among the Nuer, as among most other non-state societies except for strong chiefdoms. The Nuer chief has no authority to settle the dispute, and is just a mediator, a means to save face and promote a cool-off period if both parties so desire, as was also true of Yaghean’s role in the dispute between Billy’s family and Malo’s employer. The Nuer chief has no monopoly on force, nor indeed any means to apply force at all; the disputing parties are still the ones able to use force. The aim of Nuer dispute resolution is not to decide right or wrong, but to re-establish normal relations in a society where everyone knows or at least knows of everyone else, and where persistence of ill will between any two members of the society endangers the society’s stability. All these limitations of Nuer tribal chiefs change when one encounters more populous chiefdoms (such as those of large Polynesian islands and large Native American polities), whose chiefs hold real political and judicial power, assert a monopoly on the use of force, and represent potential intermediate stages towards the origins of state government.
State authority
Let’s now compare those non-state systems of dispute resolution with the systems of states. Just as the various non-state systems that we discussed share features in common while differing among themselves in other respects, state systems also share other common themes amidst their diversity. My comments about state dispute resolution will mostly be based on the system most familiar to me, that of the United States, but I shall mention some differences in other state systems.
Both state dispute resolution and non-state dispute resolution have two alternative procedures: mechanisms for reaching mutual agreement between the disputing parties, and then (if those mechanisms are attempted but fail) mechanisms for reaching a contested solution. In non-state societies the flip side of the compensation process for reaching mutual agreement is escalating violence (Chapters 3, 4). Non-state societies lack formal central state mechanisms for preventing dissatisfied individuals from pursuing their aims by violent means. Because one act of violence tends to provoke another, violence escalates and becomes an endemic threat to peace in non-state societies. Hence a prime concern of effective state government is to guarantee or at least improve public safety by preventing the state’s citizens from using force against each other. In order to maintain internal peace and safety, the central political authority of the state claims a near-monopoly on the right to use retaliatory force: only the state and its police are permitted (with sufficient cause) to employ violent retaliatory measures against the state’s own citizens. However, states do permit citizens to use force to defend themselves: e.g., if citizens are attacked first, or if they reasonably believe that they or their property are in imminent serious danger.
Citizens are dissuaded in two ways from resorting to private violence: by fear of the state’s superior power; and by becoming convinced that private violence is unnecessary, because the state has established a system of justice perceived to be impartial (at least in theory), guaranteeing to citizens the safety of their person and their property, and labeling as wrong-doers and punishing those who damage the safety of others. If the state does those things effectively, then injured citizens may feel less or no need to resort to do-it-yourself justice, New Guinea–style and Nuer-style. (But in weaker states whose citizens lack confidence that the state will respond effectively, such as Papua New Guinea today, citizens are likely to continue traditional tribal practices of private violence.) Maintenance of peace within a society is one of the most important services that a state can provide. That service goes a long way towards explaining the apparent paradox that, since the rise of the first state governments in the Fertile Crescent about 5,400 years ago, people have more or less willingly (not just under duress) surrendered some of their individual freedoms, accepted the authority of state governments, paid taxes, and supported a comfortable individual lifestyle for the state’s leaders and officials.
An example of the behavior that state governments aim to prevent at all costs was the Ellie Nesler case in the small town of Jamestown, California, a hundred miles east of San Francisco. Ellie (Plate 35) was the mother of a six-year-old son, William, whom a camp counselor named Daniel Driver was suspected of sexually molesting at a Christian summer camp. At a preliminary courtroom hearing on April 2, 1993, at which Daniel was being charged with abusing William and three other boys, Ellie fired five shots at close range into Daniel’s head, killing him instantly. That constituted retaliatory force: Ellie was not defending her son against an attack in progress, nor against the imminent prospect of an attack, but she was retaliating
Ellie’s case provoked a national debate on vigilantism, with her defenders hailing her for exacting her own justice, and her critics condemning her for doing so. Every parent will understand Ellie’s outrage and feel some sympathy for her, and probably most parents of an abused child have fantasies of doing exactly what Ellie did. But the view of the state of California was that only the state had the authority to judge and punish the abuser, and that (however understandable Ellie’s rage) state government would collapse if citizens took justice into their own hands, as Ellie did. She was tried and convicted of manslaughter and served 3 years of a 10-year sentence before being released on appeal based on jury misconduct.
Thus, the overriding goal of state justice is to maintain society’s stability by providing a mandatory alternative to do-it-yourself justice. All other goals of state justice are secondary to that main one. In particular, the state has less or no interest in the overriding goal of justice in small-scale non-state societies: to restore a pre- existing relationship or non-relationship (e.g., by promoting an exchange of feelings) between disputing parties who already knew or knew of each other and must continue to deal with each other. Hence non-state dispute resolution is not primarily a system of justice in the state sense: that is, a system to decide right and wrong, according to a state’s laws. Bearing in mind those different overriding goals, how similar are state and non-state systems of dispute resolution in their operation?
State civil justice
A starting point is to realize that state justice is divided into two systems, which often employ different courts, judges, lawyers, and bodies of the law: criminal justice and civil justice. Criminal justice is concerned with crimes against the state’s laws, punishable by the state. Civil justice is concerned with non-criminal injuries inflicted by one individual (or group) on another, and further subdivided into two types of actions: contract cases, resulting from breach of a contract, and often or usually involving money; and tort cases, resulting from injury done to a person herself or to her property through the action of another person. The state’s distinction between criminal and civil actions is gray in a non-state society, which has societal norms of behavior between individuals but does not have codified laws defining crimes against a formally defined institution, the state. Compounding the grayness is that an injury to an individual is likely to affect other individuals as well, and small societies are much more concerned than are state societies with those effects on others—as exemplified by the case I related of everyone in a !Kung band being affected by and joining the arguments between an unhappy husband and wife. (Imagine if a judge in a California divorce court were to take testimony about how the divorce would affect everybody in town.) In New Guinea, essentially the same system for negotiating compensation is used to deal with the intentional killing of one person by another, the repayment of a bride-price after a divorce, and one man’s pig damaging another man’s garden (respectively a crime, a contract, and a tort in Western courts).
Let’s begin by comparing state and non-state systems for civil disputes. One similarity is that both use third parties to mediate, to separate the disputing parties, and thereby to promote cooling-off. Those intermediaries are experienced negotiators like Yaghean in New Guinea, leopard-skin chiefs among the Nuer, and lawyers in state courts. In fact, states have other types of intermediaries besides lawyers: many disputes are handled outside the court system by third parties such as arbitrators, mediators, and insurance adjusters. Despite Americans’ reputation for being litigious, the great majority of civil disputes in the U.S. are settled outside the courts or before going to trial. Some professions consisting of a small number of members monopolizing a resource—such as Maine lobster fishermen, cattle ranchers, and diamond traders—commonly settle member disputes by themselves without
