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.
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