Lean Law and Order

Maintaining law and order, using only the resources of the informal economy, would be . . . well, “impossible” is the word that comes to mind, and justifiably so in the case of a giant civic society whose social order and common purpose has long-since been dissolved. But in the Lean Economy, the presumption is that there will be no alternative. Communities that cannot buy in their law and order will have to make their own. They will keep their own peace.

The key to such community law and order is prevention. Social capital, practice and apprenticeship, the structures of belonging, the legitimised joy and rebellion of play and carnival, and the small scale of lean community will all reduce the incentives for crime. And families will recover the confidence to build emotional intelligence and citizenship. And yet, even cohesive communities are not crime-free. The problem is, of course, that in the Lean Economy there will be little or no money to pay for a police force.

Fortunately, the idea of local community being responsible for keeping the peace is well established. English law’s recognition of the principle of community policing reached its full expression in the Statute of Winchester of 1285. According to the statute, every man (other than clergy) between the ages of fifteen and sixty was required to possess arms appropriate to his rank, ranging from the helmet, hauberk (coat of mail) and sword of the knight down to the poor man’s bow, arrows and knife; it also affirmed the tradition that every man is a policeman: all must serve their turn as night watches and constables, join the hue and cry (by which anyone who spotted a crime could summon bystanders to assist in the pursuit of the criminal), cut back the roadside trees, and bear mutual responsibility for crimes committed within their area. If need be, they were also required to form a posse comitatus to deal with persistent trouble such as, for instance, incursions by the Scots from across the border.^L154

Despite the obvious drawbacks in a system which required every man to carry arms and to be expert in their use, and which demanded that merchants and artisans should be ready to break off work to take their turn as constables or, at a moment’s notice, to join the hue and cry, it did at least make for a community which was active in preventing, and responding to, crime. In fact, the community’s main task is prevention—to be a community to which people want to belong—but, as for crime after the event, there are three things for the community to do: solving crimes once they have occurred; sustaining appropriate systems of punishment; and containing the whole process within the framework of the law.

Solving crime

Unskilled investigation is at best inefficient, at worst intolerable. For medieval towns and villages, the preferred and obvious method was to find witnesses, but they could be unreliable, or know little, or they might not exist at all. An alternative was to invite “compurgators”, predecessors of the jury, with a knowledge of the circumstances, to swear to the innocence of the accused. But in the absence of witnesses and established methods of investigation, a twelfth century local community, shocked by a crime, could have recourse to methods which expressed its desperation but did little to reveal the facts. Although torture was not permitted by English common law, there were exceptions, and trial by ordeal lingered on as a last resort. The accused might be required to thrust his arm in a cauldron of boiling water to pick out a stone; or he could be made to walk over red-hot ploughshares, place his hand in a glove of red-hot iron, or pick up a red-hot iron bar and hold it in his bare hand while he walked three paces. The hands or feet were then bandaged for three days; if at the end of the third day there was evidence of scalding, or a blister the size of half a walnut, this was taken as proof of guilt. Even the examination of witnesses—in itself a more rational and accurate way of getting at the facts—could, if frustrated, break down into retribution, since eye-witnesses were almost the only reliable source of forensic information that the local community had. One woman found guilty of perjury (a capital offence) in a murder trial was spared execution: “she has deserved death but by way of dispensation let her eyes be torn out”.^L155

As in the case of lean defence, there is a sense here of a barely soluble problem—a gap between what is needed and the resources of a cash-poor political economy which has not yet developed systems of investigation which we take for granted. The proper response is to recognise how effective well-motivated amateurs—citizens—can be, given the training and incentive. Citizenship lends itself better to the prevention of crime than to solving it but, when the funds to pay for full-time professional public services are not there, other methods must be explored.

Lean policing could consist of a core of experts—craftsmen of law and order, and paid if resources allow—whose main function is to train citizens with the skills of policing when the need arises. Even now, some hybrid vestiges of this persist in the case of part-time special constabulary, rural fire brigades, the Territorial Army, and private detectives. The Lean Economy could be seen as a society based on inspired amateurism. Lean citizenship places its skills at the service of the community.

Punishing crime

Local communities have almost no facilities for effective and tolerable punishment—and a distinction must be made here between short-term detention (for which the sheriff’s lock-up, familiar from Western movies, will do) and longer-term imprisonment. The difficulty of sustaining a system of punishment in a society in which cash and capital are scarce is illustrated in the ancient sharia system of punishment in Arab countries: a nomadic people, whose lower ranks possess little or no private property or money, cannot impose fines, nor maintain prisons. Individuals’ only substantial assets are their bodies. Although sharia amputations and the finality of capital punishment are scarcely to be condoned, alternative punishments available to a society whose wealth is far below the exceptional levels of our own are clearly quite limited.

Prisons will have to be sustained outside the parish, and administered at the level of the county or nation, but even this could stretch the resources available, and, in any case, the lean response to crime will be an intense focus on repair, on understanding what had gone wrong, on bringing people back into the community. The core lean principle of diagnosis—the Five Whys, tracing problems back to a cause or causes that could realistically be corrected—applies critically to the treatment of crime.

It is not an unrealistic aim. Crime is valuable feedback about what childhood in that society means, about its education, economics and culture—about whether this is a society that works or not. Listening to that feedback and acting on it will be the signature of the Lean Economy’s principles on Law and Order. And, since the Lean Economy will recognise blame for the fallacy it is, it will hold punishment in reserve as an option, rather than using it as routine. It will fail, often: psychopaths and sociopaths exist in the nicest society. But it will have its priorities and preferences for the punishment of miscreants: service to the community in various forms, perhaps including enforced participation in music, dance, sport, carnival, conversation, or contact with and care for animals, especially horses. Maybe communities will nominate, not jailors, nor professional social workers, but mentors offering practical help and proof of community as an ally. The Lean Economy will be a place of empowerment, work and celebration. It will be a place that people want to belong to, to get back into.

Failure at the end of all this will no doubt lead to prison or tougher sanctions. But prisons are not all bad. As the historian Guy Geltner tells us, when prisons began to be regularly used for punishment in Europe at the end of the fourteenth century, they were not necessarily the infested, lethal nightmares that we might imagine, but recognised as opportunities for sustained contact and responsibility for prisoners, for correction and redemption. There were the exceptions, of course, but there was also evidence that it is not just hospitals and schools that can be seen as opportunities for local citizenship. Prisons can be, too.

But it will be the last resort, because the Lean Economy’s ability to sustain large prisons will be not much better than that of nomadic tribes, whose punishment systems were brutal, but cheap.^L156

Containing the whole process within the law

There is a tension here: local diversity and practice vs. the law of the state. It is, however, a necessary and creative tension; were it to fail, one of its two extremes would triumph: either (1) the tyranny of an exclusively local code of law, or (2) the tyranny of exclusively state law, extending beyond its proper limits, into the detail of local regulation. In the Lean Economy, there will be deeply-rooted diversity in local law, subject to a framework of national law and legal institutions.

In early medieval England, the state sometimes had to shout for its side of the argument to be heard: the local lord had the right to enforce an obligation, such as rent or services, by seizing a tenant’s chattels; on the other hand, tenants’ own rights were protected by common law, and King Edward I decided to make this protection really effective. Maurice Powicke explains how:

Suppose that the lord or his bailiff had seized a tenant’s beasts, required for ploughing and carrying, and had driven them into his castle and refused to release them. The first Statute of Westminster (1275) enacted that in the last resort, after due warning, the castle or fortified place should be battered down beyond repair.^L157

But who is to hold the tension between the two extremes? The ideal candidate is someone who recognises an obligation to sustain standards more robust and universal than those of the locality—but who, at the same time, has a fierce local loyalty and sympathy, is drenched in local knowledge and experience, and is driven by affection for the place. In other words, the ideal is the magistrate. Magistrates have presence. They began their history in a healthy atmosphere of mild suspicion on all sides. The professional lawyers were especially suspicious, for magistrates were amateurs. Their appointment as keepers of the peace began within a few decades of the Norman conquest, but it was only after two centuries of their powers being by turns increased and reduced that, in 1368, their judicial powers were placed firmly on a statutory basis.^L158 Another two centuries later, they finally earned unqualified official approval—with the comment from the great common-law lawyer, Sir Edward Coke, that the magistrates were . . .

. . . such a form of subordinate government for the tranquillity and quiet of the realm, as no part of the Christian world hath the like.^L159

Magistrates—Justices of the Peace, the Bench—were (and many still are) unpaid; they had (but generally do not now have) status; their tenure was secure (though is now less so); there were magistrates courts, representing local justice, in every town (now largely closed down and concentrated in the large towns). Their durability as an uncorrupt institution was remarkable, and the crucial element here was status. It was uncommon for magistrates to be removed—and there is a reason for this:

The idea that the social status of the magistracy must be maintained prevented any king from purging the county. This idea was sound. Magistrates varied in character, but their position in local society was a guard against the worst kind of corruption, for it brought out their sense of paternal responsibility.^L160

One of the things that the Lean Economy may have to reinvent from little more than a remnant is the local network of unpaid, independent magistrates. They will bring ordinary knowledge (Expertise) to the problems that will occur as the new social order is explored and tested. And they are key to connectedness—as Powicke describes it, “the interdependence of social relations from top to bottom—that makes a society”.^L161 Magistrates, along with the related amateur institution of juries, sustain a layer of common sense between the frigid intensity of official intervention and the creative appreciation of local detail. They cannot be coerced; they have to be persuaded. They are sufficiently free of corruption and of a prior institutional mindset to listen. They make the link between social standing and civic responsibility. If the Lean Economy does achieve interdependence of social relations from top to bottom, that link will be part of it.

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The Lean Economy, then, may have a small core of well-qualified police paid for by some form of tax or local contribution; this will be similar to the core of medical expertise in Lean Health. The scale of this service will, however, be drastically less than that seen in the market economy: communities themselves will do much of the peace-keeping, and the world in which people learn how to live will consist of local communities and not just local streets. The legal system itself will also be reduced, relative to the current scale, with a much reduced commercial litigation, the demise of central regulatory intervention in local practice, and the common purpose of a society that is trying to heal itself. And the legal system will place central emphasis on its local unpaid presence in the form of the ancient and tested institution of Justices of the Peace. Self-reliance in law and order may seem at first to be a landscape inspiring wild surmise—and there is some mapping to be done—but it is where we are about to live.

Related entries:

Community, Law and Change, Assent, Calibration, Witch-Hunt.