How would the Anglo-Saxons react to the threat of terrorism if they had access to Facebook? It’s a bizarre question, I admit, but I’ve been immersed in England’s pre-Norman Conquest legal system for over a decade now, and it’s been playing on my mind. The answer makes me uncomfortable.
Supposing the brutal persecution of minority groups was impractical (which it actually wasn’t), how would the Anglo-Saxons have reacted if they knew that there were among their number people who secretly rejected their core values and plotted to cause them harm? What would they have done if, even though the authorities thought they knew who some of these threatening individuals were, it was impossible to convict them on any charge without actually catching them in the act of wrongdoing?
The Anglo-Saxon ruling elite wrestled with essentially this problem across the tenth century. The public enemy that worried them was the thief. Men who openly seized others’ property weren’t thieves. Thieves were cowards who hid their responsibility; they were liars, willing to perjure themselves to avoid detection, and their anonymity meant they could be anyone at all. Unsolved thefts could sow suspicion among friends and neighbours, damaging the very fabric of community. Thieves were a menace to society; they provoked a legislative fervour bordering on obsession.
So why not just round up suspected thieves and hang them? This is the approach most people today would expect of medieval justice, but for Anglo-Saxon legislators this was unthinkable. The legally free had inviolable civil liberties. Unless he had been caught in the act, a free man with no record of dishonesty had the right to deny any charge by swearing that he was innocent. Providing he was able to persuade a number of other free people (11 may have been conventional) to swear that his oath was “clean and unperjured,” that was it: he was proven innocent. The willingness of thieves and their families to take advantage of this entitlement, brazenly perjuring themselves, infuriated some kings, but they never openly undermined it.
Rather, they made ingenious efforts to get around it. Their most far-reaching reform involved suretyship. Free Anglo-Saxons had always been expected to have sureties: locally based guarantors for any financial liabilities they might leave behind if they suddenly disappeared. Under King Edgar (957–75), however, suretyship rules changed dramatically. Henceforth every free man was to have sureties who were financially responsible not only for any damage he did (as was traditional) but also for any punishments he incurred. If a thief fled, his sureties would now not only have to recompense his victim, but pay a very large fine. Men who could persuade nobody to stand surety for them were untrustworthy by definition; they faced execution.
The underlying idea was to make use of social networks—to tap into people’s knowledge of one another’s characters. Upstanding, economically rational men would only stand surety for people they trusted; they would judge the risk of backing more dubious characters to be too high. If personal or familial loyalties in practice trumped assessments of financial risk, then so be it: groups which knowingly shielded wicked individuals deserved the ruinous fines this system would heap on them.
In practice, the system appears not to have worked well. By the early thirteenth century, when we can see it in operation, it seems people weren’t actually making choices based on trust, but were essentially forced to act as sureties for their neighbors. Perhaps this was inevitable. Networks of personal trust may simply have been too complex and fluid to be effectively integrated into medieval legal machinery.
We, though, live in the age of social media. Imagine for a moment: a new law demands that every citizen find ten other citizens willing to accept liability for a £50,000 fine if he or she commits mass murder. The government provides an online system in which you register your suretyship obligations; you can log on and make changes at any time but if you are without a full set of sureties for too long you face penalties of some sort—perhaps you have to pay to be fitted with an electronic tag. The security services monitor the system closely, hoping to detect terror cells from unusual patterns in suretyship networks.
It’s the plausibility of this scenario I find unsettling. Yes, it’s a dystopian vision of state intrusion, of a legal order which denies civil liberties to the socially isolated. But if such a system generated data that actually prevented atrocities, how much weight would our societies place on the rights of a small minority—a minority not defined in ethnic or religious terms?
Now that we have the technology to do so in complex and populous societies, will we choose once again to embed law in social networks? I fear we may, and that the moral world of early medieval law is rather less distant and alien than we might smugly assume.
Featured image credit: Replica of the helmet from the Sutton Hoo ship burial. Photo by IH (40), CC BY 2.0 via Wikimedia Commons.