The State Emerges

As divine and secular law gradually separated, crime fell to the state, leaving sin to church and conscience. Since the state came to handle punishment alone, hell—as a place of deterrent torment—played a less necessary role in mainstream theology.⁴⁷ Yet, seen in histo­ry's long scope, the state only recently awoke to what we regard as among its primary duties: laying down the law, punishing transgres­sion, maintaining order.

Only gradually did the state command a role in resolving conflict. Disputes had been sorted by the interested parties, coming to agree­ment or feuding in its absence. Feuds eventually gave way to a pub­lic resolution of conflict in trial-like circumstances. Court procedure was well elaborated already in ancient Babylon, almost two millen­nia before Christ.⁴⁹ From the seventh century BCE, even before law had been written down, men acting as judges set up informal courts in Greece to adjudicate disputes between parties who would jointly choose a venue and agree to adhere to the judges' decision.⁵⁰ In the Iliad's trial scene, the disputing sides find judges, a framework of adjudication, and two talents of gold for the best judgment. Such quasi-courts slowly managed to ground their decisions not just, as earlier, on the claims of the powerful to rule but also on laws that were accepted as applying to all citizens.⁵¹

As the decisions of these early Greek informal courts accumulated and were abstracted, they gave rise to a judicial framework.⁵² Rules were imposed: parties to agree on arbitrators, decisions handed down under oath and binding, a settled issue not to be raised again, and so forth.

But even as the authorities promulgated laws, much remained left to self-help. Awarded a settlement in ancient Greece, defendants themselves still had to enforce it. Cases were heard before courts, but Roman plaintiffs acted as their own prosecutors.⁵⁷ In medieval com­mon law, victims' widows and children personally dragged killers to the gallows, and a violated woman herself castrated and blinded the rapist.⁵⁸ Justifiable homicide is the polite fiction whereby a weak state agrees that certain killings are legitimate. Ancient Greek and Roman law defined justified homicide expansively, as did most West­ern legal codes for the next two millennia.

Only gradually did the state grow able to define, police, and pun­ish homicide. Early Chinese emperors might pardon murderers, but, recognizing that victims' families would still seek to avenge their kin's death, in the fifth century they began compelling the pardoned to move far away.⁶² In medieval England, a husband could no longer kill an adulterer having sex with his wife, but as a tres­passer the cad was still a sitting duck. In the late seventeenth cen­tury, catching a wife in adultery remained sufficient provocation to reduce a charge of murder to manslaughter.⁶³ Yet by the thirteenth century killing outlaws and obvious felons on the spot was consid­ered frontier law in England, no longer allowed in most localities. Justified killings were eventually permitted only in self-defense. In the thirteenth century, a thief caught in the act could be killed with impunity only if he also posed a danger. And self-defense grew limited in turn. In England by the mid-thirteenth century, even if in danger, those able to flee committed a crime if they instead struck and killed in self-defense.⁶⁴ The duel, which we return to later, was also part of this story of restricting justifiable homicide. It allowed certain sorts of people to kill each other by following particular rules.

Yet, as so often, the law here bears continuing traces of its past even in contemporary statute. Violent self-help remains tolerated today.

Several US states allow mere manslaughter charges for killing spouses caught in flagrante.⁶⁶ Until 1975, a French husband catching his wife in the act at home could justifiably kill both her and the lover. So could a Texan husband.⁶⁷ In Italy, sentences were reduced under sim­ilar circumstances until 1981.⁶8 Even severe assaults today are still less likely to lead to arrest, prosecution, and conviction if between related people—practically speaking, husbands against wives.⁶⁹ Temporary­insanity pleas are used as technical work-arounds to treat violence against women leniently.⁷⁰ Stand-your-ground laws permit citizens to take the law into their own hands to defend themselves. In many nations, such as Britain, such laws have been whittled back. The state jealously guards its monopoly on violence, forbidding citizens to act as their own avenging angels. But in the United States, the citizen's duty to retreat rather than to fight is defined narrowly, sometimes allowing lethal self-defense.⁷¹ A similar logic is used when abused women invoke battered-wife syndrome to expand the parameters of the imminent threat they need to plead self-defense.⁷²

Before the nineteenth century, the fundamental reality of enforcement and punishment was the state's absence. Some crimes, as we will see, did concern the state from the start—especially trea­son, where it was the target. But most violations were left for the interested parties to handle. Until the state imposed its judicial monopoly, offenses were dealt with largely in two ways: vengeance and compensation.⁷³ Compensation was the overarching concept because in effect restitution was provided by both methods, mea­sured either in blood or in material value.⁷⁴ Restitution and ven­geance alike righted the moral imbalance created by harm, either in the eye-for-an-eye logic of the lex talionis or by means of fungible values—money, oxen, slaves—that were considered equivalent.⁷⁵

If all parties agreed, compensation resolved the issue once and for all.

Vengeance was a major obstacle to the state's hopes of pacifying its territory internally. During the Warring States period in China (ca. 400 BCE-200 CE) unbridled vengeance challenged the state's grip, with officials forced tacitly to condone it.⁷⁹ Feuds, in effect, negated the state—with kin groups treating each other as the pri­mary political units and refusing to recognize any higher authority than honor. Hopes of taming vengeance's savagery encouraged the state to expand its role in administering justice.⁸⁰ Once embarked on the business of adjudicating disputes, the state therefore sought to curb vengeance while promoting and institutionalizing compensa­tion instead. In the Hittite edict of Telepinus (ca. 1620-1600 BCE), a victim's family chose between retaliation and restitution. But later laws ruled out retaliation.⁸¹ By the time described by Homer, half a millennium later, the Greeks had largely managed to stamp out blood feuds. In the Iliad, blood is never exacted for blood.⁸² The Romans, too, suppressed vengeance early. And Sharia law restricted blood feud in part by permitting retaliation only after judicial authority had determined the culprit's guilt.⁸³ In the Old Testament, David rejected the vengeance taken by two of his followers on the son of his enemy Saul. He killed the killers who, mistakenly expect­ing to be rewarded, had brought him Ish-Bosheth's head.⁸⁴

Slowly, wherever it could, the state wrested control away from kin.

England, with its centralized state and developed court system, was among the earliest to match the ancient empires' achievement. By the thirteenth century, feuds among the nobility had been brought under control.⁸⁸ On the continent, that took another two centuries. The medieval peaces—a church initiative—sought to multiply the holy days on which killings were forbidden, thus pacifying more of the year. A Saxon edict from around 1221 ruled that revenge could be exacted only on Monday, Tuesday, and Wednesday, but the rest of the week was to remain free of conflict.⁸⁹ Renaissance Italian fami­lies' savage vendettas were controlled only slowly by emerging abso­lutist states. In sixteenth-century Florence, peace treaties among warring families, enforced by posted bonds, sought to end feuds. In the fifteenth century, the Spanish monarchs Ferdinand and Isa­bella imposed the Santa Hermandad to enforce royal justice against their warring aristocrats.⁹⁰ The Imperial Peace Statute of 1495 in the Habsburg lands similarly outlawed feud and private warfare. And honor crimes were brought under court control in Russia.⁹¹

By the 1500s, feuding had largely been replaced by the official judiciary, at least in the European core, where the state was stron­gest. Even in a largely pastoral country such as sixteenth-century Castile, where only a quarter of males could read, lawyers litigated on behalf of a menagerie of plaintiffs over quotidian disputes.⁹² Conflict resolution had shifted from bare knuckles to the courts. But in the peripheral worlds, where the state's sway was weaker, feuds continued: the Scottish Highlands, Friuli, Liguria, Valencia, not to mention islands such as Sicily, Corsica, and Sardinia. For more than five hundred years after its ninth-century founding, Iceland refined its elaborate system of law, but it never found a way of enforcing it other than by feud. When the Icelanders finally wearied of cycles of bloodshed in the thirteenth century, they invited the Norwegian king to establish order. Highland Scottish clans grew tired of fight­ing in the late sixteenth century. They asked the royal authorities to arbitrate disputes and threatened to arrest their own members who refused or reneged.⁹³ By the time of the revolution, French deputies still worried that if the penal code legitimized killing in defense of others, not just oneself, it would give carte blanche to what were by then considered Mediterranean habits of vendetta, known from Italy and Corsica.⁹⁴

In Giuseppe Verdi's opera La forza del destino (1861), the brother of a seemingly wronged woman is delighted (“What great joy!”) when her lover is healed of a mortal wound—but only because this affords the brother the chance to kill the lover once and for all, avenging the lover's killing of the siblings' father. Feud was hard to brake, the logic of its momentum unrelenting. Even deep into the nineteenth century, the Japanese government still authorized and rewarded private parties seeking vengeance.⁹⁵ Feuds continued unabated across the Mediterranean and Balkans. In eighteenth­century Corsica, with feuding men holed up in fortified houses, only women could till the fields. A century later, feuds endured, half of them lasting at least fifty years. Deep into the twentieth century, such disputes claimed hundreds of victims annually in the Balkans.⁹⁶ In Albania, dozens of families remain sequestered in their homes today, too fearful of vengeance to venture out. Clan feuds in Gaza claimed at least ninety deaths in 2006.⁹7

Feud, however, was not anarchy. Where centralized authority had yet to impose rules, feud was a means of settling disputes. All— strong, weak, or equals—had to resolve differences knowing that an unacceptable solution would prolong the conflict and that fortune or recrystallizing coalitions might reverse today's outcome. Feuds were stylized rituals whose procedures limited the worst excesses. The talionic principle of an eye for an eye in Jewish, Greek, Roman, and Sharia law was meant to set an outer limit to vengeance. Sharia exempted singular organs—noses and penises—from amputation.⁹⁸ Where feud was most institutionalized, as in medieval Iceland, the rules on vengeance killing were incorporated into the law of the land. In early modern Germany, feuding was rule bound, includ­ing negotiations before hostilities and a challenge delivered prior to violence.⁹⁹ If followed, the feud's fundamental logic was self-limiting: reaction only in proportion to provocation. The feud might continue interminably, but without necessarily escalating. Only men and only adults usually could be killed. Icelandic law spelled out the allow­able: immediate killing for sexual assault, say, but acts of vengeance over the subsequent year for less-serious blows. Those who violated truces became social pariahs. Feuds here were a stabilizing ritual that channeled conflict into formalized arenas for arbitration.¹⁰⁰ In Catalonia, prospective avengers registered their claim by letter to their victim, waited ten days, and targeted only the offender him­self. Having withstood an all-out assault on its house for three days, a clan in modern Montenegro was considered vindicated. Thereaf­ter, the feud unfolded more moderately as small-group attack and individual ambush. However awful, feuds moderated even worse horrors—the apparent paradox dubbed the “peace in the feud.”¹⁰¹

Vengeance competed directly with the state's claim to be the only enforcer of order. In comparison, compensation had the advantage of quick and bloodless resolution—so long as all agreed. No wonder authorities preferred it to vengeance. A bull killed someone: the Old Testament recognized the owner's theoretical liability to pay with his own life but suggested ransom instead.¹⁰² From the beginning, the law eagerly sought to regularize restitution. The earliest extant code (Sumerian from ca. 2050 BCE) tallied the precise cost of infrac­tions: ten silver shekels, say, for cutting (off?) a foot. So did the Twelve Tables of Roman law. The sixth-century laws of the Salian Franks stipulated costs for stealing pigs, depending on their condi­tion and age, and other animals, down to bees.¹⁰³

Wergeld, the restitution paid in Germanic law for injuries or kill­ings, precisely tabulated the cost of mutilation and dismemberment as well as the worth of different lives. Modern actuarial tables are less detailed than these medieval codes. ^thelberht's laws from seventh-century Kent finely calibrated prices, both by damaged body part and by whether the victim was slave, freeman, or priest. Front teeth were worth more than back teeth. Damage to incisors was legally weightier (counting as mayhem) than damage to molars or grinders, not only since it was more disfiguring but also because the loss of incisors disadvantaged victims in a fight. Different fin­gers and their nails had different prices. Whether ears were ren­dered deaf, cut off, pierced, or lacerated mattered, as did whether bones were laid bare, damaged, or broken and whether the penis was destroyed or pierced partially or fully. Such detail pertained not only to bodily injuries but also to every conceivable violation of women and other forms of property.¹⁰⁴

These finely calibrated costings revealed how the law still was only the intermediary between kin groups negotiating what they owed each other.¹⁰⁵ Though less bloody, compensatory law—like vengeance—was ultimately incompatible with the state's ambitions to be the only actor to settle conflict. Restitution was therefore even­tually suppressed, too. In ancient Greek and Jewish law, compensa­tion was eliminated altogether.¹⁰⁶ Christianity, however, accepted restitution and thus obliged Christian states to spend the following centuries attempting to eliminate it. The state took its own revenge for being eclipsed by beginning to claim part and ultimately all of the compensatory payments for itself.¹⁰⁷ Early Anglo-Saxon law already distinguished wite, or fines that belonged to the king, from wergeld.¹⁰8 In early English law, communities unable to identify a killer paid murdrum to the king. Because a homicide breached the collective good of the peace, feudal lords claimed part of the wergeld paid to kin. By the twelfth century, compensation in England was paid to the church, king, or community, not to the victim's fam­ily.¹⁰⁹ In sixteenth-century Seville, mothers and widows could still accept compensation from the murderers of their sons and hus­bands. But highway robbery and treason were not thus atoned. By the seventeenth century, restitution had largely been eliminated, at least in northern Europe.¹¹⁰ Rather than allowing injured parties to be compensated, the state itself now collected what had in effect become fines.

Restitution was thus largely eliminated from the penal code, its logic now confined to civil law and insurance. And yet reintroduc­ing compensation to the criminal law remains today a widely dis­cussed proposal, sometimes called “restorative justice.” Reformers note that the victims receive nothing besides the satisfaction of see­ing offenders punished.¹¹¹ If criminals restitute victims, it is argued, rather than making amends to and through a neutral state, they will better grasp the evil they have wrought.¹¹² Allowing offend­ers to buy themselves out of prosecution by compensating victims, however, is still considered beyond the pale, although it remains possible in Islamic law.¹¹³