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"You claim that your culture launches a blood feud to avenge one of your own when he died in the course of committing a crime. I'm sorry if you don't like the word "hillbilly", but that"s the only culture I know that behaves that way. I've known hillbillies when I went to grad school in Syracuse. "

I'm not saying I agree with all of the following, but it conveys the kind of thing I was talking about when I brought up "Blood Feud" better than your hillbilly reference does.

I believe what you advocate leads to society significantly comparable to that of the Dark/Middle Ages. Naturally, I don't think you'd agree with the moot so that just leaves the blood feud.

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Blood Feud

Avenging the wrongful death of a person's kin by killing the murderer or by receiving compensation from the murderer's possessions.

During the Middle Ages all European nations had similar customs concerning the murder of their inhabitants. The closest next of kin to a person who had wrongfully died at the hands of another had the primary duty to retaliate against the killer. This obligation was subject to certain laws and customs concerning the type of permissible vengeance, the amount of compensation that could be exacted, the location at which the compensation was to be made, and the circumstances in which compensation was not required. For example, a blood feud was not sanctioned if the person killed was a convicted thief or if the person who did the killing did so to defend his lord or a close female family member. The idea of the imprisonment of a person who had committed a homicide was unknown during this period of history.

There is dispute over whether the blood feud was legal under Teutonic or Anglo-Saxon law. During the ninth-century reign of Alfred, a feud could lawfully commence only after an attempt was made to exact the price of a life. The price, called weregild, also applied when other atrocious personal offenses were committed and was paid partly to the monarch for the loss of a subject, partly to the lord for the loss of a vassal, and partly to the next of kin of the injured person. In Anglo-Saxon law, the amount of compensation, called angylde, was fixed at law and varied with the status of the person killed.

The Catholic Church exerted much influence to have a death avenged through the payment of compensation, not further violence, but the blood feud continued throughout England until after the Norman Conquest (1066). (From: Legal Encyclopedia, Thomson Gale)

II.

For most of its long history, what is now known as tort law functioned as what may be called a "peace system," an alternative to violence that facilitated the peaceful coexistence of people in society. To explain precisely what I mean by this, let me ask you to cast your minds back to the dimmest recesses of the Dark Ages when Roman rule had faded not only from the British Isles but from most of Europe. The absence of centralized authority during these times did not, of course, imply an absence of society, and our ancestors lived together in the kinship and tribal groups that would eventually evolve into the hundreds and shires of medieval England. Given human nature, the primary requirement for the survival of these social groupings was a deterrent against the use of violence. This was provided by the blood feud.

When someone was assaulted, killed, or otherwise wronged, the members of the aggrieved party's household or clan were entitled to take direct and frequently violent action to extract compensation from the wrongdoer. This "blood feud" was the expected, socially accepted response to aggression. Although it suffered from the obvious drawbacks of vigilantism, the blood feud constituted an admirable deterrent; the prospect of an immediate violent response from a victim's entire family or support group was sufficient to give a potential offender pause.

Despite its effectiveness as a deterrent, the blood feud was not very convenient in practice. The victim's supporters were usually not anxious to risk life and limb in its prosecution and the members of the larger community, who found themselves in the position of the proverbial innocent bystander, had reason to discourage it as well. Thus, its own violent nature provided strong personal and social incentives to find an alternate method of resolving disputes. As a result, the practice developed of holding the violence in abeyance while attempts were made to compose the dispute through negotiation.

The forum for these negotiations was the moot, a public assembly which served as the chief instrument of social administration. If both parties agreed, they could lay their dispute before the moot, whose members, much like present-day mediators, attempted to facilitate an accommodation that both parties found acceptable. If no accommodation could be reached, there was always the blood feud; however, if one could, violence had been avoided.

This method of composing disputes was extremely popular among both the community at large which thereby avoided strife, and (especially) among the parties' family members or supporters who would otherwise have had to do the fighting. As a result, community pressure gradually transformed the effort to reach a negotiated settlement from an optional alternative to self-redress to a necessary prerequisite for receiving the help of one's support group. In addition, the negotiations were usually successful, and typically resulted in some sort of compensatory payment being made to the injured party or his representatives since the easiest way to avoid the violence of the blood feud was simply to purchase peace.

To illustrate this process, let me ask you to imagine two sturdy Anglo-Saxon yeomen; let's call them Alfred and Aethelred. I'll ask you to further imagine that Alfred and Aethelred reside in Essex and are farmers with adjoining lands separated by a row of hedges. One day, Alfred's cow breaks through the hedges and eats a great deal of Aethelred's vegetables. As a result, Alfred and Aethelred have a dispute; and, in these agrarian times, a fairly serious one since Alfred was counting on those vegetables to get his family through the coming winter. Alfred is entitled to take direct action against Aethelred to make good his loss; he could get out his sword and round up the members of his clan or support group to prosecute the blood feud. This response is both risky and costly, however; risky because Aethelred and his clan or support group might be superior swordsmen, costly because of both the time, effort, and potential for injury involved in the fighting and the ill will Alfred may engender among his supporters for getting them involved in the unpleasantness. Therefore, Alfred has fairly strong incentives to find an alternative means of resolving the dispute.

As a result, before prosecuting the blood feud, Alfred is likely to summon Aethelred to the moot and make an "appeal," a public statement of his grievance against Aethelred and a request for help from the members of the community in redressing it. Considerable bargaining and discussion will then take place with many members of the community offering advice about how best to compose the dispute. Perhaps someone will suggest that because Aethelred's cow ate Alfred's vegetables putting Alfred's family at risk during the coming winter months, Aethelred should provide Alfred's family with milk from the cow during those months. If both Alfred and Aethelred agree to this, the dispute is resolved and no fighting need take place.

Of course, this proposal may or may not be a good way of resolving this dispute. If it is, peace will be restored between the neighbors and before long they will be inviting each other over to play cards as they did before the trouble started. If it is not, one of the neighbors is likely to be coming after the other with his sword before too long. One way or the other, there is fairly immediate feedback about whether the proposed solution was a good idea.

Conditions being fairly stable in those days, it was extremely likely a similar dispute would arise before too long. Assume that several years later, two other neighbors, Edward and Harold, appear before the moot because Edward's goat got loose and ate a large quantity of Harold's hay. If Alfred and Aethelred's dispute had been successfully resolved, someone is likely to point this out and suggest a similar solution; say, that Edward compensate Harold by supplying him with a three-month supply of goat cheese. On the other hand, if Alfred and Aethelred ended up at each other's throats, then the suggestion that Edward compensate Harold with goat cheese is likely to elicit a response such as: "Hey, we tried something like that with Alfred and Aethelred, and you know how that turned out."

As this process of copying successful methods of resolving disputes and discarding unsuccessful ones is repeated over time, rules of social behavior gradually develop. After enough disputes like Alfred and Aethelred's and Edward and Harold's have been brought before the moot and successfully resolved with the relevant compensatory payment, all future cases will quickly be dealt with the same way. Eventually, the community comes to accept and abide by a rule that requires the owner of livestock that damage another's property to compensate the injured party out of the products of the livestock.

This and the other rules that we anachronistically refer to as customary law were wonderful labor saving devices. They allowed people to avoid the extremely labor-intensive blood feud; they saved a great deal of bargaining time at the moot; and most importantly, they served as a guide for future behavior that enabled people to avoid disputes in the first place. Further, because they arose out of the repetition of successful dispute resolutions, i.e., those that were effective at restoring peace, they embodied the practices that tended to facilitate peaceful social interaction in the relevant community. Thus, our earliest law consisted in what were essentially "peace rules."

It was from these prosaic beginnings that what we now call tort law evolved. Following the Norman Conquest, an ever increasing number of the disputes that had been heard in the local moots were brought in the King's courts instead. These were presided over by royal "justices" who rode circuit (eyre) around the kingdom. When these justices, who were as interested in saving their labor as anyone, came to believe that the rule of a particular locality was effective in resolving disputes of a certain kind, they would apply it to similar disputes at other points along their ride. Thus, a royal justice who saw that the rule in Essex governing damage caused by a neighbor's livestock was an effective way of settling agrarian disputes would apply it when a similar controversy came before him in Wessex. In this way, the royal justices carried the local rules that were successful in restoring and facilitating social peace with them throughout the kingdom. Eventually, these rules became common to the entire realm, giving birth to the "common" law of England, including the common law of tort.

I will spare you the story of the growth of the common law, of how the practice of repeating successful dispute resolutions evolved into the doctrine of stare decisis, of how this doctrine gave the law the flexibility it needed to respond to changing conditions and mores, and of how this allowed for the development of new rules to provide for the peaceful redress of new grievances. I will point out, however, that until the mid-nineteenth century the development of these rules continued to be guided by the sensibilities of the ordinary citizen. This is because until that time cases were decided by juries which exercised both law and fact-finding functions. Unlike their present counterparts that are empowered to decide only factual matters, early juries simply heard the case and decided whether relief should be granted. These decisions, which reflected the jury's opinion of what was fair to the parties rather than the demands of any abstract theory of justice, established the precedents out of which the rules of tort law evolved. As a result, by the middle of the nineteenth century, tort law consisted in an essentially uncoordinated set of rules which 1) had proven successful at resolving disputes and 2) corresponded to the common person's sense of what is fair in the circumstances.

Up until this time, it is fair to characterize Anglo-American tort law as a peace system, a set of rules which provides a nonviolent way of resolving serious interpersonal disputes. As a peace system, our early tort law was characterized by four features. First, its scope was limited to fairly serious controversies. Because the rules developed as a way of avoiding violence, the complaints they addressed were usually those that were likely to give rise to violence if they were not redressed. As a result, a lawsuit was generally viewed as a last resort, something to be pursued only when no other social mechanism provided an effective way to compose the dispute. Second, the jury was the ultimate decision-maker. This made perfect sense because the average juror would have as much insight into what would be fair to the parties to the immediate dispute as any expert; more in fact, since highly educated experts were less likely to be in touch with the sentiments of the lay people who were the litigants in most tort cases. Third, the system was evolutionary in nature. Actually, it was a good example of what Friedrich Hayek referred to as "spontaneous order" in that there was no guiding intelligence behind it. Tort law did not embody any ideal of justice; it did not exemplify any rational conception of what the law should be. It was merely a collection of rules that facilitated the peaceful coexistence of human beings in society. Juries would respond to changing social conditions and the concomitant changes in human sensitivities and conflicts with new judgments of what was fair to the parties. These new precedents would expand, contract, or simply change the rules which constituted the tort system. As a result, tort law was constantly evolving to meet the changing needs of the citizenry for dispute settlement. Finally, the system was essentially "consumer driven." For it was the consumers of legal services, the ordinary citizens, who decided what cases to bring; and it was the resolution of these cases that gave rise to the rules of tort law. Therefore, it was "consumer" choices as to what issues were serious enough to require redress through the courts that drove the development of the system. (From: What's Wrong With a Little Tort Reform?, John Hasnas (J.D., Ph.D., Philosophy, Duke University, LL.M., Temple University, Assistant Professor, Georgetown University and Senior Research Fellow, Kennedy Institute of Ethics.))

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The bolded lines above relate to the social contract.