An Excerpt on Germanic Law
“There is no reason to doubt but that men were from the first more inclined to come to a peaceable settlement in the case of slight wounds than in the case of wounds more serious. Whether it were possible would depend on the individual character of the case; what had led up to the injury, how it had been dealt, and not least, who the offender was; whether he and his kin were of such standing that a peaceable settlement with them meant honor. But one thing was certain; the will to reconciliation was not based on any inclination to let the insignificant blow pass unheeded; if the culprit would not or could not make good the damaged honor, then vengeance must be taken, no less than in matters of life and death.
“On this point law was as stiff and uncompromising as any private feeling enjoining unconditional restitution. That the offender is not in a condition to pay, or that he no longer exists, does not dispose of the fact that the other party stands there in need of payment. The slightness of an offense does not diminish the necessity of its being made good. And in face of this basic principle, all attempts at progress come to a standstill. The law reformers of Norway thrust vengeance as far as possible into the background. They urge, that the courts are ready for those who need them, and in addition there will now be royal officials, whose task in life will be to give men the restitution they had before to get for themselves as best they could. But they cannot refrain from adding, that if the opponent will not give way, and the will of the official is not enough, then the man who takes vengeance himself for his dishonor shall be regarded with all possible consideration; ay, if the vengeance taken does not exceed desert, he shall be held not guilty. “If payment of the fine for killing a man be not made, then the dead man's kinsmen may take vengeance, and they are to be no wise hindered by the fact that the King hath given the slayer peace and leave to be in the country,” — these are the very words of King Hakon's great reform edict, which prefaces the Frosta-thing's Law.
“In this ideal of justice the apparent conflict between the theories of law and the practice of everyday life is accounted for. The Teutons had a strong inclination for peaceable settlement of disputes, but mediation stood outside trying to effect a reconciliation by mutual agreement without in the least prejudicing the right of frith. Later law reflects an original Teutonic sense of justice insofar as it works up two separate tendencies into one system. The lawyers of the transition age tried to make mediation an integral part of the judicial proceedings and thus tend towards a legal system built up on the weighing and valuation of the offense at the same time as they worked for the abolishing of the ancient right of private revenge. By this harmonizing process, Teutonic jurisprudence was gradually led into correspondence with Roman law, but it was slow in abandoning the idea of absolute reparation as the paramount condition of right and justice.
“The demand for personal restitution, indeed, is not a thing that life and society merely acknowledge, it is the very innermost secret, the sustaining power itself, in the legislation of the North. When the Gula-thing's Law breaks out with its: “Then it is well that vengeance be taken” or when it says: “None can demand payment for injury more than three times without taking vengeance between them,” then it is not defiance of law, mischievously putting on the legal wig and uttering cynicisms with comic seriousness. These sentences are nothing but the direct expression of that law-craving energy which has built up and maintained the entire network of ordinances from which they emerge.
“The spirit of the law may be characterized as a juridical sympathy with the offended party and his sufferings. The law-thing is the place whither he comes to seek healing. In other words, any attack is regarded from the point of view of personal wrong. It matters not whether a man comes bearing the body of his slain kinsman, or leading in a thief caught in the act and bound, or with the odium of a scornful word to be wiped out, the cry is the same: “Give me restitution, give me back my honor.”
“A deed can never be a crime in itself, it only becomes a crime, if we will use the word, by its effect upon a person. If it falls upon a man sound and whole, it is equivalent to damage done, and he must have it made good. The fine society takes upon itself to procure for him, if he appeals to it, is, according to ancient terminology, his “right” — which means, approximately, his value. And if there be “no right in him”, i. e. if he is a man without honor, then there can be no crime.
“The law-maintaining energy which goes out to the complainant from the seat of justice is by no means less than elsewhere where the judge sits to punish and protect. On the contrary. It is the stronger, inasmuch as it is inspired by the fundamental idea: that restitution must and shall be made, since the well-being of the complainant stands in jeopardy; he is a marked, a fallen man, if we cannot procure him “honor”. If the culprit is out of reach, his kinsmen must come forward; it is not a question of finding any offender, but of finding someone to make restitution”. (Gronbech et al., 1931, pp. 48 - 50)
Gronbech, V. P., Grønbech, V. P., & Worster, W. (1931). The Culture of the Teutons (Vol. 1). Oxford University Press.
