Wyrd and the Law: Are Criminals Outlaws?

by Dan Ralph Miller

Urlog, in Old Norse (ON), literally means "primal law" and refers to the laws of cosmic order. Urlog lays down all the precedents of creation, which define the ultimate fate of the World-tree, and all creatures which inhabit it, including gods, giants, elves, humans and others.

In elder times the word "law" (ON "logr" or "lag" in Old English) did not have the same meaning that it has for many Modern English speakers. For most today it has connotations of written, codified statues, rules and regulations and conjures up images of governments, lawyers, judges and juries. Law is defined by Webster's as "all the rules of conduct established and enforced by the custom of a given community, state or other group."

The root concept behind the word has not substantially changed, conveying "that which has been laid down and established." The key phrase here is "laid down". The process is seen as a literal layering, one moment in time being overlaid by the following, each event the result of its precedents, each reaction the result or some previous action, which in turn is the reaction of another action, and so on. In this respect it is essentially an empirical system.

In the natural world, law is central to the evolution of species, as only those adaptations which are in accord with natural law (that is how things are being laid down and established) will ensure the survival of the organism and be passed to the following generation. Every living creature exists today formed and shaped as a direct result of that which has already been laid down in its bloodline by its ancestors and its environment. On a grander scale, the same holds true for "inorganic "systems such as stars, planets and galaxies, which all exist in the forms they do because of a whole series of preconditions being satisfied. Likewise, apparently, on the microscopic scale, where previous "quantum events" set precedents for subsequent subatomic events.

In the human sphere, whose boundaries are ultimately defined by natural law, or urlog, decisions and actions are similarly limited, affected and defined by the decisions and actions which preceded it. Every thing we do affects the web-of-wyrd (OE "wyrd" is cognate to ON "ur") and for better or worse sets precedents which affect the outcome of subsequent events. This speaks to the importance of deeds to the Heathen, which is a subject itself worthy of many another article. It relates here by establishing the basis for tribal law or custom to develop.

As a tribe survives, or fails to, the collective society soon learns through a process of trial and error what works, or is complimentary to the natural laws which ultimately define their sphere of influence, and what does not work. Over time not only do dysfunctional behaviours become obvious to identify but preventative, remedial and restorative customs also begin to evolve. So, for example, it became custom in the late Viking era for a new groom to pay a large sum to the bride's parents, in part to compensate them for the loss in her labour, as well as a considerable sum to the bride herself, as a form of life insurance in case of intentional or unintentional abandonment. Or with the case of weregeld, it became customary in disputes which resulted in violence and injury or death that the victims or their families could sue the perpetrator for damages, loss of income or loss of life.

The guiding principle in all these kinds of customs was not so much in consideration for the individual victim or the alleged criminal, so much as it was in consideration of the good of the whole. The collective good of the tribe takes precedence over the concerns or needs of the individual. At the same time, the tribe itself is comprised of individuals and could not exist as such without them, so we see that customs have evolved that balance the rights of the tribe as a whole with those of both the victim and the perpetrator.

Among Germanic tribes the community collective responsible for making judgments, and the meeting at which decisions took place, was usually called a "thing". Today, "thing" means "the matter or object under discussion", but in days of yore it was the community of freemen gathering discuss matters of importance to the tribe. By the time Christianity came to NW Europe an elaborate system of tribal law had already been fully developed.

Prior to Christianity the institution of tribal law, intimately related with that of the storytelling of tribal history, was entirely an oral tradition. Depending on which Germanic tribe and at what point in time, the lore of tribal law was held perhaps by a law-speaker, or a tribal king, a thule (ON), or a group of elders called witan (OE). Whoever the vessel, the keeper or keepers of tribal law inherited from their predecessors the established custom of their given community.

Many key features distinguish Germanic legal traditions. One example is the concept of a jury of peers. Another is the important of precedence, showing a deep regard for what works, for previously made decisions and long-standing traditions. Another example, the thing or folkmot, comprised of eldermen or headmen from various local regions, or even of all freemen of the tribe, whose task it was to make community decisions and judgments. Throughout the Germanic world, it was the tribal collective that would decide how to interpret the ancient tribal law in each case and instance, according to circumstance and for the best of the community. And yet another example, the respect for local law and tradition in lands occupied by migrating Germanic tribes, as we shall see.

When the first Germanic kings were converted to Christianity, and then necessarily their subjects, and writing was introduced into tribal government, the nature of law was to very much change. But it was not so much the customary mechanisms of executing law, such as the thing, or folkmot, which changed. More the nature of kinghood changed from that of a small local tribal or clanic chieftain, to that of the modern nation builder, overcoming, by force if necessary, local intertribal friction and uniting many regional clans into a single nation.

It is beyond the scope of this essay to detail the whole of the philosophic transformation that accompanied the introduction of Christianity to the Germanic tribes, but at the base of our legal questions lay the Bible. The religious emphasis on the written word of the Christian God changed the nature of law for the Teutonic tribesman, with both the Judaic tribal commandments of the Old Testament as well as the radical innovations in God's Law laid out in the New Testament.

Other developments also influenced Germanic law. The size of the population under a single national king became many orders of magnitude greater than ever before, to the point where two key changes took place.

Firstly, the role of law-keeper was expanded and augmented by the introduction of writing. For the first time details of judgments and decisions could be kept accurately recorded, and customs could be written down and elaborated upon.

Secondly, swelling populations, led to a change in law that saw it move from being prescriptive to being proscriptive. That is to say, it became a matter of simple crime and punishment dealing with so many more disputes and criminals than a tribal king of old would ever have thought possible. The duties of judgment required the employment of judges, as no single king could hear all the cases. And as the frontiers closed in on an ever shrinking Europe, the old traditions of outlawry and banishment became less feasible and more risky, necessitating the creation of the dungeons, jails and torture chambers, to say nothing of the mass executions of the likes of Charlemagne, in the late Mediaeval period that so fire the contemporary imagination.

At this point law became of two natures. The ancient, prescriptive common law, based on the customs of the people, of the community, and respecting and taking into account previous decisions and ancient traditions. While at the same time, the new proscriptive, statute law was given birth, based not on precedent but by political need and decree of a ruling body or king.

But while Christian overall, by the beginning of the colonial period and European expansionism, ancient tribal legal traditions continued to be passed down by the descendants of the ancient Heathens, not the least of which among the English was the common law and all its attendant traditions. The folkmot, the jury of peers, the right to sue for civil damages to name only a few. Worthy of special note, but only slightly beyond the scope of this article, is of course Iceland, where the traditional althing developed into a form of government which the Icelanders say is "the world's first democratic republic".

Taken out of context perhaps, and overlaid with iconography of the Bible and the necessity of the empire-building king, no longer applicable to a tribal society, but still nevertheless patently Germanic to the core. Our Canadian government today is a direct modern cultural survival of these ancient tribal traditions, albeit mutated into a sizable bureaucracy.

Much to our favour, by adopting the Charter of Rights and Freedoms in 1982, (which finally accords with the United Nations Declaration of Human Rights, 1948) the system has begun to shed its blatant colonialist agenda such as the systematic breakup and conversion of aboriginal tribes in Canada. While cases concerning aboriginal abuse and the lack of treaties in the West are still being heard by the courts, it is evident that Canada has become more accepting, officially at least, of religions other than Christianity.

And although Christianity likes to think of itself as civilizing the heathen of Europe, many of the cultural institutions we admire most today as "civilized" are in fact Germanic Heathen in ancient origin. This is not even a well kept secret, as students of law can attest. Even the famous third American president Thomas Jefferson knew the true roots of common law, as he reveals in a letter to Major John Cartwright entitled "Saxons, Constitutions and a Case of Pious Fraud":

"I was glad to find in your book a formal contradiction, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions, that Christianity is a part of the common law. The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed."

Under the colonial British Crown the respect of common law for local tradition became a means of allowing the natives in various colonies to settle their own problems according to the laws native to that land. This held true in British colonies such as India, and has been used as a legal argument in securing self-government for aboriginals in modern Canada. Richard Dale Pesklevits addresses this question in the legal thesis Customary Law, the Crown and the Common Law: Ancient Legal Islands in the Post-Colonial Stream (2002).

"Respect for, and accomodation [sic] of local customary law has been a constant and integral feature of law in Britain since Anglo-Saxon times. It guided the emergence of the common law, and continues as a rule of law to the present day. Such respect and accommodation was an essential principle that permitted the peaceful consolidation of the British realms from its constituent parts. Continuity of law is a legal presumption whether territories have been added by conquest, cession or annexation. The principle respect for local legal custom was one of two schools of thought carried to Britain's overseas colonies..."

There are many features of legal culture that are worthy of further discussion, but for our purposes here we will focus on the issue of civil damages, and the supposedly innovational concepts of restorative justice, including ideas like restitution, victim assistance, victim-offender mediation, ex-offender assistance and so on.

The effectiveness and benefit of approaches like these have been demonstrated in many jurisdictions, and it is not surprising, as such notions are at the practical root of traditional Germanic tribal law. That is to say, although we are modern, we are still at the core tribesmen, and we respond best to this sort of folk-oriented remedial justice.

Otherwise, accepted notions of crime and punishment in this society threaten a booming industry in the building, maintenance and security of growing number of jails, putting strain on government resources, padding the pockets of lawyers, and causing unnecessary suffering and hardship to whole communities as a result.

So to turn finally to our question, whether convicted criminals in Canada should be considered outlaws. That is to ask, should they be considered banished and cast out of the Heathen community or communities of which they were a part? Once they have been thrown in jail, do we abandon them there and cut them off from the community? When they finish serving their time, what then, are they welcomed back into the fold or shunned? How many Heathen have served jail-time in their past? Does that make them untouchable?

There has been considerable debate on this question. Anecdotal observations suggest that many Canadian Heathen may consider criminals as outcasts. In fact my impetus for writing this article was that a neo-pagan friend working in prison-ministry approached me for an explanation of what she had been told by some Asatruar: "Asatru shuns criminals and bans them from the community when they have been convicted and are guilty of a crime." My contact genuinely wanted to understand why this would be the case.

After doing a little research of my own I discovered that while some modern Heathen may believe criminals should be shunned, it does not appear to have been the case in days of old. The tradition of weregeld, whereby a victim or victim family can sue for injury, loss of property or life, and other customs, suggest that most offenses were dealt with in ways not inconsistent with the restorative justice approach. The main focus of the tribal approach to justice is the good of the community as a whole, and finding ways of making right what has been done wrong.

Even outright outlawry and banishment, surpassed in extremity only by execution, was rightly only on the scale of a single tribe or alliance of tribes. Convicted murder and outlaw Eirik the Red, father of Lief the Lucky, for example, spent several years exploring Greenland after his conviction before returning to Iceland. Despite the fact of his outlawry, he was still heard by the folk, and succeeded in raising a party of several hundred migrants to accompany him back in the first European colonization of Greenland.

In our case today, so much has changed that it could be argued that tribal values can no longer be applied to the situation. The ancestors never had to deal with anything like modern jail in heathen times, that is true. But it nevertheless should be clear that this modern business of unilaterally and universally shunning all convicted criminals is not in keeping with the spirit of Germanic tribal law and ancient custom.

The historical record shows that for a great many minor offenses, like assault and battery, theft, adultery, family abandonment, and so on, the traditional tribal approach which emphasized the whole of the community was intended to retain the consolidation and functionality of the tribe. Only in the most extreme cases, especially involving repeat offenders, was outlawry and capital punishment the preferred remedy. And as we have seen, even outlawry could be reversed by way of one's deeds. Far from setting hard and fast rules, the flexibility and responsiveness of the community to internal threats are hallmarks of traditional Germanic tribal law.

It seems clear, then, that today, determining whether a convicted criminal is an outlaw, or not, should be on a case by case basis, using all the historical precedents at our disposal, and the remedies we should choose are those that emphasize the good of the community as a whole, just as our ancestors would have done. Anything else would be uncivilized.

© 2005, Heathen Freehold Society
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