The Judiciary as Voice of the Public Interest

Out of the state's growing responsibility for punishment grew the now common distinction between torts and crimes—torts as harms that individuals restitute among each other and crimes as acts of col­lective concern.

Theft, for example, early on became the state's business.⁶⁶ In Eng­land, with its accusatory judicial system, any citizen could pursue any offense, acting as a public prosecutor. The prosecutor, when that position eventually developed, had no powers beyond those of every male citizen.⁶⁷

As crime became regarded as an offense against the public, the courtroom emerged as the arena where law prevailed. Three snap­shots from larceny's evolution illustrate the development. In Roman law, the nocturnal thief (whose evil intent was presumed manifest) could be killed on the spot.

After collapse of the ancient world, courts slowly developed once again in the Middle Ages, extending the state's investigatory and adjudicatory powers. Feudal lords dispensed justice over their subor­dinates. Emerging as the primus among lords, the king did the same to them—in England after the Conquest of 1066 and in France two centuries later. Settling disputes in his court, the monarch became the first quasi-professional judge, the place lending its name to the institution.⁶⁹ Eighth-century English statute warned subjects against taking the law into their own hands instead of going through courts. By the thirteenth century, French courts had changed from locals mediating among themselves to royal power imposing verdicts increasingly based on abstract concepts of justice and legality.⁷⁰

Extrajudicial, indeed extraterrestrial, mechanisms of judgment such as oaths, ordeals, and combat were eliminated across Europe by the thirteenth century.⁷¹ The jury system that then developed in England allowed what—from Roman law's perspective—must have seemed wildly capricious: letting bystanders decide weighty issues of guilt and innocence in private deliberations. Max Weber compared juries to oracles, neither of them required to give rational grounds for their decisions.⁷² With the twelfth-century revival of Roman law on the continent, combined with canon law, the old accusatorial process pitting plaintiff against defendant gave way to the reintroduction of an inquisitorial approach.

Crimes had earlier been prosecuted only when someone had been harmed. Twelfth-century legal reforms now identified a pub­lic interest. An individual might not have a specific concern in a given crime, Hostiensis argued in the thirteenth century, but all had a general interest in every crime.⁷⁵ English criminal law shifted from largely private agreements on monetary compensation to royal courts and justice, with death as the usual punishment.⁷⁶ By the early fourteenth century, France had institutionalized the prosecu­torial function in the person of the procureur du roi, who could act even without a private complainant. Two centuries later, he alone could seek serious criminal sanction, even given a plaintiff. By this time, the German lands were following suit. In the Carolina, the first German penal code from 1532, private parties could still initi­ate prosecution, but then an official public investigation took over.⁷⁷ Queen Mary's mid-sixteenth-century reforms in England decreed that plaintiffs could no longer terminate actions at will. Once a case was initiated, the authorities prosecuted it to its conclusion. Rus­sia, too, shifted from private to public law, with harsh punishments instituted from the sixteenth century.⁷⁸ As late as the sixteenth cen­tury, extrajudicial settlements were still common in Poland and Hungary, and they remained so in Bourbon France and colonial North America in the eighteenth century.

The accusatorial system in England and parts of northern Europe relied on juries. Like the inquisitorial method, juries provided an alternative to oaths, ordeals, and other appeals to divine interven­tion. The defendant's peers instead decided the outcome.⁸⁰ Though less dramatically than in inquisitorial courts, where judges ruled, juries, too, extended the state's reach. Prominent local men, they served as the central authorities' proxies. Under Charlemagne, they had to answer the judge's questions about local crimes.⁸¹ In tenth­century England, the leading local nobles were obliged to accuse and arrest those suspected of crimes. Two centuries later, under Henry II, this responsibility was given to a presenting jury, a forerunner of the grand jury, which reported crimes committed locally. By the thir­teenth century, two-thirds of murder trials in England were initiated by the authorities, not by appeal from the victims' families.⁸²

In other respects, too, England's accusatorial system concen­trated initiative in the state's hands, following the continental lead. From the mid-fifteenth century, juries ceased being self-informing, and Crown officials instead collected the evidence presented to them.⁸³ Reforms in the mid-sixteenth century made the process more public. Plaintiffs continued to prosecute cases, but they were now obliged to testify. If there was no accuser, the justice of the peace became more like a public prosecutor. He actively investigated the crime, organized the case, and rounded up the accused and wit- nesses.⁸4 In the eighteenth century, the plaintiff still had to press the authorities to indict, prepare the trial, assemble witnesses, and present the evidence in court.⁸⁵ But by the nineteenth century, the English authorities finally took full responsibility for apprehending and prosecuting criminals.

As a further arrow in the authorities' quiver, the legal revolution of the twelfth century revived the Roman doctrine of infamia, now called mala fama. Ecclesiastical courts could prosecute notorious suspects in the absence of an offense, accusation, or accuser. Even without a harmed party, the community's sense of violation was actionable.⁸⁶ To avoid baseless accusations, plaintiffs had earlier “subscribed” to the potential punishment by undertaking to suf­fer the same if they failed to prove the accused's guilt. With vic­tims understandably reluctant to become plaintiffs, a fully-fledged accusatorial system was hobbled. But from the twelfth century, a new system of denunciation before ecclesiastical courts allowed plaintiffs to accuse without having to prove they were right or to risk being punished if they could not. Judges could now proceed on the basis of denunciation or other evidence of notorious offend­ing, gathering testimony and prosecuting on their own.⁸⁷ By the fif­teenth century in Italy, prosecution on the basis of bad reputation, malum famum, was commonplace.

As the state became the primary punisher, sanctions were no lon­ger carried out by victorious plaintiffs but by professionals acting for the court. In fifth-century Athens, the victims' families executed murderers. In Visigothic law, accusers sometimes tortured the plain­tiffs but were liable should they die.⁸⁸ Stoning, as in Jewish law, meted out punishment by the community as a whole or at least by a representative sample.⁸⁹ But Plato already described a parricide's execution by public magistrates, who then stoned the dead body for good measure.⁹⁰ And in classical Athens, executions were car­ried out by a professional known as the “public man.”⁹¹ With the Romans, the public executioner became a fixture—arguably the sec­ond bureaucrat, after the tax collector, though of course even more socially ostracized. The Middle Ages, too, saw official executioners,

Crime as a Social Problem 71 sometimes moonlighters from other despised professions but full­time employees in larger towns. To judge the significance of this institution, consider that in China's Warring States era, kin were expected to take vengeance on official executioners who had ful­filled their duties against the family's relatives.⁹² However strong our sense of filial piety, the idea that we should kill the executioner has long bowed before the state's authority.