In this article I attempt to briefly cover some of the history of Anglo-Saxon law from the time the various tribes migrated to Britain. By no means is this meant to be comprehensive, nor am I an expert on the subject. The goal is simply to try to understand how customary, competitive systems of law and justice slowly transform into monopolized systems, and to analyze the natural degression that arises out of the perverse incentives resulting from a state.

RECIPROCAL LAW AND JUSTICE

Bruce L. Benson, economist and senior fellow at the Independent Institute, has outlined six main characteristics of customary systems of law and justice:1

1. Predominant concern for individual rights and private property

2. Reciprocal arrangements for protection and support in a dispute

3. Standard adjudicative procedures established to avoid violent dispute resolution

4. All offenses treated as torts with restitution payments to the victim

5. The threat of social ostracism used to enforce laws

6. An evolutionary process of developing customs and norms

Amazingly the manner in which customary law functions in disparate times and locations across the globe is very similar. But this is not surprising when you consider the incentives at work.

In a primitive setting, individuals linked by kinship or geographical proximity have an incentive to support one another in the pursuit of justice when an offense against persons or property has been committed. Everyone supporting a victim is effectively insuring themselves against crimes since they can expect others to return the favor in case something happens to them. These informal and implicit arrangements form the basic political bodies which eventually become subgroups of ever higher order organizations that ultimately encompass entire societies.

Disputes between members of these groups can either be resolved peacefully or violently, and while both have occurred on countless occasions, over time the peaceful option is preferred to the much costlier violence. Rather than engaging in “blood-feuds,” these informal units eventually develop a system of adjudication and restitution in order to avoid bloodshed. If the aggressor and victim can be brought to resolve their dispute peacefully, and under terms which both parties view as reasonably fair, then violence can be avoided and order maintained.

Many systems of customary law have developed an arrangement where the victim and the alleged aggressor each chose an arbitrator, and those arbitrators chose a third, such that they can hear the testimony and make a definite decision by vote. In all cases, the punishment for the aggressor was to pay restitution to the victim.

The amount of restitution owed depends upon many factors, and it’s common for those factors to include the “man-price,” or “honor-price,” of the victim, the extent to which the offender admits guilt or attempts to cover up the act, and whether or not the guilty is a repeat offender. The “honor-price” of the victim depends upon their rank within society, and could fall or even drop to zero for bearing false witness, refusing to submit to adjudication, or committing repeat offenses.

There are no “crimes against society.” Instead, every instance is treated as a tort between private individuals. The restitution in turn incentivizes victims to pursue justice because they can expect a reward.

As these arrangements develop voluntary agreements known as “sureties” are meted out whereby individuals agree to cover restitution costs in case one of their own commits a crime and refuses to submit to adjudication. The enforcement of those relationships relies on the threat of ostracism. If an individual refuses to pay restitution they become an outlaw with no protection under the system of law and justice. That provides an incentive for groups to reject the risky and costly members prone to criminal activity, and it also deters criminals from refusing to submit to adjudication.

Certainly, the threat of ostracism would have been very serious as the individual would have no recourse if a crime was committed against them, not to mention the fact that they would be forced to live alone thereby losing out on the huge benefit of the division of labor.

The body of law that emerges from these interactions, which is first passed down orally and eventually written down, is based on precedent. Unlike legislation where “laws” are created by decree and enforced from the top down, precedent law embodies the cumulative decisions made by arbitrators in the endless cases over which they’ve presided. Without any central authority, customs and norms develop and become widely accepted, and the force of those customs depends upon that widespread agreement and recognition.

As these systems develop further certain individuals emerge which are both highly respected and wealthy as a result of their honor, skill, and productivity. They eventually become integral to the process of law and justice even though they initially maintain no special privileges over their provision. These were the first “kings,” although they weren’t actually heads of any state.

An individual which didn’t have the power or money to pursue justice could call upon one of these “kings” to help them. Thus, the first kings were not hereditary monoliths controlling vast swaths of land, they were crime-insurers with no special rights. Victims could transfer to kings their restitution rights and the kings could use their high social standing to force the alleged offender to submit to adjudication. Their reward then would be a share of the monetary restitution awarded to the victim.

The lineage of hereditary heads of state that emerge time and time again throughout history are the result of customary law devolving into monopolistic law. Over time restitution was slowly replaced by fines paid for “disturbing the king’s peace.” Anglo-Saxon law in particular shows a clear de-evolution from customary norms into a top down bureaucracy which began to monopolize the provision of law and justice even before the Norman invasion. That de-evolution has culminated to produce most of the legal traditions we see today in America including legislation, bicameralism, taxation, felonies, justices of the peace, sheriffs, jury trials, plea bargaining, public prosecutors and judges, imprisonment, warrants, subpoenas, fines paid to the state rather than the victim, etc.

ANGLO-SAXON BRITAIN

The Anglo-Saxons descended from German tribes which had kinship as the basis for their reciprocal systems of law and justice. The kindreds were responsible for protection as well as the pursuit of restitution if an offense occurred. These groups represented surety relationships whereby members were liable for any offense committed by one of their own. The amount of restitution was determined by the “wergeld,” or “man-price” of the victim.2

By the 10th century, the kindreds had become legally recognized institutions called hundreds which were comprised of smaller “tithings,” although they were no longer necessarily based on kinship. The hundreds were voluntary organizations used for protection and the enforcement of the law. Anyone who was not part of a hundred would have no support in the protection of their property or enforcement of the law if an offense were committed against them, so everyone had a strong incentive to join a hundred. Additionally, because everyone within a hundred was mutually liable for the actions of each member, hundreds had an incentive to reject anyone not of good character who was prone to criminal activity. One member of the hundred, the hundredsmann, was recognized as the chief of the hundred and functioned to help bring about dispute resolution.3

If a dispute arose within a hundred, suitors from each of the tithings acted as representatives of the court and facilitated the selection of twelve individuals to act as arbitrators. If the dispute was between members of different hundred jurisdictions there was a shire court which utilized those same suitors from either hundred to appoint twelve arbitrators.4 All offenses were treated as torts between private individuals payable by restitution, and it was the responsibility of the victim to gather the support necessary to pursue that restitution. Refusal of the defendant to pay could result in outlawry and loss of protection under the system of law and justice.5

If a victim was not powerful enough to pursue restitution they could call upon a king to do so. If that happened the defendant would not only have to pay the victim, but also the king, so the cost would increase considerably.

At least at first the kings did not have any special rights over the provision of law and justice, they only functioned to facilitate law enforcement if someone could not get their cause heard within their own hundred jurisdiction. Initially, the kingships in Britain in particular evolved from chieftancies which were tribal war leaders that led the first raiding parties into the island (note: the reasons for the migration to Britain are still a topic of debate).

Once established, the Anglo-Saxon kingdoms were constantly at war with one another, and by the 8th century Britain began to be invaded by the Vikings.6 Even before the Norman invasion of the 11th century, the Anglo-Saxon system was devolving towards a monopolistic one as a result of the internal and external warfare. Over time, restitution to the victim was slowly replaced with fines for “disturbing the king’s peace,” and outlawry resulted in forfeiture of goods to the king.7

Throughout Anglo-Saxon history the internal and external warfare hastened the consolidation of power into ever fewer kingdoms. The customary law traditions, however, managed to persist until the Norman invasion in the 11th century. The invading Normans didn’t simply overturn the deeply rooted system of law and justice by force, they infiltrated and perverted it over time until Britain was eventually brought under a system of feudalism.8

THE DE-EVOLUTION OF ANGLO-SAXON LAW

Precedent law is the body of information detailing the facts of cases, the procedures of dispute resolution, and the decisions of the arbitrators or jurists, as well as the reasons behind those decisions. Precedent law simply elucidates what happened and why, and does not explicitly mandate that similar cases be handled in the same way in the future.

Arbitrators are free to come to whatever decision they please although decisions which might radically depart from precedent would not likely be voluntarily enforced through the threat of widespread ostracism. But nevertheless precedent law makes no explicit decrees. Instead, human conduct is tempered by an understanding of what happened in the past and what the likely consequences will be for certain behaviors.

Whereas precedent law is a body of specific facts, cases, and decisions which deal with consummated events in the past, legislation is any communication, be it verbal or written, which makes an explicit decree governing present and future human conduct over a geographic area. Originally legislation, at least in written form, began with outlining definite amounts of restitution for particular offenses, but then expanded to include rules governing the protocols of dispute resolution, administration of the courts, the various forms of punishment, new forms of taxation, charters limiting royal power, and ultimately laws which began to alter long established precedents with increasing flexibility.

While seminal legal documents such as the Magna Carta and the Bill of Rights are widely regarded as major advancements towards a more civilized society, they are actually signs of the eternal struggle between state power and individual liberty as customary law slowly devolved into monopolistic law. Once the state assimilates every aspect of law and justice into its sprawling anatomy a radical departure from long held traditions becomes possible. Precedent, the foundation of human civilization and the great bulwark against lawlessness, is eroded and deposed by legislation. Law then is perverted into an arbitrary instrument of state power.

In its most nascent form legislation was the codification of legal customs that took centuries to develop. The earliest written record of Anglo-Saxon law came from King Aethelbert of Kent who codified their legal customs sometime in the late 6th or early 7th centuries.9 Aethelbert’s code was limited to outlining the amount of restitution that would be owed to the victim for particular crimes. Professor A. W. B. Simpson, a British legal historian, noted in his “The Laws of Ethelbert”:

“Essentially, however, legislation involves the idea of laying down abstract general rules to deal with situations that, it is thought, will arise in the future: adjudication on the other hand involves giving decisions in particular cases after they have arisen. But this distinction was not part of the intellectual stock of ideas of the seventh century…The king and his counselors proceed to give judgments without waiting for any actual dispute to come before them. If this or this happens, this is the judgment. Aethelbert then in a sense legislated without knowing that this was what he was doing, without realizing that he was employing a new and immensely important social technique.”10

In the following centuries the codes were rewritten and expanded to include matters such as oaths (and the penalties for perjury), sureties, and legal procedures.11 Beginning in the 8th century Vikings began leading raids into Britain. Being that the prime function of the kings was to conduct warfare and provide for defense, the raids hastened the pace with which the power of the Anglo-Saxon aristocracy was being centralized. As the Anglo-Saxon kings centralized power they produced legal codes designed to transform institutions that had evolved from customary law into top down mechanisms of royal control. Those bodies of law explicitly delineated the shires as geographically based political units to be headed by reeves who operated at the behest of the king.12

After the Norman invasion in the 11th century, the first legislation came in the form of royal charters which governed the procedures and administration of the courts,13 as well as writs issued by the king.14 Writs were essentially statutes that defined a particular offense and outlined the procedures by which the dispute could be resolved. When a plaintiff wanted to pursue justice they could purchase a writ in order to gain access to the royal courts and system of enforcement. As plaintiffs brought cases which were as of yet undefined by any existing writ new writs were issued in order to provide the terms by which the matter should be handled. By the time of the reign of Edward II (1271 – 1307) there were some 470 different kinds of writs.15

Under this arrangement, restitution began to be replaced with a system of fines paid to the king as well as corporal and capital punishment. Without restitution, victims had little incentive to report crimes or attempt to gather the support necessary to pursue justice. The bottom up reciprocal system of law and justice that had existed under the tithings and hundreds organizations declined. As a result, in order to enforce royal law and the collection of fines, the Normans had to introduce local “frankpledge” organizations in which members were conscripted by feudal obligation to pursue offenders and perform court duties. Failure to perform duties at the behest of those feudal obligations could result in whole communities being fined.16

Eventually the legal concept of a “felony” was introduced by the Normans wherein it was considered a crime for a serf to betray or commit treachery against a feudal lord. The punishment for a felony was potentially death as well as the forfeiture of land and property to the king. Naturally, the definition of “felony” was continuously expanded since it resulted in the acquisition by the king of ever greater goods and land.17 The expanding power of the king, and the ever greater extent to which he acquired property from forfeiture, led to a revolt by the feudal barons, a development which brought about the Magna Carta of 1215.

Contrary to the popular opinion that the Magna Carta was a landmark advancement in a progressive trend towards contemporary civilization which, among other things, ensured the right to a trial by jury, the document only served to prohibit the arbitrary imprisonment of powerful barons, despite the wording which included English free men. The Magna Carta was not so much the result of a popular push back against the power of the king, but an attempt on the part of the feudal aristocracy to restore some of their privileges under the monopolistic system of law and justice.18

In that same year, the Church banned participation of the clergy in the practice of “trial by ordeal,” which put the accused through some painful or dangerous experience in order to determine their guilt or innocence.19 Early on in the development of Anglo-Saxon law the accused could swear an oath as to their innocence, and bring with them oath-helpers to attest to the veracity of their claims.20 As the Anglo-Saxon kingdoms matured however, oaths were replaced with trial by ordeal (a development which may have been related to the adoption of Christianity in Britain).21 After 1215 though trials were conducted by jury.22

Prior to King John putting his seal on the Magna Carta, under the reign of King Henry II, juries were “intimately connected with royal power” and served to inform the king’s justices and make accusations. Jails were established to hold those accused by the juries, and a distinction between “crimes” and civil cases emerged with criminal cases resulting in fines paid to the king rather than restitution to the victim. The kingship benefited from these cases regardless because a guilty verdict would result in hanging or mutilation and exile, as well as the forfeiture of goods, whereas innocence could mean that the plaintiff was fined for false accusation. As a result, victims and members of the frankpledge had even less incentive to report crimes or pursue justice.23

Even after the royal recognition of the Magna Carta, trial by jury was widely regarded as a sure way to be found guilty, to the extent that accused felons would be imprisoned and placed under horrendous conditions until they either agreed to a jury trial or died.24 Despite the initial resistance to jury trials they did eventually come to be viewed as a safeguard against arbitrary punishment.25

Not long after the Magna Carta the first record of the word “parliamentum” can be seen in the royal records. Parliament began as a royal council, and eventually came to include the feudal aristocracy as well as landowners. The earls, barons, and prelates of the church would ultimately make up the House of Lords, and the knights and burgesses would become the House of Commons.26

One of the powers of parliament was to originate new forms of taxation, a privilege rooted in the Magna Carta (1215) and the De Tallagio non Concedendo (1297).27 Following the rise of parliamentary influence in the 14th century tension between parliament and royal power grew, culminating in the Petition of Right in 1628, and eventually the Bill of Rights in 1689.28 While these documents are hailed as great advancements in securing the rights of Englishmen, they signaled the rising dominance of parliament, a development that would usher in a much larger and more invasive state.

Throughout the 18th century, while parliament passed many acts, most of them did not alter long established precedents. It wasn’t until after the Reform Act of 1832 that parliament began to legislate vigorously and make changes to the rules of law, paving the way for public intervention into virtually every aspect of private life.29 During the entire monarchical age and up until World War I, the tax burden rarely exceeded 5% percent of national product and government employment hardly ever rose above 2% percent of the labor force. Since then, however, the tax burden has risen to 50% and government employment hangs around 15% to 20%.30 The sizable increase may be explained by the rise of democracy and the blurring of the distinction between the rulers and the ruled.31 A population which believes that they are part of the government, or that voting allows them to exercise control, is less likely to resist increases in taxes and the size of government.

Prior to these radical changes and the rise of parliament, however, it was the king who was the prime legislator, although what he could do was much more limited in scope. Indeed, the king was not viewed as a legislator, but as someone who occupied a privileged position within a system of common law.32 His “legislation” came in considerably subtler forms, such as the defining of a growing list of actions as crimes with restitution owed to the crown.

One of the more perverse notions of crime that developed were those which had no clear victim. Under customary law there are no victimless “crimes,” as every offense against persons or property has a clearly identifiable victim. But in a monopolistic system the urge to constantly expand the types of offenses in order to generate more revenue, and to exert more control, manifests in legislation criminalizing offenses which have no person as the victim. Instead, the “victim” is the state.

One of the most damaging victimless crimes was that of “theftbote,” which was declared under the reign of King Edward III in the 14th century. Theftbote made it a misdemeanor for a victim to accept the return of stolen property or make arrangements with the criminal outside the scope of the king’s justice system, and was yet a further attack on the ancient right of restitution as well as an attempt to ensure that the king could profit from any criminal act.33

Legislation was also instrumental in creating viceroys tasked with managing local affairs at the behest of royal power. Whereas competitive law is fluid and adaptable to suit the specific needs of a particular time and place, monopolistic law produces a sclerotic, vertically integrated bureaucracy designed to assert control.

As noted previously, reeves were instituted and used to administer the shires. By the 14th century, justices of the peace were explicitly created and their role in the justice system developed to include making indictments, conducting jury trials, and handing out summary convictions for lesser offenses. By the 16th century they were legally obliged aid in the investigation of crimes, the organizing of trials, and the prosecution of the defendant if a private citizen was not available.34

The office of sheriff, too, has its roots deep in Anglo-Saxon law. The shire of the early Middle Ages became the “county” under the Normans, and the reeves which had acted as representatives of the king over several shires transformed into Norman sheriffs with a wide variety of legal functions.35

In the 16th century the use of plea bargaining began to expand as well. As the focus of the justice system shifted away from making the victim whole through restitution and towards punishing offenders for “crimes against the state,” those punishments became more and more severe. Whereas restitution served to allay any desire for revenge on the part of the victim, and also to provide a means for the offender to buy back his honor and reenter society, the royal justice system allowed the victim to pursue vengeance through the advocating of severe punishment. Plea bargaining was a way for the accused to admit guilt in exchange for a lighter sentence.36

Of all the forms of punishment which could be dealt out after a plea bargain or trial, jails, which today have become a primary method of sanctioning offenders, did not start out as such. They began to be used as early as the 10th century in order to hold the accused waiting trial, but they were not viewed as modes of punishment since they prevented the offender from working to pay restitution.

Over time their prevalence expanded as they provided a means for the king to hold those awaiting trial for any one of the broad range of activities defined as crimes by royal law. They also served to coerce guilty pleas and the payment of fines. These jails were not publicly financed, but were funded by the prisoners themselves through fees and the selling of special accommodations. It wasn’t until the reign of Queen Elizabeth that “houses of correction” were instituted with the ostensible function of simultaneously punishing and reforming offenders. By the 19th century, the prison system became the primary means of punishing felons and was funded through taxation.37

Perhaps the two most de-evolutionary developments in the English system of law and justice were the introduction of public police and prosecutors. Beginning in the 16th century watchmen and bounty hunters were being hired by private individuals or organizations to deter crime and pursue offenders. Eventually these private efforts gave way to tax funded police operating under the employ of the monopolistic system of justice.

The first metropolitan police department was established in 1829 in London, and the development was met with a good deal of resistance from Englishmen as they knew the French police of the 17th century acted as spies for the king. Two years after the London police department was inaugurated almost 40% had been fired for “unfitness, incompetence, or drunkeness.” Despite the police being referred to as “blue devils,” over time public opposition subsided and police departments spread. Englishmen also resisted public prosecution because they feared that it could be used for political oppression.38 Like the police however public prosecution has become prevalent, although private prosecutions are still allowed by law.39

THE FAILURES OF MONOPOLISTIC LAW AND JUSTICE

Not only are governments not necessary for there to be efficient and sophisticated systems of law and justice, but such customary systems necessarily precede the emergence of states and provide the basic institutions which are eventually transformed into part of the state machinery. Those states are the result of competitive systems slowly devolving into monopolistic ones over the course of centuries as fewer and fewer individuals gain control over them.

As restitution to the victim gets replaced by fines paid to the state the incentive for the victim to report crimes and pursue justice diminishes thereby causing the bottom up reciprocal arrangements and relationships to erode. As a result, top down institutions powered by conscription obligations have to be employed in order to fill in the gaps that are left behind. Rather than the justice system emerging and developing in response to disputes, and the desire to resolve them peaceably, monopolistic systems transform the justice industry into a mechanism of wealth extraction and control.

Unlike competitive systems, where the honor of everyone involved in a dispute resolution is at stake, and therefore honest oath taking is held in the highest esteem, monopolistic systems thrive on false accusations and perjury.

In competitive systems, no one has special privileges over the provision of law and justice, whereas monopolistic systems continually attempt to expand their privileges at the expense of the rights of the population.

Competitive systems produce methods of dispute resolution which are speedy, and which both parties view as reasonable fair. In monopolistic systems, the procedures of the court become increasingly complicated and convoluted in order to enhance the control of the state. Parties are forced to use the monopolistic courts and procedures regardless of the quality of their services.

The freedom to make voluntary arrangements for arbitrators in competitive systems places pressure on professional judges or jurists to provide quality services, and to be as fair as possible. Restitution rewards ensure high victim reporting rates and grassroots efforts to pursue justice as well as a non-violent, civilized avenue to resolve disputes and make the victim whole. In monopolistic system, restitution becomes rare.

Additionally, the inefficiency of the monopolistic courts and enforcement lower the probability that the perpetrator will be held accountable, and also increase the likelihood that an innocent person will be falsely convicted. Without a monetary reward and strong reason to believe that justice will be done, many victims simply opt to do nothing. The lack of victim reporting creates a general atmosphere of lawlessness and substantially lowers the risk of committing crime.

A justice system without free markets, and thus robust restitution precedents, is doomed to be severely distorted and egregiously destructive to overall human cooperation, productivity, prosperity, and well being.

SOURCES:

1. Benson, Bruce L. The Enterprise of Law: Justice Without the State. Oakland: The Independent Institute. pg 21

2. Ibid., 22

3. Ibid., 23

4. Ibid., 23 – 24

5. Ibid., 24

6. Ibid., 26 – 28

7. Ibid., 29 – 30

8. Ibid., 47 – 49

9. Tucker, Charles E., Jr. Anglo-Saxon Law: Its Development and Impact on the English Legal System. USAFA JOURNAL OF LEGAL STUDIES. 140

10. Ibid., 144

11. Ibid., 156 – 170

12. Ibid., 172 – 174

13. Mulligan, Robert F. Spontaneously Evolved Social Order versus Positive Legislation in English Constitutional History. REVIEW OF AUSTRIAN ECONOMICS

14. Hamowy, Ronald. F.A. Hayek and the Common Law. Cato Institute. 250-251

15. Ibid., 248-249

16. Enterprise 49

17. Ibid., 50

18. Ibid., 53 – 54

19. Ibid., 58

20. Anglo-Saxon Law: Its Development and Impact on the English Legal System. 161 – 162

21. Ibid., 174-175

22. Enterprise 58 – 59

23. Enterprise 52 – 53

24. Enterprise 59

25. Enterprise 70

26. Enterprise 54 – 56

27. Spontaneously Evolved Social Order versus Positive Legislation in English Constitutional History

28. Mulligan, Robert F. Emergent and Instrumental Institutions in English Constitutional History. STUDIES IN EMERGENT ORDER 93 – 95

29. Maitland, F. W. The Constitutional History of England. A COURSE OF LECTURES 382 – 385

30. Hoppe, Hans-Hermann. Democracy: The God That Failed. New Brunswick: Transaction Publishers. 26-27

31. Ibid., 21 – 27

32. Ibid., 28

33. Enterprise 62

34. Ibid., 63

35. Ibid., 46 – 49

36. Ibid., 69 – 71

37. Ibid., 71 – 73

38. Ibid., 73-76

39. O’Neill, Michael Edmund. Private Vengeance and the Public Good. JOURNAL OF CONSTITUTIONAL LAW 665