Accounting for Legal Pluralism: The Impact of Pre-colonial Institutions on Crime

R. La Porta, F. López de Silanes, A. Shleifer, and R. Vishny, Law and Finance, 106 Journal of Political Economy, no. 6 (1998), 1113–1155.

See D. Acemoglu, S. Johnson, and J.A. Robinson, The Colonial Origins of Comparative Development: An Empirical Investigation, 91 The American Economic Review, no. 5 (2001), 1369–1401; D. Acemoglu, S. Johnson, and J.A. Robinson, Reversal of Fortune: Geography and Institutions in the Making of the Modern World Income Distribution, 117 The Quarterly Journal of Economics, no. 4 (2002), 1231–1294.

For a discussion of variations of crime rates across the world and their link to economic development see R. Soares, Development, Crime and Punishment: Accounting for the International Differences in Crime Rates, 73 Journal of Development Economics, no. 1 (2004), 155–184; J.H. Cole and A.M. Gramajo, Homicide Rates in a Cross Section of Countries: Evidence and Interpretations, 35 Population and Development Review, no. 4 (2009), 749–776.

For an account of crime and its effects in the post-colonial world see J. Comaroff and J.L. Comaroff (eds.), Law and Disorder in the Postcolony (Chicago: Chicago University Press, 2006).

R. Michaels, The Second Wave of Comparative Law and Economics, 59 University of Toronto Law Journal (2009), 1003–1069.

H.P. Müller, C.K. Marti, E.S. Schiedt, and B. Arpagaus, Atlas vorkolonialer Gesellschaften: Kulturelles Erbe und Sozialstrukturen der Staaten Afrikas, Asiens und Melanesiens (Berlin: Reimer, 2000), available at: <http://www.ethnomaps.ch/hpm-e/atlas-e.html>, accessed December 2012.

On pre-colonial institutions and economic development literature, see P. Ziltener and H. Muller, The Weight of the Past Traditional Agriculture, Socio-Political Differentiation and Modern Development in Africa and Asia: A Cross-National Analysis, 48 International Journal of Comparative Sociology, no. 5 (2007), 371–415; N. Gennaioli and I. Rainer, The Modern Impact of Precolonial Centralization in Africa, 12 Journal of Economic Growth, no. 3 (2007), 185–234 and S. Michalopoulos and E. Papaioannou, Pre‐Colonial Ethnic Institutions and Contemporary African Development, 81 Econometrica, no. 1 (2013), 113–152. It is suggested that this analysis makes a significant extension to this growing literature, not only by analysing crime as opposed to economic and governance indicators, but more importantly, by focusing on the interactions between pre-colonial and (post) colonial institutions and their net effect. On the private enforcement of crime literature, see W.M. Landes and R.A. Posner, Private Enforcement of Law, 4 The Journal of Legal Studies, no. 1 (1975), 1–46; D. Friedman, Efficient Institutions for the Private Enforcement of Law, 13 The Journal of Legal Studies, no. 2 (1984), 379–397; O. Ben-Shahar and A. Harel, Blaming the Victim: Optimal Incentives for Private Precautions Against Crime, 11 Journal of Law, Economics and Organisation, no. 2 (1995), 434–455; K.N. Hylton, Optimal Law Enforcement and Victim Precaution, The Rand Journal of Economics (1996), 197–206; A.K. Dixit, Lawlessness and Economics: Alternative Modes of Governance (Princeton, NJ: Princeton University Press, 2007) and M.M. Coşgel, H. Etkes, and T.J. Miceli, Private Law Enforcement, Fine Sharing, and Tax Collection: Theory and Historical Evidence, 80 Journal of Economic Behaviour & Organization, no. 3 (2011), 546–552.

D. Berkowitz, K. Pistor, and J. Richard, Economic Development, Legality, and the Transplant Effect, 47 European Economic Review, no. 1 (2003), 165–195. Based on their definition of a receptive transplant and their classification of a sample of countries, they found a negative relationship between unreceptive transplants and their constructed index of legality, which in turn they found has an impact on economic development.

H. Sumner Maine, Ancient Law, 8 The Crayon, no. 4 (1861), 77–80.

B. Malinowski, Crime and Custom in Savage Society (London: Rowman & Littlefield, 1926).

A.S. Diamond, The Evolution of Law and Order (London: Watts & Co., 1951) and A.S. Diamond, Primitive Law, Past and Present (London: Methuen & Co., 1971).

R.A. Posner, The Economics of Justice (Cambridge: Harvard University Press, 1983), p. 174 et seq.

B.Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney Law Review (2008), 375–411.

P. Lawrence, “The State versus Stateless Societies in Papua and New Guinea”, in P.J. Brown (ed.), The Fashion of Law in New Guinea (Sydney, NSW: Butterworths, 1969), p. 17 et seq.

H.H. Dodwell, The Cambridge History of India: British India 1497–1858, vol. V (Cambridge: Cambridge University Press, 1929).

For a discussion of “surface law” see W. Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge: Cambridge University Press, 2009), p. 293 et seq.

D. Acemoglu, T. Reed, and J.A. Robinson, Chiefs: Elite Control of Civil Society and Economic Development in Sierra Leone, National Bureau of Economic Research, no. w18691 (2013).

There is a long list documenting this phenomenon. For instance see E.P. Stringham and C.J. Miles, Repelling States: Evidence from Upland Southeast Asia, 25 The Review of Austrian Economics, no. 1 (2011), 17–33; C. Rautenbach and M. Jacques, Common Law Crimes and Indigenous Customs: Dealing with the Issues in South African Law, 61 Journal of Legal Pluralism and Unofficial Law (2010), 109–144; M. Forsyth, A Bird that Flies with Two Wings: Kastom and State Justice Systems in Vanuatu (Canberra, ACT: ANUE-Press, 2009); D.A. Donovan and G. Assefa, Homicide in Ethiopia: Human Rights, Federalism, and Legal Pluralism, 51 The American Journal of Comparative Law, no. 3 (2003), 505–552; S.H. Bukurura, Combating Crime among the Sukuma and Nyamwezi of West-Central Tanzania, 24 Crime, Law and Social Change, no. 3 (1995), 257–266 and S. Larcom, Taking Customary Law Seriously: A Case of Legal Re-Ordering in Kieta, 45 The Journal of Legal Pluralism and Unofficial Law, no. 2 (2013), 190–208.

J. Knight, Institutions and Social Conflict (Cambridge: Cambridge University Press, 1992).

C. Bicchieri, The Grammar of Society: The Nature and Dynamics of Social Norms (New York: Cambridge University Press, 2006).

A. Greif, Institutions and the Path to Modern Economy: Lessons from Medieval Trade (Cambridge: Cambridge University Press, 2006).

M. Aoki, Toward a Comparative Institutional Analysis (Cambridge: The MIT Press, 2001).

K. Basu, Prelude to Political Economy: A Study of the Social and Political Foundations of Economics (Oxford: Oxford University Press, 2000).

In some senses this is in opposition to the law and norms literature which often assumes the omnipotence of the state and rapid evolution. For instance, Posner and Rasmusen (R.A. Posner and E. Rasmusen, Creating and Enforcing Norms, with Special Reference to Sanctions, 19 International Review of Law and Economics, no. 3 (1999), 382) reach a similar conclusion to Bentham (J. Bentham, “Place and Time”, in P. Schofield and S.G Engelmann (eds.), Selected Writings: Jeremy Bentham (New Haven, CT: Yale University Press, 2011) suggesting that “bad norms” can simply be changed by the state by “diminishing the benefits of compliance with such norms by creating effective legal remedies”. Dharmapala and McAdams (D. Dharmapala and R.H. McAdams, The Condorcet Jury Theorem and the Expressive Function of Law: A Theory of Informative Law, 5 American Law and Economics Review, no. 1 (2003), 1–31) and Geisinger (A. Geisinger, A Belief Change Theory of Expressive Law, 88 Iowa Law Review, no. 1 (2002), 35–73) also highlight the “expressive” function of state law and suggest the state is able to create and perpetuate norms through its ability to signal good and bad behaviour and change internalised beliefs.

G. Massell, Law as an Instrument of Revolutionary Change in a Traditional Milieu: The Case of Soviet Central Asia, 2 Law and Society Review, no. 2 (1968), 226.

B. Morse and G. Woodman (eds.), Indigenous Law and the State: The Struggle for Indigenous Rights (Dordrecht: Foris, 1988).

See Tamanaha (2008), supra note 13.

H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).

E. Carbonara, F. Parisi, and G. Von Wangenheim, Unjust Laws and Illegal Norms, 32 International Review of Law and Economics, no. 3 (2012), 285–299.

J.M. Buchanan, An Economic Theory of Clubs, 32 Economica, no. 125 (1965), 1–14.

For example, Iannaccone (L.R. Innaccone, Sacrifice and Stigma: Reducing Free-Riding in Cults, Communes, and Other Religious Collectives, 100 Journal of Political Economy, no. 2 (1992), 271–291) suggests groups may maintain rules that are in direct opposition to the state in an effort to encourage commitment and reduce defection by members. If members have broken state laws, defection is less likely as they will likely face punishment by the state coupled with a loss of protection from the group. Therefore, resisting convergence of rules makes participation in state-related activities more costly and can lead to a corner solution on group members.

Diamond (1951, 1971), supra note 11.

Diamond (1951, 1971), supra note 11.

Ibid.

Box 1 presents an abbreviated version of Diamond’s (1951, supra note 11) nine differentcategories for social and legal institutions prior to what he considered the modernage: The Food Gatherers, The First Agricultural Grade, The Second Agricultural Grade, The Hunters, the Cattle Keepers, The Early Codes, The Central Codes, and The Late Codes.

Interestingly Diamond (1951, 1971, supra note 11) suggests a strong relationship between population density and type of legal institution which is of relevance to Acemoglu, Johnson, and Robinson (2002, supra note 2) as it questions the validity of their instrument for state institutions.

Diamond (1951, 1971), supra note 11.

Y. Zasu, Sanctions by Social Norms and the Law: Substitutes or Complements? 36 Journal of Legal Studies (2007), 379–396.

See Tamanaha (2008), supra note 13 and Zasu (2007), supra note 38.

This section provides a stylised analysis of legal pluralism in a post-colony with the aim of informing the empirical analysis; however, there are two important caveats to this account: (1) Most majority Muslim states (or states within states, such in the Muslim majority states of Nigeria) have adopted Islamic criminal law (or principles) in their post-colonial period (M.Badar, Islamic Law (Shari’a) and the Jurisdiction of the International Criminal Court, 24 Leiden Journal of International Law (2011), 411–433). This factor is explicitly controlled for in the empirical analysis by the inclusion of a variable capturing the percentage of Muslims for each state. (2) There are also some notable examples of states who adopted a foreign legal order rather than having it imposed upon on them by a colonial power, most notably Japan (Berkowitz, Pistor, and Richard (2003), supra note 8); however, it should be pointed out that it was still a small elite who imposed the transplant, albeit a local one.

This is of course unless one legal order adopts the wrongs of the other. When the state does this, it is often referred to as state legal pluralism. See Morse and Woodman (1988, supra note 26) and Tamanaha (2008, supra note 13) for discussions of the different stances the state can take towards a non-state legal order.

See Black (D. Black, The Behaviour of Law: Special Edition (Bingley: Emerald Group Publishing, 2010) on the substitutability of “legal” and non-legal sanctions. Zasu (2007, supra note 38) suggests that over long periods of time the sanctions of internally generated non-state legal orders should move from being substitutes to complements, that is, they reduce in magnitude.

See Larcom and Swanson (S. Larcom and T. Swanson, Documenting Legal Dissonance: Regulation of (and by) Payback Killing in Papua New Guinea, Cambridge Land Economy Working Paper (2013), available at: <http://www.landecon.cam.ac.uk/staff/publications/slarcom/DocumentingLegalDissonance25March-1.pdf>) for a formal derivation of this result.

For instance, see Bierschenk’s (T. Bierschenk, The Everyday Functioning of an African Public Service: Informalization, Privatization and Corruption in Benin’s Legal System, 57 Journal of Legal Pluralism and Unofficial Law (2008), 101–139, at 132) account of the formal justice system in Benin that suggests many instances of official “corruption” are actually “the mobilization of social relations” or non-state obligations being imposed on government officials.

For a formal derivation of this result Larcom and Swanson (2013), supra note 43.

Müller, Marti, Schiedt, and Arpagaus (2000), supra note 6.

G.P. Murdock, Ethnographic Atlas (Pittsburgh, PA: University of Pittsburgh Press, 1969).

Ibid., at 52. The local group level data are generated from Murdock’s documentation of 1267 societies is generated by descriptions of anthropologists during colonial times, mainly between 1890 and 1950.

For instance, see Chanock’s (M. Chanock, Law, Custom and Social Order (Cambridge: Cambridge University Press, 1998)) criticism of the very concept of customary law.

Müller, Marti, Schiedt, and Arpagaus (2000), supra note 6.

Ziltener and Müller (2007, supra note 7, p. 385) conclude that “the dominant social institutions [in Central and South America] are predominately western.”

J.D. Sachs and A.M. Warner, Fundamental Sources of Long-Run Growth, 87 The American Economic Review, no. 2 (1997), 184–188.

W.A. Brock and S.N. Durlauf, What Have We Learned from a Decade of Empirical Research on Growth? Growth Empirics and Reality, 15 The World Bank Economic Review, no. 2 (2001), 229–272.

Müller, Marti, Schiedt, and Arpagaus (2000), supra note 6.

The weightings use populations for the year 1965.

While it is true that some non-state legal institutions do consider homicide as a legitimate sanction, so do many state legal regimes in this sample of countries. According to Amnesty International (Amnesty International, Abolitionist and Retentionist Countries (2009), available at: <http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries>, accessed 1 June 2013) these include Afghanistan, Bahrain, Bangladesh, Botswana, Chad, China, Democratic Republic of the Congo, Egypt, Equatorial Guinea, Ethiopia, Gambia, Guinea, India, Indonesia, Iran, Iraq, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Nigeria, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Singapore, Somalia, Sudan, Syria, Taiwan, Thailand, Uganda, United Arab Emirates, Yemen, and Zimbabwe. Given the lack of empirical support for state sanctioned homicides leading to lower crime rates (see S.D. Levitt and T.J. Miles, Empirical Study of Criminal Punishment, in A.M. Polinsky and S. Shavell (eds.), Handbook of Law and Economics, vol. I (Amsterdam: Elsevier, North-Holland) the use of the death penalty by the state was not included in the estimations.

It should be noted that data from medical practitioners might also vary with the reach of the state. Cole and Gramajo (2009, supra note 3) suggest that if there is a bias it is not significant as many of the poorest countries (with relatively smaller states) in the dataset have high homicide rates. However, if there is a bias in regard to the reach of the state, it provides an additional control on the estimations as it would effectively provide homicides given the reach of the state.

J.van Dijk, J. van Kesteren, and P. Smit, Criminal Victimisation in International Perspective, Key Findings from the 2004–2005 ICVS and EU ICS (The Hague: Boom Legal Publishers, 2008).

International Centre of Prison Studies, World Prison Population List (8th ed., 2009), available at: <http://www.prisonstudies.org/publications/list/40-world-prison-population-list-8th-edition.html>, accessed March 2013.

While policing per capita would provide a measure for enforcement input, consistent data that overlap with the sample countries for pre-colonial institutions data are unavailable. The United Nations, Survey for Crime Trends and the Operations of Criminal Systems (2011), available at: <http://www.unodc.org/unodc/en/data-and-analysis/United-Nations-Surveys-on-Crime-Trends-and-the-Operations-of-Criminal-Justice-Systems.html>, accessed December 2012 overlaps with less than 30 countries from this sample.

There is evidence that violent crime and other types of crime are highly correlated over time (see A.K. Dills, J.A. Miron, and G. Summers, “What Do Economists Know about Crime?” in R. di Tella, S. Edwards, and E. Schargrodsky (eds.), The Economics of Crime: Lessons for and from Latin America (Chicago: University of Chicago Press, 2010), p. 269 et seq.).

Soares (2004), supra note 3.

Cole and Gramajo (2009), supra note 3.

Consistent with the literature, the variables measuring state enforcement (relprison), homicides per capita (homicides) and income per capita (income) are logged, which also helps to minimise the effect of outliers. The robustness of the results, including functional from, is discussed following a discussion of the results.

La Porta, López de Silanes, Shleifer, and Vishny (1998), supra note 1; R. La Porta, F. Lopes-De-Silanes, and A. Scheifer, The Economic Consequences of Legal Origins, 46 Journal of Economic Literature, no. 2 (2008), 285–332.

W. Easterly and R. Levine, Africa’s Growth Tragedy: Policies and Ethnic Divisions, 112 The Quarterly Journal of Economics, no. 4 (1997), 1203–1250.

A. Alesina, A. Devleeschauwer, W. Easterly, S. Kurlat, and R. Wacziarg, Fractionalization, 8 Journal of Economic Growth, no. 2 (2003), 155–194.

R. Ruddell and M.G. Urbina, Minority Threat and Punishment: A Cross-National Analysis, 21 Justice Quarterly, no. 4 (2004), 903–931.

Diamond (1951, 1971), supra note 11.

Acemoglu, Johnson, and Robinson (2002), supra note 2.

Levitt and Miles, supra note 56.

Posner (1983), supra note 12.

Pinker (S. Pinker, The Better Angels of Our Nature: The Decline of Violence in History and Its Causes (Penguin: London, 2011)) argues that stateless societies had higher levels of violence (but includes both crime and war to get this result). Even so, he suggests that this was due to the state’s lack of monopoly on violence and not a result of socialisation or genetics (that is, not preferences).

Soares (2004), supra note 3.

Diamond (1951, 1971), supra note 11.