Horror of Common Law?
By Staff News & Analysis - July 02, 2010

Albania's modern-day blood feuds … All over Albania, there are entire generations scared to venture outdoors in case they're killed − all because of decades-old 'blood feuds'. And not even the law can help them. In the best tradition of Balkans quarrels, it all began with a mix of strong brandy, fiery tempers and very long memories. One hot summer's night in 2000, Pëllumb Morevataj, a man with a big thirst and a bigger ego, was out drinking in his village in northern Albania, when a friend made a chance remark about how the Morevataj family had backed down in a feud some half a century before. An argument ensued, and an evening that should have ended with nothing worse than bad hangovers all round saw Pëllumb shoot his drinking companion dead. The blood has not stopped flowing ever since … The multiple body count aside, vendettas like that involving the Morevataj family are not unusual in the more hot-blooded corners of the Mediterranean: similar tales can be heard among the Mafia clans of Sicily and Corsica, and throughout the Balkans from Croatia to Crete. – UK Telegraph

Dominant Social Theme: Eastern Europe needs to emerge from the darkness of age-old justice into the light of the modern-day European judicial system.

Free-Market Analysis: Just yesterday, inspired by the nomination of Elena Kagan to the US Supreme Court, we focused on how the Western legal system had increasingly departed from the sensible roots of common law. Now comes this Telegraph story about blood feuds in Albania, which is actually a short narrative of the evolution of a common-law justice system – and how it has collided with the current, statist paradigms of justice that are prevalent in Western Europe and elsewhere.

For those interested in the evolution of justice systems over the past centuries, the article provides a most interesting perspective. Both intentionally and unintentionally it sheds light on the dominant social theme that the West has levered into place to buttress the current justice system. What would that theme be? "Today's precedent-based justice system is the inevitable and logical outcome of centuries of judicial evolution." This would of course be an accompaniment to the theme we presented yesterday in The Flaw In Western Justice.

Yesterday's article discussed at some length the problems with the American judicial system, which is plagued by corruption and which relies on endless, unrolling precedent for its decision-making. The precedent-oriented approach to justice requires that the penal code and the larger system itself is constantly enlarging and providing new and novel ways of defining both civil and criminal wrongdoing.

The article also discussed the simpler judicial alternative of common law and presented one common law alternative, a recent-case study appearing on the website Journal of Legal Pluralism and Unofficial Law entitled The Rise of the Rondas Campesinas in Peru. We quoted excerpts, including an initial explanation, as follows: "The rondas campesinas (literally, 'peasant rounds') in Peru are organs of community justice. Existing primarily in rural communities, they have a history of several centuries, but have undergone recent transformations in their functions and their relationship with the state. The rondas campesinas are formed by their own members in the peasant communities. Their primary objective is the fight against abigeas (cattle rustlers)."

We found the explanation of the evolution of this common-law based system in Peru to be most interesting because it shed light on how the West's legal system had evolved and diverged from common law roots. We were struck by the Telegraph article in much the same way. Not only does the Telegraph article describe Albanian blood-feuds, it does us the service of providing a frame of reference that shows clearly how these feuds are part of a more ancient legal system and why they have apparently spun out of control. Here's some more from the article:

Here in Albania, there is an aspect to such feuds that make them unique – namely, that both sides in the feud claim to be acting entirely within the law. Not the law of 21st-century Europe, but a law that is much older, and in many parts of this ex-Communist state, the only one that is respected. The Kanun, or canon, is a 500-year-old code of conduct covering every aspect of medieval life, from births and marriages to hunting and grazing rights. And amid its edicts on the duties of a village blacksmith, and the penalties for allowing a goat to stray onto a neighbour's land, it lays out detailed procedures for blood feuds, with a chillingly loose definition of an eye-for-an-eye. When someone is killed, revenge can be exacted not just against the killer himself, but all males in his extended clan.

The Morevataj blood feud is one of an estimated 10,000 to have erupted in Albania since 1990, following the collapse of what had been one of the world's most closed communist regimes. Under dictator Enver Hoxha – a man so hardline he felt the Soviet Union went soft after Khrushchev denounced Stalin – the Kanun was suppressed as ruthlessly as the Bible. But in the anarchy of the early Nineties, its influence quickly re-emerged, as did countless old grievances that had lain dormant in the Hoxha era, particularly over land that was 'redistributed' during the socialist period. Today's blood feuds, though, can erupt over far more minor things than property or grazing rights: a chance drunken insult, for example, or a glance that lingers on another man's wife too long. …

The Zizo case is just one of hundreds on the files of Gjin Marku, a professional blood-feud mediator who is the chair of the Committee for National Reconciliation. … His grandfather, a village elder, was a mediator too, and some of his wife's relatives are currently involved in a blood feud themselves (it began with a murder back in 1953). 'I remember my grandfather with his white horse and white beard and a special seal – he was persecuted by the communists,' says Marku.'But in parts of Albania, people have always viewed the Kanun as a form of self-government. They prefer their own laws rather than those of outsiders.'

The origins of the Kanun, he explains, go back to the 1400s, when a northern Albanian prince called Lekë Dukagjini laid down a set of word of mouth laws to help the area's quarrelsome mountain clans get along peacefully. While not exactly the most progressive of visions – a wife who goes astray, for example, could expect much harsher penalties than a goat – its edicts were cherished in a land often subject to outside rule, be it by the Ottoman Turks or the neighbouring Serbs or Greeks. By the early 20th century, printed copies of the Kanun appeared, ensuring that the vendetta tradition remained alive and well during the interwar reign of Albania's modernising King Zog: rumour has it that he was the target of more than 600 blood feuds, including 55 assassination attempts.

The real problem today, Marku insists, is not the Kanun itself, but the fact that people no longer follow it properly. The book itself emphasises reconciliation, laying out peacemaking rituals in which the warring parties drink glasses of brandy mixed with each other's blood. But rather like the way some Islamic terrorists justify violence through the Koran, modern-day blood feuders interpret the Kanun selectively, focusing only on the passages that serve their interests. 'The purpose of the Kanun is to help the rule of law, not weaken it, but unfortunately there is no longer the clan structure that ensured that it was applied correctly,' Marku tells me.'In one case recently, a young man killed the mother of his brother's murderer. If he was really set on revenge, he should only have killed an adult male. It has become a total mess in every direction.' …

Soon, the blood feud dramas that play out up and down the country will be recreated on the big screen, courtesy of top US independent filmmaker Joshua Marston, who last month finished shooting a fictional movie about a family in the middle of a blood feud. The writer and director of the acclaimed 2004 drug smuggling drama Maria Full of Grace, Marston has spent the past two years in Albania researching his subject. Just as his earlier film chronicled the horrors of life as a drug mule, his latest work aims to strip away the romantic myths about honour and revenge and show the real-life impact that blood feuds have on ordinary families.

We don't know if we are going to bother to see Marston's film, but from the above narrative, it is fairly clear to us how Albanian justice evolved. Like other examples of common law justice, social rules and regulations were codified and then enforced either by local courts or simply by community custom – or by clans that would arrive at an agreed-upon sanction or penalty. The clan-oriented simplicity of such systems is likely prevalent throughout common law no matter where it arose. It is in fact mimicked in the West by two-party political systems that must also negotiate with each other without benefit of a higher authority.

Problems have obviously arisen regarding Eastern European common law systems because communism and other intrusive statist philosophies have likely fractured the power of the clans and the communal morality of society as a whole. What is left is not nearly what once was. Unfortunately, the decayed remnants of Albanian common law are now to be featured in a large-scale movie which will give people once again negative impressions of common law.

This is of course a dominant social theme of sorts and a most pernicious one. As a Bell feedbacker/scholar, pointed out just yesterday, the US is not a nation of LAWS but a nation based on LAW. In fact both Europe and the US were founded on traditional principles of common law. The sensible focus of common law involves private, marketplace justice and allows aggrieved parties to solve both civil and criminal offenses on their own using the standards of community morality.

This sort of justice is not based on precedent but on common sense and tends to limit quarrels and even violence. The system of blood feuds is actually an important component because these blood fuels, like honor-duels, kept people keenly respectful of each other. It is the devolution of common law in Albania that has upset the balance and given rise to the abuses this article focuses on.

It is difficult, from our humble perspective anyway, to believe that current Western methodologies of justice are superior to what came before. Precedent justice, combined with the West's modern-day prison-industrial complex, will inevitably give rise to a web of complex criminal and civil "laws" that will continually expand over time. This is how the EU ends up legislating whether or not eggs can be sold "by the dozen" as we reported yesterday.

Unlike common law, the precedent-based legal system can only multiply its "laws" until almost everything can be considered a prosecutable action. The end result is an oppressive and impossibly complex system good for intimidation and control. This contrasts unfavorably in our view with the simple and straightforward process of common law that was previously relied on to resolve both criminal and civil issues.

After Thoughts

As we pointed out in yesterday's article, the current legal system is in large part supported by torrents of fiat-money generated by central banking. As the current monetary system continues its unrolling collapse, we expect the worst excesses of the current statist judiciary to begin to retreat as well. However, confusion and elemental injustices will likely remain – an unfortunate legacy of the modern state and the elite that stands behind it.

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