Germanic Restitution According To Tacitus And Its Flaws

Germania (in my Everyman's Library copy, it is also called Germany And Its Tribes) by the Roman historian Tacitus addresses various aspects of the Germanic tribes, spanning subjects like their religious worship, marriage norms, and warfare practices.  Of special focus in this post is what he claims about their means of punishing or "resolving" some offenses.  Just to acknowledge a crucial fact up front yet again, yes, no one can know what has really happened or not happened in the natural world or in human societies of the past; written sources and verbal hearsay prove only that there is evidence for or against a particular historical occurrence, including any event presented in the Bible.  But what is ascribed to these Germanic people connects with things of greater significance than mere history.

Perhaps a type of punishment besides restitution is true justice for an act like theft, which I am fully aware 1) is logically possible and 2) would mean Judeo-Christianity is objectively false on this point, but no matter what, the form of restitution attributed to the Germanic peoples in Germania could only be unjust if morality exists.  Why?  It involves a payment to entirely unrelated people, the ruler being the most irrelevant figure.  Chapter 12 holds the summary of Tacitus.  He claims these communities imposed capital punishment for treason or for being "unwarlike", yet for unspecified lighter offenses, almost certainly including theft, he says the following:

"Lighter offences, too, have penalties proportioned to them; he who is convicted, is fined in a certain number of horses or of cattle.  Half of the fine is paid to the king or to the state, half to the person whose wrongs are avenged and to his relatives."

Half of the payment going to the ruler is an easy way for someone in power to become more entrenched by claiming resources that have literally nothing to do with them personally.  The monarch (or any other political leader) was not the one victimized in this instance, so it could not be justice to direct any portion of the restitution to them, much less half every single time such amends are made with a person in this manner.  Customs of this kind, if restitution is ever morally required, would misappropriate that which is owed to one party, and especially when half of the payment is taken for the ruler or their class.

Of what is left, Tacitus says the animals are given to the wronged party and to their family.  Note that he does not say the animals go to the wronged party or to their family if the former is no longer alive or is unavailable for some reason.  His "and" absolutely seems to clarify that both the victim and their family receive the payment.  The victim's family at least is not as far removed from the victim themself as the king or some other such figure.  However, while the ruler getting an automatic share of the animals used to pay the "fine" is more egregiously illogical and unjust (if there is such a thing as deserved restitution), their family automatically getting a share would be baseless and even erroneous for the exact same core reason.  Their parents, siblings, and so forth are not the victimized party just because they are biologically related!

So, according to Tacitus, the Germanic people diluted all restitution payments—or at least this was assumed to be and practised as if ideal—by taking half for the ruler/ruling class.  Then some amount of the other half is divided further between the victim and their relatives.  A sliver could have been all that hypothetically made it to the actual victim, since on the system Tacitus presents, there is not necessarily a fixed amount of the second half of the fine that was supposed to be guaranteed to the wronged person.  But as for the ruler in power at the time, they would have received financial gain simply by holding their position!

How very different much of this is from the restitution prescribed by Yahweh in the Old Testament.  Because there are so many verses between Exodus, Leviticus, and Numbers about restitution, I will focus on one that is particularly relevant by direct wording to many of the points I brought up above.

Numbers 5:5-8—"The Lord said to Moses, 'Say to the Israelites: "Any man or woman who wrongs another in any way and so is unfaithful to the Lord is guilty and must confess the sin they have committed.  They must make full restitution for the wrong they have done, add a fifth of the value to it and give it all to the person they have wronged.  But if that person has no close relative to whom restitution can be made for the wrong, the restitution belongs to the Lord and must be given to the priest, along with the ram with which atonement is made for the wrongdoer."'"

Like the already quoted portion of what Tacitus wrote, Numbers 5:5-8 does not say that theft alone is in view.  Still, the scope of these verses does clearly encompass sins involving another person's property since the wording of making restitution and adding one-fifth of the value pertains to some sort of financial offense.  Other places in the Torah make it very clear that theft, except for the capital sin of theft of a human (Exodus 21:16, Deuteronomy 24:7), is a sin purely punished by financial restitution (Exodus 22:1, 4, 7-9, Leviticus 6:1-5).  For those men and women unable to pay restitution, which always involves something beyond restoring the original item or financial loss, thief must labor as a slave/servant until they achieve the restitution, go free in the seventh year (Exodus 21:2, Deuteronomy 15:12-14), or are mistreated by their master or mistress (Exodus 21:26-27, Deuteronomy 23:15-16).

If the thief who becomes a slave is employed by the very person they stole from and could not repay, perhaps abuse of the thief by the other party entirely nullifies the obligation to pay off whatever debt remains.  If they are employed by a third party, then this obligation to finish making restitution would not cease.  And if the victim of the theft or adjacent criminal sin has died before the offender voluntarily confesses or can fully make amends, then the restitution should be given to the victim's family members, if there are any, as is the blatant implication of Numbers 5.  The Biblical treatment of theft as a crime is objectively better for the offender and the victim than modern incarceration!  Clearly, while there is no strict logical necessity in Biblical morality being true, it does entail an objectively far more humane approach to all involved than imprisonment and a much more relevant approach than the form of restitution allegedly practiced by the Germanic people.

There is another way that Germanic practice deviates from Biblical prescription, though in this case it is not inherently unjust if morality exists and murder is evil (yes, murder is just immoral killing of a person, so this really would just mean that there is such a thing as murder).  A later part of the same work by Tacitus mentions how even murder was handled with fines of animals.  From this, it would seem likely that the same would be true of other acts like kidnapping.  Restitution for murder was also made by the offender giving a number of animals to the family of the victim, who in the case of homicide would no longer live to benefit from them.  The Germanic people, so says Tacitus in chapter 21, did this to thwart feuds between families that would risk the safety of the general region:

"It is a duty among them to adopt the feuds as well as the friendships of a father or a kinsman.  These feuds are not implacable; even homicide is expiated by the payment of a certain number of cattle and of sheep, and the satisfaction is accepted by the entire family, greatly to the advantage of the state, since feuds are dangerous in proportion to a people's freedom."

While it is necessarily true that it cannot be justice to split restitution between a governing official, the family of a theft victim, and the victim themself—which does not mean that undivided restitution to the victim must be justice—it is not necessarily the case that murder would have to deserve execution (though certainly not elaborate, dehumanizing tortures literally worse than murder itself as some have thought).  But compare the reported Germanic handling of homicide with the inflexible Biblical punishment for murder as opposed to accidental killing of a person (manslaughter):

Numbers 35:30-31—"'"Anyone who kills a person is to be put to death as a murderer on the testimony of witnesses.  But no one is to be put to death on the testimony of only one witness.  Do not accept a ransom for the life of a murderer, who deserves to die.  They are to be put to death."'"

Of course making restitution payments to the family of the murder victim is less unjust a reaction than murdering additional people in some feud merely because they are the family of the killer.  Yet, the Biblical position does actually regard human life, in this case the life of the murdee victim, much more highly than the moral-legal philosophy expressed by Germanic people according to Tacitus.  The German tribes reportedly executed people for desertion, but not for something like murder!  Numbers 35 partly reiterates what Yahweh prescribes as early as Genesis 9:6 and addresses next in Exodus 21, with Exodus 21:20 emphasizing how murdered male and female slaves are no exception: murder of a human always deserves execution by other people.  The book of Numbers goes further by universally forbidding any sort of compensation to escape the death penalty.  

While some have misunderstood this to mean that other general capital sins can be alleviated by monetary payment although the verses addressing them also inflexibly prescribe execution (but without mentioning that a ransom payment is evil), such as with attacking one's father or mother (Exodus 21:15), Numbers 35 really just clarifies Exodus 21:28-32.  Negligently allowing someone else to die, in the provided example by not confining a previously aggressive bovine one owns before it kills a person, is a capital sin unless the family of the deceased is willing to accept a financial ransom to have the life of the sinner spared.  Intentional murder does not have this option.  If it was not for Exodus 21:28-32, Numbers 35:31 still would not mean that other capital sins can have a payment of money substituted for execution.

Whether or not Biblical philosophy is true (yes, all theology is inevitably philosophy), the supposed restitution practices of the Germanic tribes in the day of Tacitus trivialized victims.  On one hand, in matters where the victim survived, the fine they received was only a portion of the resources extracted from the offender, which was for some reason split among other parties who were not victimized.  On the other hand, should the victim not survive in the case of murder, they would not have been around to enjoy the restitution for that which the Torah calls so wicked that loss of money on the murderer's part can never suffice in place of their own death.  The purpose of Tacitus seems quite far from indirectly highlighting how much more highly Judeo-Christianity regards victims of interpersonal criminal sins than did Germanic philosophy and custom, but the Biblical treatment of restitution is all around better for victims.