Thursday, May 14, 2015

Of Weregild

Via SJ, DC criminal defense attorney Jamison Koehler relates a tale of an attempted shakedown by a complainant. The short version runs a little like this (names changed for didactic purposes):

Dirk punches Carl, breaks his nose. Carl calls up Dirk's lawyer and offers to drop the charges as well as the civil suit if Carl forks over $30 grand. Dirk's lawyer checks his blood pressure and then blogs about the experience later on (after the trial is concluded, I assume). Greenfield offers additional advice should this sort of thing occur again.

Recall that the legal system in the US is patterned very closely after the English Common Law. Recall also that the English Common Law is not the only system to have administered justice in the west. If I had to wager a spondylus on the source of Carl's pedestrian jurisprudence, I'd go with the old German Salic Code. Frankish King Clovis I included ca. AD 510 a practice called weregild. Under a weregild regime, there are no corporal, carceral or capital punishments for violent crimes. If you were convicted of a crime, you paid either the victim or his family restitution based on the nature of the crime and the social status of the victim. Of course, by the 14th century or so, Salic Law had been supplanted by Holy Roman Law in Frankish territory, which meant a greater reliance on state-administered capital punishment rather than pairwise restitution. But at the time, the Salic Code was quite a nice improvement over payment in blood.

Let's lend Carl the benefit of the doubt and claim that he was simply channeling the same sense of justice that appealed to Merry Ol' Clovis. Is that really so wrong? Isn't a side payment in lieu of bypassing the modern US criminal justice system and all its unpleasantness merely an offer of a euvoluntary exchange where both parties walk away if not happier, then certainly better off than they would be by accepting their BATNAs?

Mind your Heraclitus here. The great peril of picking up depreciated jurisprudence a la carte is that the bits and bobs you might find appealing are part of an integrated ecology. The truth-seeking trial by ordeal, for example, works better than available alternatives when fingerprint or DNA evidence is unavailable. Similarly, weregild functions as a component of an integrated administration of justice where the alternatives are trial by combat. In the US of 2015, the alternatives to shaking down the guy who busted your lip include the well-trod, well-understood rituals of simple assault charges. Different BATNA, different negotiation tactics. Different outcomes of justice.

But wrong? Can you see a way to re-integrate the jurisprudence of weregild into a modern justice system? Can side payments help reduce the dreadful problems of prison overcrowding? Why or why not? What is the price of a life? Of a black eye? Cannot side payments serve the fundamental purposes of having a criminal justice system in the first place?

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Do you have suggestions on where we could find more examples of this phenomenon?