The Law & Economics of Quaker Litigation
posted by Nate Oman
I feel duty bound to write a post defending the honor of 17th century Quaker grandees. Their reputation has suffered enough. The Quakers had (still have?) a tradition of discouraging intra-Quaker litigation in the secular courts. In England, Quaker eschewal of litigation was founded in part on the religious inaccessibility of the courts. Courts required oaths, and Quakers, taking Christ’s admonition in the New Testament to “swear not” literally, refused to take oaths. Once the Quakers started founding settlements in America, however, this problem went away, as Pennsylvania law allowed for “affirmations” in place of oaths, an explicit religious accommodation that eventually found its way into the Constitution. Nevertheless, Quaker sermons and pamphlets continued to insist that Friends should resolve their disputes amicably before the Monthly Meetings of the Society rather than sue in the secular courts.
In his book Of “Good Laws” and “Good Men”: Law and Society in the Delaware Valley, 1680-1710, William Offutt compared the records of the Monthly Meetings with the local court records to determine the extent to which Quakers actually lived up to their own sermons. What he found was that despite the nominal threat of excommunication for filing suit against another Friend, Quakers were quite enthusiastic about suing one another. Looking at the records of the Monthly Meetings, in turn, he found that congregational leaders were more likely to “sue” other congregational leaders before the Monthly Meetings but that Quaker leaders were perfectly happy to sue ordinary Quakers before the secular courts. Offutt rather archly suggests that the reasons for this had to do with the (hypocritical) desire of Quaker elites to maintain their images with other Quaker elites. Economics, however, suggests a more charitable reading of the actions of Quaker leaders.
The main sanction that the Monthly Meetings had to enforce their decisions was to “disown” (excommunicate) parties who refused to comply with religious decisions. As Offutt documents, however, this does not seem to have been an especially effective sanction in most cases. Quakers regularly seemed to ignore the dictates of Quaker doctrine in this matter without suffering any adverse consequences. For Quaker elites, however, the cost of being “disowned” was greater, as it would involve the loss of their considerable social standing within the local Meeting. Imagine, then that you are a basically conscientious but nevertheless realistic Quaker grandee circa 1690. All things being equal, you would prefer to settle matters before the Monthly Meeting, but you realize that in many cases such an attempt will be futile. However, when you have reason to believe that the “defendant” is likely to comply with the judgment of the Meeting, you will follow Quaker doctrine. What this means, is that you are more likely to sue defendants who face high costs in the event of disownment before the Meetings and defendants who face low costs in the event of disownment before the secular courts. In other words, you are more likely to use the Monthly Meeting as the forum for suits against Quaker elites and use secular courts as the forum against rank-and-file Quakers who face lower costs if they are disowned.
In other words, anthropology requires that one adopt a nasty hypocritical view of the Quaker soul, while economics allows one to charitably see the Quaker grandee as a conscientious guy trying to follow his religion in the face of recalcitrant realities. Economists are so much nicer.