afford.² Even when the system seems so near to breaking down, it is still assumed that every enemy killed must eventually be paid for. Each man killed will have friends and relations who are still neutral and will remain so if and only if the killing is made up for by an appropriate wergeld.

Suppose you are an elderly man with no powerful friends and someone kills your son. He owes you a hundred ounces, wergeld for a free man, but how can you collect — if you try to sue him you might get beaten up, perhaps killed, on your way to the court.

You have a neighbor with four strong sons and lots of relatives and allies — and your claim is transferable. You transfer it to your neighbor and he collects the hundred ounces. He may give some of it to you, he may keep all of it as his payment for collecting it, but at least the killer has paid for his crime, which is all a victim gets in our criminal system.

There are at least three reasons why your neighbor, or someone else with sufficient resources to prosecute the case, might take it over. One is to collect the money. One is because the man the case is against is someone he wants a legal excuse to act against, an enemy in some ongoing conflict. One is that he wants the status of successfully defeating a powerful opponent. The last shows up in a later private enforcement system on the other side of the Atlantic, that of the Commanche Indians.

Iceland and the Commanche are two examples of a legal system that has functioned in a variety of societies through time, arguably the foundation on top of which later legal systems were built. I call it Feud Law, discussed it in an earlier post. The basic rule is that if you wrong me you owe me damages. If you don’t compensate me I am entitled to use force against you. There are a number of problems that must be solved to make that a workable legal system but they have been solved, sometimes in different ways, in a number of past societies.

Not only past societies. The Rominchal, the largest Romani group in Britain, settle their disputes with an informal system that I like to describe as a primitive version of the Icelandic system of a thousand years earlier. Patent conflicts among modern high tech firms today arguably have much the same logic. For more details on Iceland, the Commanche, patent feud and much else see my Legal Systems Very Different from Ours.

Law enforcement without police is possible, as these examples show. I doubt it was what the people in the Black Lives Matter movement who wanted to defund the police were thinking of.

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1. Starting in 1792, a few constables associated with magistrates’ offices in London received a small salary while supporting themselves in part on reward money and, in some cases, a second profession: “One is a coal merchant, another a glazier, and another a green grocer.” Report from the Committee on the state of the police of the metropolis: with the minutes of evidence ... and an appendix, containing abstracts of the several acts now in force for regulating public houses, also, the Proceedings of the Common Council of the city of London for clearing the streets of vagrants, prostitutes, idle and disorderly persons. 1816. London, Printed by and for W. & C. Clement.

2. The Complete Sagas of Icelanders. Reykjavik: Eiriksson Publishing III, 177, Njal’s Saga. In an earlier passage in the same saga, 84, Gunnar responds to his brother Kolskegg’s suggestion that they pursue their defeated attackers: “Our purses will be empty enough by the time the ones already lying dead have been compensated for.”