Weregild?

There is something very strange going on in Missouri. In a recent decision, the courts implied that the payment of a fine to a victim's family could be used to reduce a defendant's sentence. When combined with the recent discussion of "victim's rights" and the concern for alleviating the emotional pain of the victim's family, we are fundamentally altering the legal principles of the country. We are in fact opening a Pandora's box.

The concept of "blood money," that the perpetrator of a crime owes something to the family of the victim, is a very old idea with deep roots in our culture. In medieval Germany it was known as the weregild. Rather than executing someone for murder, the family owed cash to the bereaved to make up for the pain and suffering.

So if this idea goes back so far, what could be wrong with it? Well, slavery was a tradition too. The principle of the weregild, of a victim-centered notion of criminal law, was downplayed in the modern era. When someone breaks the law, he is committing a crime not just against the victim but against the community. Yes the victim (if alive) or the victim's family can sue for damages. But that is a civil suit, which is conducted under very different principles. The criminal suit is that of the community charging a defendant with having broken the social contract. This is where the ideas of natural law, deterrence, public safety, and all the other justifications for public punishment play a role. The nomenclature of cases highlights the differences between the two kinds of suits: Smith vs. the Robertsons would be a civil suit, Jones vs. the State of Missouri a criminal trial. See the difference?

There is a very good reason we do things this way. If we mixed up criminal and civil trials, not only would be (further) undermining the sense that we share a common life with joint rights and duties. We would also transform the law into an instrument for revenge rather than justice. And we would be headed further down the road of commodifying human life. We don't charge people for voting, we don't allow people to sell organs or their unwanted children, and we don't allow people to get off the hook by paying a big fine. Doing so puts a price tag on humanity, and differentiates the worth of people based on their financial resources. And that is something we as good democrats should be against.