A second advantage or potential advantage of state-administered justice over do-it-yourself traditional justice involves power relationships. A disputant in a small-scale society needs to have allies if his bargaining position is to be credible, and if he really wants to collect those cattle that the Nuer leopard-skin chief has proposed as appropriate compensation. This reminds me of an influential article about Western state justice, entitled “Bargaining in the Shadow of the Law”—meaning that mediation in states takes place with both parties aware that, if mediation fails, the dispute will be settled in court by the application of laws. By the same token, compensation negotiations in small-scale societies take place “in the shadow of war”—meaning that both parties know that, if the negotiation is unsuccessful, the alternative is war or violence. That knowledge creates a non-level playing field in small-scale societies and gives a strong bargaining advantage to the party expected to be able to marshal more allies in the eventuality of war.
Theoretically, state justice aims to create a level playing field, to offer equal justice to all, and to prevent a powerful or rich party from abusing her power so as to obtain an unfair settlement. Of course, I and every reader will immediately protest: “Theoretically, but…!” In reality, a rich litigant enjoys an advantage in civil and criminal cases. She can afford to hire expensive lawyers and expert witnesses. She can pressure a less affluent adversary into settling, by filing extensive discovery motions in order to drive up the adversary’s legal costs, and by filing suits that have little merit but that will be costly for the other party to contest. Some state justice systems are corrupt and favor wealthy or politically well-connected parties.
Yes, it’s unfortunately true that the more powerful disputant enjoys an unfair advantage in state justice systems, as in small-scale societies. But states at least provide some protection to weak parties, whereas small-scale societies provide little or none. In well-governed states a weak victim can still report a crime to the police and will often or usually be heard; a poor person starting a business can seek the state’s help in enforcing contracts; a poor defendant in a criminal case is assigned a court-paid lawyer; and a poor plaintiff with a strong case may be able to find a private lawyer willing to accept the case on contingency (i.e., a lawyer willing to be paid a fraction of the award if the case is successful).
Still a third advantage of state justice involves its goal of establishing right and wrong, and punishing or assessing civil penalties against wrong-doers, so as to deter other members of the society from committing crimes or wrongs. Deterrence is an explicit goal of our criminal justice system. In effect, it’s also a goal of our tort system of civil justice, which scrutinizes causes of and responsibility for injuries, and which thereby seeks to discourage injury-provoking behavior by making everyone aware of the civil judgments that they may have to pay if they commit such behaviors. For example, if Malo had been sued for civil damages for killing Billy under an effective state justice system, Malo’s lawyers would have argued (with good chances of success) that the responsibility for Billy’s death did not lie with Malo, who was driving safely, but instead with the mini-bus driver who let Billy off in the face of on-coming traffic, and with Billy’s uncle Genjimp, who was waiting to greet Billy on the opposite side of a busy road. An actual case in Los Angeles analogous to that of Billy and Malo was that of Schwartz v. Helms Bakery. A small boy was killed by a car while running across a busy street to buy a chocolate doughnut from a Helms Bakery truck; the boy had asked the driver to wait while the boy ran across the street to his house to fetch money; the driver agreed and remained parked awaiting the boy on that busy street; and the court held that a jury should decide whether Helms Bakery was partly responsible for the boy’s death, through the driver’s negligence.
Such tort cases put pressure on citizens of state societies to be constantly alert to the possibility that their negligence may contribute to causing an accident. In contrast, the private negotiated settlement between Billy’s clan and Malo’s colleagues provided no incentive to New Guinea adults and mini-bus drivers to reflect on risks to schoolchildren running across streets. Despite the millions of car trips daily on the streets of Los Angeles, and despite the few police cars patrolling our streets, most Los Angelenos drive safely most of the time, and only a tiny percentage of those millions of daily trips end in accidents or injuries. One reason is the deterrent power of our civil and criminal justice system.
But let me again prevent misunderstanding: I’m not praising state justice as uniformly superior. States pay a price for those three advantages. State criminal justice systems exist primarily to promote goals of the state: to reduce private violence, to foster obedience to the state’s laws, to protect the public as a whole, to rehabilitate criminals, and to punish and deter crimes. The state’s focus on those goals tends to diminish the state’s attention to goals of individual citizens involved in dispute resolution in small-scale societies: the restoration of relationships (or of non-relationships), and reaching emotional closure. It is not inevitable that states ignore these goals, but they often do neglect them because of their focus on the state’s other goals. In addition, there are other defects of state justice systems that are not so inherent, but are nevertheless widespread: limited or no compensation through the criminal justice systems to victims of a crime (unless through a separate civil suit); and, in civil suits, the slowness of resolution, the difficulty of monetizing personal and emotional injuries, the lack of provision (in the U.S.) for recouping of attorney fees by a successful plaintiff, and the lack of reconciliation (or often, worse yet, increased bad feelings) between disputants.
We have seen that state societies could mitigate these problems by adopting practices inspired by procedures of small-scale societies. In our civil justice system we could invest more money in the training and hiring of mediators and the availability of judges. We could put more effort into mediation. We could award attorney fees to successful plaintiffs under some circumstances. In our criminal justice system we could experiment more with restorative justice. In the American criminal justice system we could re-assess whether European models emphasizing rehabilitation more and retribution less would make better sense for criminals, for society as a whole, and for the economy.
All of these proposals have been much discussed. They pose difficulties of their own. I hope that, with wider knowledge of how small-scale societies resolve disputes, legal scholars may figure out how better to incorporate those admired procedures of small-scale societies into our own systems.
CHAPTER 3
A Short Chapter, About a Tiny War
The war’s time-line The war’s death tollThe Dani War
This chapter will serve to introduce traditional warfare by recounting a rather ordinary series of battles and raids among New Guinea’s Dani people, unusual only in that they were actually observed and filmed by anthropologists. The Dani are one of New Guinea’s most numerous and densest populations, centered on the Grand Valley of the Baliem River. Between 1909 and 1937, eight Western expeditions contacted and briefly visited outlying Dani groups or their neighbors without entering the valley itself. As mentioned in Chapter 1, the valley and its teeming population were “discovered”—i.e., first spotted by Europeans, about 46,000 years after the arrival of ancestral New Guineans—on June 23, 1938, from an airplane carrying out reconnaissance flights for the Archbold Expedition. First contact face-to-face followed on August 4, when an expedition patrol led by Captain Teerink walked into the valley. After the Archbold Expedition left the valley in December 1938, further contact of Baliem Dani with Europeans (apart from a brief U.S. Army rescue of a crashed airplane crew in 1945) was postponed until 1954 and subsequent years, when several mission stations and a Dutch government patrol post were established in the valley.