He sets out how medieval Sharia worked, before the rise of the nation-state. Including observing that (in its dynamics):
Sharia is what English common law would be if you replaced judges with law professors.
The first layer of medieval Sharia was the Quran and the hadith. The second layer was legal schools; multiple generations of scholars trying to work out a consistent understanding of the rules to be derived from the Quran and hadith, coalescing in four mutually-orthodox schools (i.e. they disagree but do not regard each other as heretical). They tended to be dominant in particular regions, but large cities would have jurists from more than one school. There is evidence that people would choose a school which best suited what partnership arrangement they wished to enter into.
The third layer was the mufti, who was not a state official, appeared to rely on reputational status, and who answered legal questions put to him by ordinary folk. (As the state became more powerful, state-appointed mufti’s began to appear.) The fourth layer was the qadi, a state-appointed judge, who applied law to the facts–and may well have gone to the mufti to get a ruling on what the law was. Friedman also cautions that:
Calling it law is really misleading, because this is a system that combines law and morality.
Still, as he points out, it was a relatively private and stateless system. As economist Timur Kuran points out in his superb The Long Divergence: How Islamic Law Held Back The Middle East, (which I review here, here and here) Sharia provided, for many centuries, the most commercially-friendly legal system available.
Apart from the admirably clear exposition of how Sharia worked–prior to creeping state-takeover of law–Friedman’s talk is full of engaging descriptions of legal systems. Notably that of the gypsies and that of the Amish (he seems to think the main difference between the two is that the Amish are much better at PR). The Amish have traditional family sizes (about 6 children a couple) but modern infant mortality and child-birth survival rates. So, despite losing about 10% or so of their adults via exit from the community, their numbers are doubling every 20 years or so.
The talk is peppered with striking examples of various legal provisions. Such as the Visigoths permitting torture, but only if the details of a murder had not been publicised–as the results of torture were not accepted as evidentiary unless the accused stated details only the murderer would have known. Or that in Imperial China it was a criminal offence for children to inform on their parents or for a magistrate to read an anonymous accusation–the point being that the Chinese system relied to a considerable extent on local, private enforcement of norms, so tried to reinforce, not undermine, family and village structures. As well, since there was effectively no state-enforced contract law, this led to contractual arrangements structured so as to not require state sanctions.
His description of the Athenian system as being as if it was “structured by a crazy economist” (with examples) is entertaining education. His most striking claim, however, is that the original legal system was feuding, a claim he discusses in a paper on patent trolls.
David Friedman–who, as he says, teaches economics in a legal faculty and has never taken a course for credit in either–is also the author of Law’s Order: What Economics Has To Do With Law And Why It Matters.
Homo sapiens are certainly varied in how they have structured law. Makes you wonder what the common elements really are, apart from having law.