Caribbean pirates aren't the only society of bad apples that relied on constitutions to produce successful self-governance. Many outlaw societies do so. Twenty-two of the thirty-seven street gangs Jankowski (1991: 78–82) studied have written constitutions. Sicilian Mafiosi follow a largely unwritten code of rules, and recently police found a written set of “ten commandments” outlining the Mafia's core laws (Gambetta 1993; Lubrano 2007). Kaminski (2004) identifies extensive (yet unwritten) rules dictating nearly every aspect of incarcerated Polish prisoners’ lives, from what words are acceptable to use in greeting a stranger to how and when to use the bathroom. And the National Gang Crime Research Center considers constitutions so central to criminal societies that the use of a constitution is one of the defining characteristics it uses when classifying gangs (Knox 2006: 22–25).
This essay develops a framework for thinking about the prevalence of constitutional self-governance in criminal societies rooted in the idea of profit-maximizing outlaws. Unlike most legitimate societies, criminal ones, such as pirates’, are also organizations – groups of people who come together seeking cooperation for a narrow purpose. Firms are organizations that have profit as that purpose and, ultimately, criminal organizations have this as their purpose too. In contrast to legitimate firms, however, criminal ones must produce social order to maximize profit. Hewlett-Packard doesn't need a constitutional rule that prohibits murder, nor does the Kiwanis Club. Instead, these organizations’ members rely on the government's rules that prohibit murder. In contrast, criminals have no rules of social order unless their organizations create them. It's in this sense that criminal organizations are more than ordinary firms and, in fact, more than ordinary organizations more generally: they're also societies. The key to understanding how criminal organizations use constitutions to maximize profit therefore lies in understanding how they use constitutions to produce organizational cooperation in this broad and most basic sense. To illustrate how they do so, I examine the constitutional self-governance of a contemporary Californian prison gang: La Nuestra Familia.