Embedded and Polylegal Systems

Most of the legal systems we have been looking at are or were enforced by governments, territorial sovereigns, but not all. Gypsy law, Amish law and, for most of its history, Jewish law, are embedded legal systems, legal systems that enforce their own rules on their own people despite being under the jurisdiction of another legal system with much greater access to force. Other examples would be the legal systems of the church of Latter Day Saints (Mormons) and the Nation of Islam (black Muslims) in present day America, the Sicilian Mafia, and urban gangs.

An embedded legal system faces most of the same problems as other legal systems, but additional ones as well. It must find some way of enforcing its rules against its population despite the fact that the way in which legal rules are usually enforced—by force or the threat of force—may be in violation of the rules of its overgovernment. If it wishes to permit activities that the overgovenment’s rules forbid, it must somehow prevent the latter set of rules from being enforced against its population. And if individuals are free to shift out of the population controlled by the embedded system, it must either find some way of making it difficult to do so or, alternatively, design its rules in a way that most of its population will find preferable to the rules of the overgovernment.

The diaspora Jewish communities found the simplest solution to these problems: Persuade the overgovernment to delegate to the communal authorities legal sovereignty over their population. As described in Chapter III, gentile rulers, Christian and Muslim, found it convenient to subcontract the job of ruling, and taxing, their Jewish subjects to the Jewish communal authorities. Those authorities were permitted to enforce their rules as legal rules are conventionally enforced, by the use or threat of force, in some cases provided by the overgovernment. And since Jews were under their own courts and legal system, they were not subject to the same legal rules as other subjects.

The gypsies found a different set of solutions. The Vlach Rom enforced their rules by the threat of ostracism, a punishment that, unlike fines, imprisonment, or execution, did not violate the laws of the states they lived in. They also, judging by the historical evidence of the letters they carried in the 15^th century, supposedly (and perhaps actually) from the Holy Roman Emperor, at some times and places claimed to have had legal authority delegated to them. It seems likely that, where those methods were inadequate, they at some times and places made use also of covert force.

The Rominchal and the Kaale relied on that final approach—using illegal force while evading, as best they could, the observation and legal authority of the over government. Both the private violence of the Rominchal and the duels and violent feuds of the Kaale were illegal, although the Kaale reduced the problem by conducting their blood feuds mostly by legal avoidance instead of illegal violence. In both cases, presumably, the risk of government interference was held down by the reluctance of gypsies to complain to non-gypsy authorities about the activities of other gypsies.¹

Ostracism is one example of a punishment that an embedded legal systems can impose without violating the rules of the legal system it is embedded in. Another is excommunication, refusing to allow participation in religious rituals. In both cases, the punishment is effective because of the special characteristics of the subpopulation under the embedded system.

It follows that the survival of the embedded system may depend on maintaining those special characteristics. Both the gypsies and the Amish have a history of trying to keep control over the education of their children. Prior to the early 20^th century, this did not present a major problem for the Amish, since most of them lived in rural areas, sent their children to one-room schoolhouses where a sizable fraction of the class was likely to be Amish, and took them out of school after eighth grade. It became a problem in about the 1920’s, when various states raised the age of compulsory schooling; Amish parents responded by refusing to send their children to high school, in some cases going to jail as a result. The resulting litigation eventually reached the Supreme Court, which ruleds in Wisconson v. Yoder that the Amish could educate their children beyond eighth grade at home by teaching them the skills of running a house and a farm—as they were already doing.

A second problem arose some decades later, as the increasing consolidation of school districts replaced small rural schools serving local families with much larger schools to which most students had to be bussed from a distance. Again the Amish refused to go along. They eventually solved the problem by creating their own system of one or two room local private schools, staffed mostly by uncertified teachers, and persuading state authorities to go along. In both cases, it seems clear that the main concern of the Amish parents was that high school education, or elementary education in a large school where the teachers and most of the students were not Amish, would weaken their children’s connection to Amish culture.

A similar issue was raised by the interaction of the Amish with the Selective Service system during and after WWII. The Amish, who are pacifists, claimed, and for the most part got, conscientious objector status. This resulted in many of them being assigned to hospital work in cities far from their homes—and, when they were finally released, a sizable fraction were no longer willing to swear to accept the Ordnung and be baptized. That problem was eventually solved by negotiation between the Amish Steering Committee and the Selective Service system, resulting in a system in which Amish and Mennonite conscientious objectors were assigned to “war work” on farms leased for the purpose from Amish owners and supervised by Amish and Mennonites.

Gypsies have also been reluctant to put their children through the ordinary school system. One reason is that a school run by non-gypsies will not follow gypsy rules of purity, with the result that children attending it will be polluted, marimé. But a further reason may well be the fear that gypsy children who spend a sizable part of their time taught by and interacting with non-gypsies will fail to be acculturated into their parents’ culture.

The objective of maintaining control creates a tension between different goals. The easier it is for members to defect, to move out of the subpopulation, the less effective ostracism is as a sanction. But the harder it is for members to defect, the greater the internal problems caused by members who are dissatisfied with the current rules of the embedded system but unwilling to leave.

That problem is nicely illustrated by Amish experience. One of the lines along which Amish congregations divide is the division between strong and weak shunning. Under the rule of strict shunning, streng meidung, the shunning of a member only ends when he has been accepted back into his congregation of baptism, normally as a result of having confessed his error, mended his ways, and been forgiven. Under the weaker rule, the acceptance of a shunned member into any Amish or Mennonite congregation is likely to result in the ban on associating with him eventually being lifted. That is a very large difference from the standpoint of someone who is considering doing things that might get him banned, or trying to leave the congregation in which he was baptised, since the people required to shun him are likely to include most of his relatives, and possibly his spouse.

By Meyers’ and Nolt’s acount, the “Swiss²” congregations, descendants of the 19^th century wave of immigration, generally include strict shunning in their Ordnung, as do the Schwartzentruber Amish, the “lowest” (i.e. strictest) of the Old Order affiliations. Both groups, perhaps as a result, have below average rates of defection, with ninety percent or more of their children choosing to remain in the congregation. But the Swiss also have the reputation of more internal dissension and more frequent schisms than the “High German” Amish, the descendants of the earlier 18^th century immigration, many (but not all) of whose congregations practice weak shunning. And while only a small fraction of Schwartzentruber children defect from their congregation, those who do defect tend to defect very far, ending up, unlike defectors from more moderate affiliations, outside of the entire spectrum of Amish and Mennonite groups.

A further problem for an embedded legal system is the pressure put on its institutions by the need to interact with the overgovernment. Here again, the Amish provide an example. Issues such as the treatment of Amish conscientious objectors, schooling requirements, the Amish reluctance to pay Social Security (given that they are unwilling to collect it), and requirements for marking Amish buggies as slow moving vehicles, all require negotiation between a state or federal government and someone who can speak for the Amish inhabitants of the state or the nation—a requirement hard to satisfy, since the Amish recognize no authority above the level of the individual congregation.

To solve that problem, organizations such as the National Amish Steering Committee and Amish state schooling committees were formed. The steering committee successfully negotiated with the Selective Service system, both to assure Amish draftees of conscientious objector status and to funnel them into agricultural “war service” that would keep them connected to the Amish culture, and was later instrumental in negotiating solutions to other conflicts between the Amish and government.

The creation of such supra-congregational structures carried with it a very real threat to the decentralized nature of Amish institutions. The steering committee had no formal authority over the congregations, but the willingness of governments to treat it as the voice of the Amish gave it power that might have been converted into de facto authority. One of the things the committee did was to produce a set of recommendations for the running of Amish schools, designed to prevent any individual schools from being run in a way that might upset non-Amish authorities enough to threaten the understandings that made possible the Amish system of private schools staffed by uncertified teachers. If the committee had felt sufficiently strongly about the importance of having those recommendations followed, and if the commitment of its members to the absence of any central authority over the congregations had been insufficiently strong, congregations that ignored the recommendations could have been threatened with a refusal by the committee to assist their draftees. The Selective Service system relied on the committee to tell them who was or was not a real Amish qualified for C.O. status—and they could have taken the position that a congregation so irresponsible as to threaten the ability of others to run their own schools did not qualify. By that tactic, or other analogous ones, the committee could have borrowed power from the federal government and tried to use it to control the congregations.

It did not, so far as we know, ever happen, perhaps because the ideological commitment of the members of the committee, themselves Amish, was too strong. But the fact that it could have happened suggests one problem facing an embedded legal system based, as the legal system of the Amish is, on decentralized institutions.

Polylegal Systems

So far I have been considering legal systems that are unambiguously “under” the authority of some overgovernment. Somewhat different issues are raised by polylegal systems, societies where different people are under different legal rules, but no one of the legal systems has superior status to the others. One example would be Sunni Islam, with four different and, in effect, coequal schools of law existing in the same city. Many other examples existed in the Middle Ages. During the reconquista in Spain, it was not uncommon for a Muslim village to pass under Christian rule but be allowed to remain under Muslim law, and during the period when German traders were expanding their activities into Slavic areas along the Baltic coast, local rulers sometimes permitted the Germans under their rule to be under German law. Under the millet system of the Ottoman Empire, different ethnic communities, not only jews but also various different Christian groups, were given self-governing powers, subject to whatever requirements the Empire imposed upon thm.³

A polylegal system raises no problems as long as disputes are are intra rather than intracommunal, and in most such systems most disputes probably were. The problem arises when a polylegal system must deal with cross cases, disputes between (say) a Maliki plaintiff and a Shafi’i defendant. Does such a case go to a Maliki court, a Shafi’i court, or some third court? [I don’t yet have a clear answer to this question] One possible solution is for one system, perhaps the system of the ruler, to have jurisdiction over such cases, but there are others. The rule might, for instance, be that a case always went to the legal system of the defendant. Each pair of legal systems might have an agreement specifying the court to which disputes between them would go⁴—although that still raises problems for a dispute with multiple parties adhering to more than two systems. In the Islamic case, disputes between a Mulim and a Christian or Jew could be taken to a Muslim court—but that did not solve the problem of disputes between Muslims adhering to different schools.

The same issue exists in current U.S. law, which is in its own way polylegal. Each U.S. state has its own system of legal rules. Most disputes have an unambguous location in a particular state, but not all; consider the case of a customer in California who purchases a product produced in Massachusetts from a seller in Texas. What court gets to decide the resulting product liability dispute? U.S. legal theory includes an elaborate set of rules for solving such “conflict of law” cases.

One of those rules is diversity jurisdiction. A civil case that would normally be under state law can be heard by a federal court instead if the plaintiff and defendant are from different states, under different state laws. Think of it as a modern version of the rule that sends cross cases to the ruler’s court.

The answer is not simply that federal law controls—in some contexts federal law cannot override state law. And the problem appears, de facto if not de jure, within the federal system, since the interpretation of federal law is mostly done by the appeals courts of the various federal circuits, and they do not always agree. There is thus a “law of the circuit,” and just as in the case of state law there may be ambiguity as to which circuit has jurisdiction over the case. Only when the Supreme Court agrees to hear a case is a rule produced that is binding on all circuits. Conflict between circuit opinions is one of the reasons for the Supreme Court to accept a case.

[This chapter could use more information on how historical polylegal systems worked.]