The Importance of Right Makes Might

I have been thinking about feud systems of law enforcement, mostly because of the book I am writing on legal systems very different from ours. Feud is a system of decentalized law enforcement; its essence is that when you wrong someone, he threatens to harm you unless you pay him suitable compensation. Such systems are common in the historical record. Aside from saga period Iceland, which I have written about in the past, they exist in traditional Somali law, among modern Rominchal gypsies, and arguably provided the foundation under Jewish, Islamic and Roman law, all of which contain what I view as fossilized remnants of feud. I have just written a piece arguing that the same logic can be found in modern high tech patent litigation.

Before going on, I should point out that the words "feud" and "feudal," despite similar sounds, have no connection with each other. They describe different institutions and come from different linguistic roots. 

The essential requirement for a feud system to work is that the threat to harm someone for wronging you is more believable if you actually have been wronged than if you have not—that, in other words, right makes might. Without that, threats can as readily be used for extortion as for law enforcement.

Different feud systems get that result through different mechanisms. Among modern Rominchals, both parties know that if you really have wronged me in terms of the norms of our community and I respond by beating you up, my friends will support me and your friends won't support you. Saga period Iceland had a much more elaborate version of the same system  about a thousand years earlier, in which right made might via a court system and explicit law. You wronged me, I sued you, the court found that you owed me a damage payment. If you did not pay I got the court to outlaw you, at which point you had two weeks to leave Iceland. After that it was legal to kill you, tortious to defend or shelter you. The law code and court system were analogous to ours, but enforcement of the verdict was entirely private, via  feud.

For the modern instantiation, consider patent litigation between two high-tech firms. One reason for Apple not to sue Samsung for infringement unless it has a strong case is the risk of losing—but that might not be sufficient, given both legal uncertainty and the market advantages to creating uncertainty that will make it harder for Samsung's phones to compete with the iPhone. But another reason is the risk that Samsung can, and very likely will, counter sue. The accumulation by such firms of a large inventory of patents that they never expect to use may be viewed as the equivalent to a saga period Icelander accumulating weapons and allies, just in case he ever needs them. Ideally, in a world with court error, the combination of court plus feud does a better job of deterring weak suits than court alone.

That mechanism does not work if the suit is by a non-practicing entity, referred to by critics as a patent troll, a firm that accumulates patents in order to use them in law suits, not to practice them. Such a firm is immune from retaliation. 

Which raises a problem, one possible solution to which, borrowed from Periclean Athens, is part of the subject of my new article.