Self-Help Law

“Self-help law” may sound like a book you would pick up to figure out how to make a will or file a lawsuit on your own, but it’s actually an important concept in history. Many societies in history have operated under a self-help legal system, especially small societies without developed governments, but even large, complex societies like the Roman Empire have operated under self-help law.

Most of us today live in legal systems that have mechanisms for enforcing legal judgments. If you take someone to court and win a judgment against them, you can rely on the police and courts to ensure that the judgment is fulfilled. Self-help legal systems don’t have those mechanisms. In a self-help system, you may take someone to court (or before a council of elders, or to a family tribunal, or whatever the system is) to get a judgment on who is legally in the right and what you are entitled to, but once the judgment is given it is up to you to carry it out. If the court decides that your neighbor owes you three bars of silver for cutting down your hedge, no one is going to come along and make them pay up. You have to go and get the silver from them yourself.

That may not sound like much of a legal system—if it all comes down to you having to barge into your neighbor’s house and grab their cash, it looks a lot like might making right. The difference, though, is that a self-help system requires you to get a legal judgment first. Once your neighbor cuts down your hedge, you can’t just bust in their door and take the silver. You have to present your case before a court (or council, or whatever the equivalent legal body is). You have to submit your grievance against your neighbor to someone who has the authority to represent the values of the community and judge how badly your neighbor has transgressed them. If you bust in and take the silver before going to court, that’s theft, and your neighbor has a case against you; if you do it after getting a judgment from the court, then you are executing justice and they have no case.

Self-help law accomplishes certain things that are useful in maintaining an orderly society. For one thing, it interrupts the cycle of vengeance by making people slow down, not act in the heat of anger but give wiser heads a chance to prevail. It offers a check on personal vendettas by submitting individual grievances to a neutral party. At the same time, though, it avoids burdening society with any kind of formal law enforcement, which could be a disruptive presence, especially in small-scale societies where disorder and crime are not everyday problems.

Self-help law also has its limitations. The obvious one is that some people are in a much better position to enforce their rights than others are. The rich and powerful have always been better able to wield the power of the law against the poor and humble, but under self-help law the weak often have very little real recourse against the strong. Another problem with self-help law is the tendency to escalate conflicts. Even with the intervention of a neutral party’s judgment, it’s hard for people to set aside their feelings of personal grievance. When your neighbor has cut down your hedge, even if you are legally entitled to go into their house and take three bars of sliver, it may be hard to resist urge to kick their dog and knock over their shelves while you do it, which just gives your neighbor a new legal claim against you. Self-help law may be described as a state of suspended violence, which carries within it the implicit threat of real violence breaking out.

A system of legal self-help also has broader social consequences. To be able to effectively carry out judgments (or resist people carrying out judgments against you), it’s useful to have a large network of friends and family you can rely on to stand up for you. Naturally, they’ll expect you to stand up for them in return. The bonds of friendship and family are more than sentimental in such a society; they can make the difference between living safe in your home and having your property under attack by your neighbors. They can also, on the other hand, drag you into conflicts that you had no part in beginning. As the old joke goes: “A friend will help you move; a good friend will help you move a body.” In a world of legal self-help, you might say: “A good friend will help you shove in your neighbor’s door and get the three silver bars that hedge-cutting menace owes you.”

Thoughts for writers

There is a lot of potential for drama in a self-help legal system. Modern law enforcement can sometimes create its own problems, but it also—by design—interrupts a lot of conflicts that would otherwise play out between individuals, families, and communities, sometimes violently. When you can’t just call the police on your annoying neighbors, interpersonal relationships evolve differently than we are used to today. A lot of stories from the past—the Mahabharata, the Iliad, Romeo and Juliet, etc.—have at their core the tensions that arise from the suspended violence and mutual obligations of a self-help society.

It is also important for us to understand that these tensions are real and have consequences. The conflicts that break out between feuding families or rival princes are not the result of overinflated egos but the consequence of living in a world where there is no one to guarantee your rights other than yourself and the friends and family you can count on to back you up.

Image: Balance scales, photograph by Mbiama via Wikimedia

History for Writers is a weekly feature which looks at how history can be a fiction writer’s most useful tool. From worldbuilding to dialogue, history helps you write. Check out the introduction to History for Writers here.

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