|An anglo-saxon penny|
This distinction came about, Lambert suggests, because killing was seen as an open honourable offence, while theft was a dishonourable secret one. Thus a killer would be expected to admit the offence openly as a matter of honour and to make redress possible. Theft, by contrast, was a secret offence, the perpetrator was unknown and the victim could not know how to get redress. Lambert is at pains to stress that both were regarded as serious wrongs - but that seriousness did not automatically mean that criminal law was the appropriate remedy.
|An Anglo-Saxon helmet, from Sutton Hoo|
This is obviously of enormous historical interest, and if true would require a substantial rethinking of the history of crime and law. But should any of this trouble the legal theorist, who might well respond that historical development after the twelfth century merely underlines the normative claim that criminal law should be reserved for the most serious offences; that the modern position is best, and correct as well. I think that there are two possible responses to this. The first, and weaker, point would be that this at the very least reveals the contingency of some of the assumptions underlying our normative thought. We should beware making claims about the universality of some of our beliefs or intuitions, because such claims can be easily undermined. The second point though would raise deeper issues of method to point out that the ordering of seriouness is not primarily a moral issue but a matter of legal ordering. The moral weighting we might give to certain conduct must be understood through the lens of legal jurisdiction. From this perspective we may not want to argue that the modern position is wrong, but that it must be understood primarily as a legal and political question of state power rather than as a question of moral theory.