Police, Courts, and Prisons
Part 3 – Medieval Iceland
I recommend reading Parts 1 and 2 before reading this essay
“In the latter half of the ninth century”, wrote David Friedman:
King Harald Fairhair unified Norway under his rule. A substantial part of the population left; many went either directly to Iceland, which had been discovered a few years before, or indirectly via Norse colonies in England, Ireland, Orkney, the Hebrides, and the Shetland Islands.[1]
According to Roderick Long, the main features of the Icelandic legal system were:
Legislative power was vested in the General Assembly (althingi); the legislators were Chieftains (godhar; singular, godhi) representing their Assemblymen (thingmenn; singular, thingmadhr). Every Icelander was attached to a Chieftain, either directly, by being an Assemblyman, or indirectly, by belonging to a household headed by an Assemblyman. A Chieftaincy (godhordh) was private property, which could be bought and sold. Representation was determined by choice rather than by place of residence; an Assemblyman could transfer his allegiance (and attendant fees) at will from one Chieftain to another without moving to a new district. Hence competition among Chieftains served to keep them in line.
The General Assembly passed laws, but had no executive authority; law enforcement was up to the individual, with the help of his friends, family, and Chieftain. Disputes were resolved either through private arbitration or through the court system administered by the General Assembly. Wrongdoers were required to pay financial restitution to their victims; those who refused were denied all legal protection in the future (and thus, e.g., could be killed with impunity). The claim to such compensation was itself a marketable commodity; a person too weak to enforce his claim could sell it to someone more powerful. This served to prevent the powerful from preying on the weak.[2]
The function of the courts, according to Friedman,
was to deliver verdicts on cases brought to them. That done, the court was finished. If the verdict went against the defendant, it was up to him to pay the assigned punishment–almost always a fine. If he did not, the plaintiff could go to court again and have the defendant declared an outlaw. The killer of an outlaw could not himself be prosecuted for the act; in addition, anyone who gave shelter to an outlaw could be prosecuted for doing so.
Prosecution was up to the victim (or his survivors). If they and the offender agreed on a settlement, the matter was settled. Many cases were settled by arbitration, including the two most serious conflicts that arose prior to the final period of breakdown in the thirteenth century.[3]
Long explains the first episode in a lengthy series of related events leading to the eventual breakdown referred to by Friedman:
most Icelanders worshipped the pagan Norse gods, but there were a few Christians. . . .in the 990’s, King Olaf I of Norway sent groups of militant Christian missionaries to proselytize through harassment and intimidation techniques. Those who resisted the word of God were sometimes beaten or killed. Moreover, the King captured and held as hostages the relatives of prominent Icelanders visiting Norway; Olaf threatened to maim or kill these hostages unless Christianity was declared Iceland’s official religion. . . . In the year 1000, seventy years after the founding of the Free Commonwealth, Iceland was officially converted to Christianity, thus putting an end to a tradition of relative religious freedom.[4]
Strictly speaking, Icelanders did not live under customary law, though two of its prominent features were well entrenched – restitution and private law enforcement. Iceland’s legal system was so stable, says Long:
that the seeds of corruption took a remarkably long time to bloom: from the forcible conversion at the end of the tenth century, to the compulsory tithe at the end of the eleventh century, to the final collapse in the mid-thirteenth century. . . . Moreover, as David Friedman has pointed out, examination of the historical evidence indicates that the murder rate in Iceland during the Sturlung Period — the era that Icelanders regarded as so intolerably violent as to justify abandoning their political system — was about the same as the murder rate in the United States today! Pre-Sturlung Iceland must thus have been even less violent than our own society.[5]
WAS THE SYSTEM BARBARIC ?
There are two specific features of privately enforced law in medieval Iceland which some people may find objectionable. The first relates to individuals who have been found guilty of an offence and then refuse to compensate their victims. These offenders were denied all legal protection, and could be killed with impunity, just as we saw with Anglo-Saxon law (see Part 2). Some people may view this as barbaric. Others may perceive it to be quite civilized compared to the prevailing state of affairs under authoritarian law. According to the Canadian Oxford Dictionary (Second Edition 2004), the definition of the words justice and just are as follows:
Justice – just conduct; fairness
Just – acting or done in accordance with what is morally right or fair
Do we accept these two definitions? Do we wish to live in a civilized society? If the answer to both questions is ‘yes’, then we must expect everyone to do what is morally right, at all times. Ah, but how do we decide what is morally right? Each person may have a different set of morals, and we are all familiar with the phrase “do not impose your beliefs, your ideals, your morals, on someone else.” But let us consider the morals which formed the basis of Icelandic and Anglo-Saxon law. By all appearances, the focus was on the conduct of each person, in terms of whether such conduct directly and unequivocally brought harm to another person, or the property of another person. Period. Simple. The Golden Rule.
Let us accept this maxim as a means of assessing any notion of barbarism in these two law systems, as compared to authoritarian law. When an individual was found guilty of an offence, he was required to fully compensate his victim. In fact, the offender was given the opportunity to do this as a way of ‘righting the wrong’ and re-establishing himself in the community. Repair the harm and all is forgiven (if not forgotten). If the offender refused to cooperate, he was no longer considered a member of the community, and his life was in danger. But we must remember that it was the conduct of the offender which placed his own life in danger. He can now be killed with impunity. Is this barbaric? Yes? Then we have to answer this question – If an uncooperative offender cannot be killed with impunity, does this mean the offender should be allowed to offend with impunity?
Consider authoritarian law, under which many offenders are allowed to offend with impunity! William Gairdner wrote about the case of Michael Hector:
In 1996, Ambi Chenniah wrote a glowing supervisory report about Michael Hector’s “progress” while on parole serving a sentence for armed robbery with a restricted weapon. She effused about his upbeat spirit, and about his future plans to become a professional writer and semi-retire in Australia. Ambi and others had spent a lot of their time and a lot of our money trying to change Hector’s view that “nothing is a crime unless you get caught.” But unknown to Ambi, eleven days prior to issuing her report, sweet-smiling Hector had brutally murdered two men in cold blood by shooting them in the face, below the right eye; one of them for refusing to sell him an ounce of cocaine for $2,000; the other, because he was a witness. Three weeks later he murdered a twenty-year-old gas station attendant from whom he had stolen $944, by shooting him, as he described proudly, “once in the head, once in the ear.” At the time of all these murders he was on parole while serving an eight-and-a-half-year term for armed robbery. That robbery had itself been committed while he was on parole from a previous armed robbery sentence. Despite his three armed robberies and three brutal murders committed while on parole, Hector was never once classified as a dangerous offender, nor as a vicious psychopath, but as “a medium-security model inmate.”[6]
In his book, Gairdner included four examples of criminals who offended with impunity. In consideration of you, dear reader, I chose to relay the case of Michael Hector because this was the least objectionable of the four. Gairdner also tells us that “During a 33-year period from 1975 to 2008, some 508 criminals who, after extensive psychological testing and interviewing were judged no danger to public safety by the National Parole Board, were released from prison and in that period killed 557 perfectly innocent Canadians.”[7]
Under authoritarian law, victim restitution is rare. But what if these criminals had been living under a system of customary law? And what if they refused to compensate the victim after their first offence? If they could be killed with impunity, many innocent lives would have been saved. I do not claim these to be simple questions. A perfect legal system has never and will never exist, because humans are not perfect. However, if one chooses to describe the Icelandic and Anglo-Saxon systems as barbaric for their treatment of guilty people, then how does one describe our Authoritarian system for its treatment of innocent people.
CRIMES AGAINST SOCIETY
The second feature of Icelandic and Anglo-Saxon law to which some people may object stems from the restitution agreement between the offender and victim, upon which the matter was considered to be settled. The objectors, especially the government, tend to view some offences as ‘crimes against society’. As such, the focus gets diverted from the victim to society at large – and the offender must be imprisoned until his ‘debt to society is paid’. I have no doubt that most people holding this view genuinely believe it to be the morally correct approach. Personally, I am unable to perceive the supposed moral logic. Additionally, support for this approach appears ill-advised in light of the dismal performance of our authoritarian police, courts, prisons and parole boards.
Consider this scenario. A steals $10,000 from B. Justice requires that A repay $10,000 plus interest to B, plus an additional amount as penalty for wrongful behaviour, plus an additional amount to cover any costs of apprehension, prosecution, and if necessary, incarceration. Thus, A is held accountable for his wrongful act. In contrast, the State adheres to a perverse, self-serving definition of accountability. Under its administration of authoritarian law, the state says that justice can be achieved only through the punishment of A, and the punishment of A can be achieved only through the punishment of B, as well as the punishment of other taxpayers. Citizens are forced to pay taxes to pay for the apprehension, prosecution, and incarceration of criminals – thus, citizens who have not broken the law are penalized because someone else has broken the law. We see here that B has been wronged twice. Two wrongs do not make a right, yet we are told that justice has been done. The medieval Icelanders and Anglo-Saxons would be aghast. “One thousand years in the future and you call this progress! How’s that working out for you?”
We teach our children to respect the property of others. If they break a neighbour’s window, their piggy banks will become lighter because they must repair the damage. That is how they learn to right a wrong, and they learn quickly because it makes sense. But strangely, this notion of fair compensation is not applied under authoritarian law – and as adults, we are seemingly incapable of recognizing the contradiction between our childhood lessons and our adult experiences.
When a criminal is released from prison we are told he has repaid his debt to society. But ‘repay’ means to pay back something to someone, and the criminal has not paid anything to anyone. On the contrary, it is society which pays via tax confiscation to support the criminal and his jailers for the term of incarceration.
It is helpful to note that there is no living, breathing entity called society. There are only individuals. It is acceptable to speak of society in its proper context but we must avoid fallacious connotations. The criminal owes a debt to an individual, not to some abstract notion of society; or if you prefer, the criminal owes a debt not to society, but to a specific, identifiable member of society. Therefore, it is that member of society to whom a debt must be repaid, and the debt must be repaid by the member of society who incurred the debt i.e. the criminal. This is the only solution consistent with our earlier definitions of “Just” and “Justice”.
I can anticipate another objection: “It is naïve to think criminals will repay their debts, because most of them are lazy, uneducated, and unproductive.” People can be motivated to change. I will discuss this at length in Part 11, but for now, recall the wisdom of our medieval ancestors – social ostracism is a powerful motivating factor.
[1] David Friedman, Private Creation and Enforcement of Law: A Historical Case (University of Chicago Law School, 1979)
[2] Roderick T. Long, The Decline and Fall of Private Law in Iceland (article published in the Spring 1994 issue of Formulations, formerly a publication of the Free Nation Foundation, now published by the Libertarian Nation Foundation)
[3] David Friedman, Private Creation and Enforcement of Law: A Historical Case (University of Chicago Law School, 1979)
[4] Roderick T. Long, The Decline and Fall of Private Law in Iceland (article published in the Spring 1994 issue of Formulations, formerly a publication of the Free Nation Foundation, now published by the Libertarian Nation Foundation)
[5] Ibid. (note – the Sturlung Period was mid-thirteenth century)
[6] William D. Gairdner The Trouble With Canada . . . Still! (Key Porter Books Limited, Toronto, 2010) pp 333-34
[7] Ibid., p 373
