What “Freedom” Means For a New Criminal Justice System

Freedom. Let it ring!

Freedom. What does it mean?

Although the Greeks and Romans discussed Liberty and Independence and what it meant in their city-states and republic, Freedom is essentially an Anglo-American concept in political philosophy, having its origin in ancient Germanic languages and being used in the culture of the Anglo-Saxon.

Here I investigate the roots of this word, common usages today, and implications for criminal justice.

This concept first struck me as I was reading Montesquieu’s Spirit of Laws, one of the most influential books of the U.S. founding era.

The word fredum appears almost at the end of the book in a discussion about ancient Germanic law (Montesquieu gets his information from Tacitus, the great Roman historian). Upon reading it I was struck by the obvious similarity to the English word freedom.

Montesquieu comments that fred in Swedish means “peace.” Another word that has the same root as fredum and freedom is friend.

Additional meanings (besides peace) include: beloved, dear, one’s own. Dum or dom means: quality, realm, state of, or office.

Montesquieu describes a system of criminal justice in which the offending person (the “criminal” in our modern terminology) is placed, by the community, into a state or situation termed fredum, which is “compensation for protection granted from the right of vengeance.”

The “justice” system among these Germanic tribes

“…was nothing other than granting to him who had committed an offense one’s protection from the vengeance of him who had received it, and obliging the latter to accept the satisfaction that was his due so that, among the Germans, unlike all other peoples, justice was rendered to protect the criminal from the ones he had offended.”

I was surprised about two aspects of this concept: 1) that this “barbarian” people had a system set up to protect an offender from the immediate vengeance of the offended until an agreed-upon solution could be reached; and 2) that the word used to describe this situation was essentially the same word we revere as Americans: freedom.

According to Montesquieu:

“It was the guilty man who paid the fredum for the peace and security that he had lost because of the excesses he had committed and that he could recover by protection.”

How well does our modern, “civilized” criminal justice system allow the offender to make amends and satisfy the offended?

Instead of a system in which just compensation and restitution can be made to the offended party, we dehumanize the offender by incarcerating the individual in order to pay his “debt to society,” leaving the debt to the offended unpaid and preventing the offended party from recovering what it lost.

An alternative would be to embrace a more “barbaric” criminal code to replace the “civilized” criminal code handed down from Rome to England, which during the American Revolutionary period had penalties characterized thus by Charles Dickens in A Tale of Two Cities (note: Tellson’s was a major English bank):

“But indeed, at that time, putting to death was a recipe much in vogue with all trades and professions, and not least of all with Tellson’s. Death is Nature’s remedy for all things, and why not Legislation’s? Accordingly, the forger was put to Death; the utterer of a bad note was put to Death; the unlawful opener of a letter was put to Death; the purloiner of forty shillings and six-pence was put to Death; the holder of a horse at Tellson’s door, who made off with it, was put to Death; the coiner of a bad shilling was put to Death; the sounders of three-fourths of the notes in the whole gamut of Crime, were put to Death.

“Not that it did the least good in the way of prevention–it might almost have been worth remarking that the fact was exactly the reverse — but, it cleared off (as to this world) the trouble of each particular case, and left nothing else connected with it to be looked after.

“Thus Tellson’s, in its day, like greater places of business, its contemporaries, had taken so many lives, that, if the heads laid low before it had been ranged on Temple Bar instead of being privately disposed of, they would probably have excluded what little light the ground floor had, in a rather significant manner.

How did we get to a point in our history in which we execute someone for petty theft (300 years ago)? Or that we legislate mandatory “three-strikes” punishment for “career criminals” that the system seems to create?

Can fredum work in our day? Can we embrace a more civilized, fair, and equitable system of justice that promotes correction and natural consequence for the offender and restitution or compensation for the offended?

Only then can we move closer toward fredum/freedom: the state of peace.

****************

Mike Wilson received his B.S. degree in Chemistry from Brigham Young University and pursued graduate work at the University of California, San Diego, where he earned a M.S. degree in Biomedical Sciences prior to obtaining his M.D. at the UCSD School of Medicine.

He lives in Cedar City, Utah with his wife Jenni and their six children and practices emergency medicine in St. George, Utah while working on a Ph.D. in Constitutional Law at George Wythe University. He is also an Associate Mentor at GWU.

Mike’s passion is promoting idea that the common man has power and capacity to affect grand change in the world through true principles of love, goodness, and virtue. Because of his Jeffersonian trust in the common man, he considers himself a “little d” democrat (an ideal, not a political party).

He believes that the cause of liberty is founded essentially in widespread powerful education, checks on power, and promotion of virtue and goodness. Force is never a real solution to problems for Mike and the statesman’s role is to understand the ideal, see where society is, and then put himself in a position to move society in the direction of the ideal.