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I was recently subjected to a lengthy debated about gun registration and “Universal Background Checks.”   Briefly, a new State law had been proposed which would have required gun sales between private parties be conducted via a Federal Firearms License transfer under a variety of new circumstances.  In the course of this debate, which I’m not going to get into at this time, opponents objected that laws like the proposed only affect law-abiding gun owners; Criminals will not follow the law when they obtain their guns.

The response from the pro-gun-control speaker was, “If it’s true that criminals don’t follow the law, then why do we have laws against murder?”

Why, indeed?

I was recently reading the history of Harold II of England.   He was the last Saxon king of England until is defeat and death at the hands of William the Conqueror ushered in the Norman and French rule of that nation.  It also began a slower replacement of the Anglo-Saxon/Norse culture with what has come to be the English tradition of law.

Among those traditions, one in particular caught my eye.  In Anglo-Saxon law, one who committed of a murder was obligated to pay wergild (translated to man price).  This was a value placed on each human being.   That price varied depending on the social station of the victim; a slave was worth a fraction of a free man and a lord worth vastly more.  In fact, while the concept has left our culture, some of the language has remained.  Phrases like “A princely sum” refers to the orders of magnitude beyond that of the average man that a life of a noble might be worth.  The price of a free man’s life is sometimes give as 200 schillings (a schilling being worth roughly one sheep or cow).

This concept is not too dissimilar from the earliest recorded law, the Hammurabi Code of Babylonia, which also specified the price of a man (varying by station and gender).   As foreign as the concept is to our modern concept of the value of a life, historically speaking our current thinking is relatively new.

Note, also, that the wergild was paid, not to the king or lord, but to the victim’s family (or to the owner, if the victim was a slave or thrall).

What if a perpetrator was unable to pay the price?  Were they subject to the death penalty?  To life in prison? In fact, neither of these punishments existed in Anglo-Saxon England or the Germanic culture on which it was based. The supreme penalty to be imposed upon the unrepentant murderer was to be outlawed. This meant that the criminal was expelled from society and was no longer afforded the protection of society’s laws.

My first thought on readings this was that this doesn’t seem so bad. So you’re exiled and maybe have to try to start anew in some foreign land, but at least your head is still attached to your neck, right?

More likely, an outlawed murderer probably had a rather short life expectancy.  Once the protection of society is removed, the victim’s survivors were free to extract whatever retribution they felt best. You would probably expect to forfeit not only your life, but everything else you had in the world.

It’s not for nothing that we call this part of our legal framework the “Criminal Justice System.”  Once outside of the law, “justice” has no limits.  Any slight, perceived or real, might be subject to whatever level of vengeance. The law, then, provides justice for the criminal, more so than the victim, by making sure that “the punishment fits the crime” and goes no further.

To get back to the title, why then is murder illegal? Making murder against the law doesn’t stop people from killing each other, so is it a failed law? Or are there other reasons for it.  In some ways, the involvement of the State in punishing the murderer is about equality – that the State should advocate for the homeless victim with no family with the same process that it would advocate for the child of a powerful family.  But, more than that, laws against murder set a framework for the criminal that limit his culpability through both due process and maximum sentence. We create our laws against murder and then set limits on those laws in a way that provides the victims with a sense of justice while preventing the creation of a new set of victims; victimized if we end up over-punishing the guilty.

Without laws against murder, people wouldn’t “get away with murder.” In fact, without the law, murderers (especially of victims with sufficient friends and family) might be less likely to “get away.” We as a society, however, deem it better to go a little easy on our murders so as to avoid family feuds, blood feuds, and vendettas that in the long run would be far more destabilizing to our society than the occasional murder.

Do mala prohibita (laws, such as these gun control measures, which criminalize the failure to complete paperwork) provide “criminal justice” in the same way that prohibitions against murder do?  Of course not. The idea that without the requisite paperwork, society would descend into waring clans is too ridiculous to imagine.

After all the debate, the gun law in question was, appropriately I would say, defeated.