That crimes were ultimately offenses against the community, not just against individual plaintiffs, was perhaps the most important conceptual breakthrough in law's development. Individual harm was self-evident but only tangentially the state's business.

For mil­lennia, such torts were therefore left to the parties involved to han­dle. The idea of a public crime, however, required both a sense of social damage—a tear in the communal fabric going beyond any individual's stake in the matter—and recognition that the state, as society's most plausible representative, was the proper actor to pun­ish it.

With the state seeking to stamp out vengeance and restitution, a broader issue arose. If crimes merely pitted kin groups against each other, then private resolutions sufficed. But what about vic­tims without family or others to speak for them?¹ More interest­ingly, what about actions that damaged not just the victim but also society? Many crimes targeted individual victims: theft, rape, murder. For them, private solutions were obvious and for centuries the only ones available. Yet other offenses, sometimes with no spe­cific individual victims, were inherently attacks on society. Offenses against authority and religion were obvious examples of such pub­lic crimes.² But more mundane violations could also harm some­thing beyond the individual victim. Embezzlement, tax fraud and evasion, espionage, perjury, perversion of justice, coining and coun­terfeiting, food adulteration, sedition, pollution, failure to school or vaccinate children: all such acts inflicted collective harm where res­titution did not suffice. Even individual crimes had social conse­quences. Philo of Alexandria, a contemporary of Paul, considered adultery worse than murder because it harmed the soul, not just the body, and left behind victims among families, children, and the state.³ Though suicide was seemingly the ultimate individual act, Durkheim argued, in fact it gnawed at the social principle of each person's inviolability.⁴ Anything that undercut public trust in the currency long remained a capital crime—even in Quaker Penn­sylvania of the eighteenth century.

Dante Alighieri regarded fraud and betrayal—betraying public trust—as socially more harmful than mere violence.⁶ In a collectivist system ruled by religious caste (theocracy) or dictator (autocracy), an individual action might violate the communal order—privately worshipping false idols, say, or stealing property that by definition belonged to the collective. But the idea of purely individual trans­gressions wilts under scrutiny also in secular and politically liberal societies. They, too, enforce a common code of ethics. Citizens may be left to make decisions privately that earlier were publicly defined and enforced. Mores may have changed and relaxed. Yet inviolable moral precepts ground every society, even ours today.

Both Roman and then Germanic law focused on individual retribution and retaliation.⁷ Yet the insight gradually spread that if society suffered damage, then it could take revenge. If society had been harmed in ways unrepairable by individual action, the state would stand in for its claim to restitution. Christianity's emphasis on forgiveness and on redeeming sinners shifted attention away from making criminals pay: not taking an eye for an eye but turning the other cheek.⁸ Nonetheless, sins remained understood as actions against God, offensive not just to him but to all faithful. Sin had col­lective consequences. Crime went beyond individual malfeasance.

Religious law first broached the idea of an offense that trespassed against something higher, not just the immediate victim.⁹ In early times, crimes foremost violated God's order. Sin and crime over­lapped, and everyone—not just the miscreant—might end up suf­fering. The offended gods might punish or forgive. Hebrew law was divine, emanating directly from God.

The state's stake in punishing crime thus went beyond individual justice to protect the common interest by enforcing the law. “All suf­fer injury when someone wrongs the state,” Plato insisted. Demos­thenes regarded deeds of violence as public crimes committed also against those who were not directly involved.¹² The Greeks saw some crimes as polluting all society, with individual actions taking on col­lective consequences. Like traitors and committers of sacrilege, mur­derers offended the community as a whole, not just victim and kin.¹³ Crimes involving matters of public concern, such as charges against government officials, were processed in special jury courts (dikaste- ria).1⁴ In the Old Testament, rituals were prescribed to cleanse a com­munity of the collective guilt arising from an unsolved murder.¹⁵

Most apparently, desertion or loss on the battlefield endangered the entire community and was collectively punished from early on. By the Roman fustuarium, a disgraced military force divided itself into tens, picking by lot one man from each group to club to death. The Germanic tribes hanged deserters in trees.¹⁶ Other offenses that violated the community in early law included treason, incest, bestiality, and witchcraft leading to death.¹⁷ In ancient Greece and Rome, aborting a healthy fetus was a crime against state and soci­ety for eliminating an economic and military resource.¹⁸ In com­mon law, maiming someone was illegal not so much because of the harm done the individual as for depriving the king of an able­bodied subject to defend the realm.

Crimes with public consequences could thus not be left to indi­viduals to handle. Private prosecution of public crimes misaligned the incentives. Why should victims pursue offenders if they would receive no restitution? Or, conversely, they might undermine pub­lic trials by defaulting to informal plea bargains or even by drop­ping (or only half-heartedly pursuing) a prosecution if paid off by the defendants.²² Outlawing such side payments, known as “com­pounding” (in effect a circuitous form of restitution), the state sought to force dispute resolution into public forums. In sixth-century France, Merovingian kings forbade private settlements for theft.²³ In the thirteenth and fourteenth centuries, robbery victims who got their goods back from thieves and agreed to keep quiet could be prosecuted for theftbote.2⁴ Private deals to settle misdemeanors remained legal, but for felonies they were forbidden in eighteenth­century Britain. Courts fined those who sought to sidestep the judi­cial machinery by offering rewards for the return of stolen property rather than prosecuting theft officially.²⁵ Even today, police and retailers are at odds over whether shoplifters should be prosecuted or merely arm-twisted into making restitution.²⁶ In the US, offering to accept restitution for a felony itself became a felony. The state could prosecute on victims' behalf even without their consent.²⁷ Public crimes demanded public punishments.

Vengeance and restitution would no longer do since both took an individual approach to crime. Restitution grew incompatible with public punishment once the state began taking at first a cut and then soon all of compensatory payments, directly competing with the victims. From the vantage of vengeance, restitution's basic assumption—that money resolves every conflict—was profoundly amoral. Higher principles had been violated that money could not assuage. Do not accept restitution for a murder, the Old Testament commanded, but kill the killer.²⁸ Even where compensation was customary, vengeance lurked offstage. Medieval Icelanders happily restituted most offenses, but not the killing of family. “Kin should not be carried in one's purse,” they cautioned.²⁹ How could money make good murder, rape, or assault—or adultery, defamation, and other loss of honor? How could restitution pay the price of living in fear of crime or for seeing other public goods violated?³⁰ For crimes that could not be compensated, early Germanic law demanded whipping or enslavement. Later, life itself became the tribute paid.³¹ In the long run, excepting a few vestiges, as in Sharia law, the inabil­ity to compensate for certain offenses and the need therefore for public punishments became deeply embedded in our moral sense.

Vengeance in turn threw up a different dilemma. It refused any compensation other than an equivalence of pain and suffering. Like compensation, vengeance was pursued by kin groups, yet it gave voice to a collective system of value alternative to and competing with the state's pretensions to speak alone for society. Wounded honor was an inherently collective affront, an injury that both was created and had to be restituted socially. Dishonor injured its victims' social personae, affecting how they were seen by others.

All of society, not only the immediate victim, was involved. Ven­geance was so pressing a motive and was so hard for the state to quell precisely because—tapping into the burning insistence on retribution—mere restitution could not assuage profound injury.

In the long run, neither restitution nor vengeance could master crime's social consequences. Public offenses demanded public pun­ishments, and only the state could mete out such sanctions. Even those hoping to reintroduce restitution to modern penal codes admit its limits. Allowing restitution for rape, for example, would legalize sexual inequality, nor could crimes against humanity be restituted.³² Some crimes are ultimately irreducibly public. As the state gradually assumed the adjudication earlier left to the impli­cated parties, it emphasized crime's collective nature. The shared moral codex underlying any society presupposed that violating its norms endangered everyone, not just immediate victims. Shoulder­ing responsibility for punishing public wrongs, the state thus took over the role first played by God.

Most religions have penalized sins as offenses against the gods.³³ That collective offenses endanger all has been a leitmotiv across cul­tures and ages. In the Old Testament, crimes against God threat­ened all of Jewish society, requiring death for the offender.³⁴ After the Homeric period, the Greeks grew convinced that criminals' presence polluted society, endangering everyone and requiring the state to punish on behalf of the gods.³⁵ In Oedipus Rex, a plague looms because a killer remains at large. Once the Roman Empire con­verted to Christianity, heresy became an offense against the state, an aggression against everyone. Pagan sacrifice was made a capi­tal crime as of the fourth century. Justinian's code of 529 CE held blasphemy responsible for famine, earthquake, and pestilence.³⁶ The Aztecs feared drunkenness as a violation that opened a por­tal for sacred wrath to enter mortal society. Peruvians were certain that violating Inca commandments hurt everyone, not just them- selves.³⁷ Sodomy was thought to have provoked God to unleash the plague on fifteenth-century Venice.³⁸ In early modern Europe, swearing and blasphemy were considered dangers to all, not just to the individual sinners, as was bankruptcy by Dutch Calvinists.³⁹ English Puritans feared God punishing all for the presence of sin. Austrians of the same era were convinced that vice, frivolity, and wrongdoing had angered God, bringing on the Turks and inflation. Cotton Mather, the New England Puritan divine, told a convicted murderer he had to die lest the nation be polluted.⁴⁰ In our own day, the AIDS epidemic and other catastrophes have been blamed on sin.⁴¹ The logic of collective affront is familiar and persistent.

In Hebrew law, public offenses demanded collective punishment. For idol worship or the serving of other gods, the entire community had to expiate. Stoning—definitionally carried out by the group— was often used for crimes considered a collective threat. Moses was commanded to bring out a blasphemer to be stoned by the congre- gation.⁴2 Banishment, found in Dracon's code in the seventh cen­tury BCE, was also common in early German and Nordic societies. It was collectively enforced: anyone was at liberty to kill a returning exile. Tacitus noted that the tribes of Germany still settled murder privately, but those who offended against the collective (by retreat­ing in battle or deserting to the enemy) merited public punishment. Six centuries later, the Carolingians imposed public punishments, not just private restitution, for inherently collective offenses such as counterfeiting, false witness, and perjury. In Anglo-Saxon England, incest, witchcraft, and bestiality were treated as crimes punishable by the community, not just by the victims.⁴³ In eighteenth-century England, two-thirds of those convicted of forgery were executed. Other than murder, no crime was more severely punished.⁴⁴ For the Incas in the Andes, removing a bridge was a public offense on par with adultery, murder, or blasphemy, much as stealing bee hives was a capital offense among the Germanic tribes, whose only source of sweetness they were.⁴⁵ At the end of the Roman republic (ca. first century BCE) offenses earlier considered private (delicta) came to

be seen as public. The concept of iniuria (a wrong or outrage) was expanded to include violating private homes or corrupting minors and women. Laws now outlawed adultery, electoral corruption, the bearing of arms, public violence, criminal gangs, and interference with the administration of justice.⁴⁶

This logic of collective offense was also extended to crimes that on the face of it did not affect the entire community, homicide above all. Among the ancient Jews, a murderer's blood was needed to expiate this crime against both God and humans.⁴⁷ In Homer, however, homicide concerned only the victim's family, who pur­sued the matter. If the dying man forgave him, the killer could not be charged, and the victim's relatives were released from the obligation to prosecute. Despite his other reforms, the Athenian statesman Solon left homicide a private offense. But in the sixth and seventh centuries BCE, murder began to be considered a crime not just against the victim but also against the gods, who might be angered if it went unpunished.⁴⁸ The Roman state in turn made pur­suing murderers its duty, no longer left to the victim's kin. Murder gradually became seen as an offense as much against king as against kin.⁴9 Even before the Conquest of 1066, the English monarch directly prosecuted weighty crimes, such as homicide by stealth. By the early twelfth century, the Crown had assumed jurisdiction over homicide and other serious crimes generally, forbidding private set­tlements. Killings and other felonies that had earlier been atoned for by restitution were now punishable by death.⁵⁰

As caretaker of common interests, the state also began to decide whether to prosecute at all. In the early accusatory systems, victims challenged offenders and might themselves be punished in the same manner if they failed to prove the case. Later, third parties not directly implicated in the offense were allowed to file charges, too. As Solon reformed Dracon's code permitting any citizen to avenge the wronged, he institutionalized the sense that certain transgres­sions harmed the whole community.⁵¹ The graphe allowed any male citizen, victim or not, to prosecute public offenses, such as military desertion, political bribery, temple robbery, idleness, theft, perjury, hubristic conduct, and sycophancy. One notable reform was to for­bid parents to sell their children into slavery. Such rights had to be enforced by third parties since minors could not act against their parents?⁵²

Roman public law increasingly upheld common standards that could not be set aside by an understanding between the parties. Under Augustus, whether to pursue adultery ceased being the decision only of the woman's husband or father. He could take the initiative, but so could third parties. A husband who took no action against his wife caught in flagrante could be punished as a procurer (lenocinium).⁵³ In seventh-century Visigothic law, the king could prosecute adultery if the husband, children, or other relatives refused to, and they, in turn, could be penalized for negligence. Charlemagne's capitulary of 802 punished adultery as a crime against the Christian community.⁵⁴ In the same spirit of forbidding offenses even in the absence of a direct victim, a woman who voluntarily aborted could be punished. Acces­sories to suicide could also be found guilty.⁵⁵

Public crimes developed apace during the Middle Ages. Public utility, Pope Innocent III argued in the early thirteenth century, demanded that crimes be interdicted.⁵⁶ Charlemagne's tribunals had already ordered and enforced a peace rather than just mediating between warring parties, who might comply or not. Besides excom­municating the disputants, the medieval peaces mooted the idea of crime and disorder harming the “common utility.”⁵⁷ Even restitu­tion was harnessed to atone for collective damages. The proximate victims received their bit. But church and state increasingly also got a part—since the larger community too had been harmed. Sin offended God's honor, Anselm of Canterbury insisted in the elev­enth century, and a miscreant's payment must reflect that additional damage.⁵⁸ An offense did not vanish just because the victim died or refrained from prosecuting. Judges had an obligation to persist, the fourteenth-century Italian jurist Bartolus argued, so as to defend the community.⁵⁹ From the thirteenth century on, witnesses could be compelled to testify. Otherwise, the canonist Hostiensis argued, the innocent would be damned, the guilty absolved, and crimes go unpunished.⁶⁰ As of the Sachsenspiegel (1221-1224), the most impor­tant compilation of law in the Holy Roman Empire, a general public proscription of offenses was absorbed into customary law.⁶¹ Half a millennium later, when the French revolutionaries proclaimed that all offenses were attacks on the public, the idea of crimes as inher­ently social events had been long in the making.⁶²