What the Law Cannot Do, 2

Eric Enlow writes, in response to my post on Gary Gilmore:

“The Law actually can and has done quite a bit about the Gilmore situation to address responsibility that flows to the family as a whole. For example, early Germanic law imposed criminal liability on families not individuals. Thus, each clan was held responsible for any criminal action by its members, i.e. forced to pay the criminal fine for the act and/or to hand over the member for death depending on circumstances. This had a number of positive effects: (1) it held families responsible for failing to raise children properly to respect the rights of other; (2) it provided an incentive for families to restrain its own members; (3) it insured that the victims of defendants who were individually indigent could find some remedy from rich family members; (4) it was frequently procedurally simpler to find the family than the individual defendant.

” The fact that modern law does not do this today is no result of legal limitations, but a modern sense that it is inappropriate to hold other family members responsible for the crimes of other members. I would mention that this change in the criminal law is frequently defended as a good and Christian thing, reflecting on Deuteronomy 24:6 and Ezekiel 18. Nevertheless, it persisted to be applied as a punishment for treason into the 19c in England until it dwindled away.

“A gain, however, it should be pointed out that this is the result of choice — not a necessary limitation on the law. Indeed, it is so possible, so easy for the law to punish family members that explicit prohibitions on doing this are found both in Scripture and the U.S. Constitution.”