Article by Saul Levmore
Ancient codes and customary laws have a great deal of subject matter in common with one another and with contemporary legal systems. It could hardly be otherwise. Any system of rules that seeks to regulate behavior or resolve disputes in a community that is too large to rely solely on informal sanctions, but that is large enough for its rules to have been recorded in a way that allowed survival to the present day, must deal with murder, theft, accident prevention, insolvent debtors, and other circumstances in which, for various reasons, purely private agreements and enforcement mechanisms are likely to be inferior to more formal rules and arrangements. Indeed, nearly every legal system of which we are aware, from ancient Babylon to our own, not only contains rules about murder and theft but also deals with inheritance, marital obligations, and those mundane matters that are the stuff of private law.
Traditional comparativists, be they lawyers or philologists, explain uniformity among legal systems as a product of direct borrowing, imposition, or common inheritance. Most anthropologists seem more flexible and sophisticated in their willingness to explore parallel evolution, comparable cultural adaptation, and even similarities in social problems and institutional functions across different societies. But it is rare even for anthropologists to compare systems that are geographically remote, and it is unusual for lawyers and philologists, at least, to compare systems that did not overlap in time and that are unlikely to have shared a common influence. Although most comparativists seem to shy away from functional or behavioral explanations of legal and other institutions, they would probably explain variety among the rules of different legal systems as the product of randomness, or as reflecting distinct cultural features or ancestry. Similarly, they would typically describe uniformity among the legal rules of different societies as revealing common roots or as accidental, especially when the uniformity does not seem ‘unusual.’ Thus, if a thief must pay double damages in systems A and B, but nine times the value of the object stolen in system C, there is probably nothing remarkable at issue. We would expect every society to regard some things as personal or private property, so that the concept—as opposed to the specifics—of theft might be borrowed from a neighboring or conquering civilization but might just as well be developed in isolation. There is nothing so remarkable about multiple damages as to indicate borrowing between A and B. Similarly, C's rule may reflect a different degree of concern about the same problem that confronted A and B; it would be interesting to know, for example, whether the terrain or tribal structure of C was such that thieves were relatively difficult to catch so that greater penalties were necessary ex ante to deter thieves. Only if two rules are both unusual and identical, either in their form or substance, is there reason to search hard for a common ancestor or common cultural feature. There are, however, few such rules, and I am aware of no extraordinary examples of such ‘unusual uniformity’ among systems that are geographically or chronologically far apart.
In this Essay, I introduce an alternative or supplementary explanation of variety and uniformity in legal systems. I begin with a belief or conjecture that many legal rules serve to channel behavior and I argue that we should fine more uniformity across legal systems when theory tells us that a rule matters. For example, since it is easy to predict the deterioration of the social and economic fabric of any society if there are no deterrents to theft, we should expect to find thieves liable at least for what they have taken, and probably more. For many of the same reasons, we should expect negligent behavior to the discouraged as well. To be sure, modern constructs such as workers' compensation systems and the New Zealand Accident Compensation Act decline to rely on the tort system to deter negligent behavior. But these developments are accompanied by regulatory and other rules that serve to penalize and deter negligent acts. In fact, although it is easy to quibble over the definition of uniformity among penalties, I know of not a single legal system that fails to discourage theft and the negligent infliction of harm.
On the other hand, there are other legal rules that are not compelled by behavioral effects and and realities. Many procedural rules fall into this category; it is unlikely, for example, that a society would undergo great change simply by altering its rules governing the admissibility of certain kinds of evidence or the number of persons contained on its juries. It is therefore easy to predict that such rules will not be uniform in different societies because such uniformity would be the product of happenstance (or detailed imitation). More interestingly, some fundamental substantive rules fall into the category of uncompelled rules. In this Article, I discuss one of the most familiar of these rules, the choice between strict liability and negligence in tort law.
Substantial literature exists on the difference, if any, between liability standards. For example, if T saves his $500 boat from certain destruction by taking a fifty percent chance with V's $400 dock—and actually destroys the dock—then, under a negligence rule, T will presumably not be liable. If the situation should repeat itself, T will have no reason to do anything differently; he will again attach his boat to V's fragile dock. And even if a rule of strict liability prevails and T must pay V $400 because he has ‘caused’ V damage, T will still dock because an expected loss of $200 (fifty percent of $400) is more attractive than the certain loss of a $500 boat. The difference between the two rules is one of relative wealth between T and V and, perhaps, of their respective ‘activity-level effects'; a strict liability rule will probably lead to more dock-building in the long run. The important point is that, as far as immediate behavioral effects are concerned, both negligence and strict liability rules discourage the sacrifice of, say, a $3,000 dock to save a $500 boat, but do not discourage the sacrifice of a $400 dock for this same purpose.
In studying different legal systems, we might therefore expect to see the adoption of a negligence rule in some systems, the use of a strict liability rule in others, and even the adoption of something in between in some systems, for a nonnegligent T would still continue to dock in an efficient way even if he had to pay some portion of V's damage. In short, we can look for uniformity when the rules matter in a direct behavioral way, and variety among rules when they do not matter. To be sure, the details of this variety may be a product of cultural influences, attitudes towards wealth distribution, or even intentional attempts to affect activity levels, like dock-building. For the most part, however, I shy away from explaining these details and seek instead both to demonstrate the extent of this variety and to argue that the location of this variety is no accident.
In order to demonstrate the remarkable degree of variety in the tort area and the uniform deterrence of negligence acts, I have focused on material that has survived from ancient legal systems. Although ancient legal systems obviously could have influenced one another, it is more useful to compare old codes far enough apart to suggest independent origins than to compare modern legal systems that almost necessarily share influences. My use of these materials necessitates a warning that I must issue at the outset to those unfamiliar with the literature of comparative law, philology, or anthropology: it is impossible to be confident or complete in our theories about the meanings and reasons behind primitive laws. Some rules did not survive. It is hard to know whether those that survive represent codifications of customary practices or reflect a conqueror's innovations. Most importantly, without firsthand experience or extensive contemporary reports, it is difficult to know whether rules are fact-specific or illustrative. A code which calls for A to reimburse B for negligently allowing B's fields to be trampled by animals may or may not mean that A is also liable if B's house is damaged as a result of A's negligence. Given that virtually all that survives from early legal systems is in the form of vignettes, or descriptions of specific circumstances (such as trampled fields) accompanied by rulings, this is a serious ambiguity. Only a very modern lawmaker would announce that ‘a negligent actor must pay.’ As will become clear, my own view—influenced by some faith in human resourcefulness—is to expect rules to be illustrative. But some commentators simply do not believe that early lawmakers were capable of analogizing or generalizing. If so, some part of the analysis in this essay is a dubious exercise.
Nevertheless, I think that the material that follows will display the remarkable ingenuity reflected in these early traditions. I hope to demonstrate that even if some of the rules found in primitive legal systems were intended to be fact-specific rather than illustrative, a behavioral approach to these rules greatly enriches our understanding of their content and of the uniformity and variety among them.
About the Author
Saul Levmore. Professor of Law, University of Virginia, Visiting Professor, Yale Law School.
Citation
61 Tul. L. Rev. 235 (1986)