Libertarians, anarchists, and other skeptics of the Leviathan point out that when communities are left to their own devices, they often develop norms of cooperation that allow them to settle their disputes nonviolently, without laws, police, courts, or the other trappings of government. In Moby-Dick, Ishmael explains how American whalers thousands of miles from the reach of the law dealt with disputes over whales that had been injured or killed by one ship and then claimed by another: Thus the most vexatious and violent disputes would often arise between the fishermen, were there not some written or unwritten, universal, undisputed law applicable to all cases.
. . . Though no other nation [but Holland] has ever had any written whaling law, yet the American fishermen have been their own legislators and lawyers in this matter…. These laws might be engraven on a Queen Anne’s farthing, or the barb of a harpoon, and worn round the neck, so small are they.
I. A Fast-Fish belongs to the party fast to it.
II. A Loose-Fish is fair game for anybody who can soonest catch it.
Informal norms of this kind have emerged among fishers, farmers, and herders in many parts of the world In Order Without Law: How Neighbors Settle Disputes, the legal scholar Robert Ellickson studied a modern American version of the ancient (and frequently violent) confrontation between pastoralists and farmers. In northern California’s Shasta County, traditional ranchers are essentially cowboys, grazing their cattle in open country, while modern ranchers raise cattle in irrigated, fenced ranches. Both kinds of ranchers coexist with farmers who grow hay, alfalfa, and other crops. Straying cattle occasionally knock down fences, eat crops, foul streams, and wander onto roads where vehicles can hit them. The county is carved into “open ranges,” in which an owner is not legally liable for most kinds of accidental damage his cattle may cause, and “closed ranges,” in which he is strictly liable, whether he was negligent or not. Ellickson discovered that victims of harm by cattle were loath to invoke the legal system to settle the damages.
In fact, most of the residents—ranchers, farmers, insurance adjustors, even lawyers and judges—held beliefs about the applicable laws that were flat wrong. But the residents got along by adhering to a few tacit norms. Cattle owners were always responsible for the damage their animals caused, whether a range was open or closed; but if the damage was minor and sporadic, property owners were expected to “lump it.” People kept rough long-term mental accounts of who owed what, and the debts were settled in kind rather than in cash. (For example, a cattleman whose cow damaged a rancher’s fence might at a later time board one of the rancher’s stray cattle at no charge.) Deadbeats and violators were punished with gossip and with occasional veiled threats or minor vandalism…
As important as tacit norms are, it would be a mistake to think that they obviate a role for government. The Shasta County ranchers may not have called in Leviathan when a cow knocked over a fence, but they were living in its shadow and knew it would step in if their informal sanctions escalated or if something bigger were at stake, such as a fight, a killing, or a dispute over women. And as we shall see, their current level of peaceful coexistence is itself the legacy of a local version of the Civilizing Process. In the 1850s, the annual homicide rate of northern California ranchers was around 45 per 100,000, comparable to those of medieval Europe.
