By Daniel Klerman
Independent Institute Working Paper #19 (2000)
Introduction: Although modern societies generally entrust enforcement of the criminal law to public prosecutors, most crimes in pre-modern societies were prosecuted privately. In classical Athens, ninth-century Germany, and England before the nineteenth century, there were no public prosecutors for most crimes. Instead, the victim or a relative initiated and litigated the cases. This article is the first rigorously quantitative analysis of private prosecution. It focuses on thirteenth-century England and uses statistical techniques, such as regression analysis, to explain the changing rate of private prosecution.
Because statistical analysis is extremely uncommon in legal historical scholarship, it is hoped that this article will show more generally that quantitative methods can provide new insights into old puzzles. Because private prosecution was common in many premodern societies and remains a subject of theoretical debate among contemporary scholars, a thorough examination of thirteenth-century private prosecutions has relevance not only to English legal historians, but also to historians of other legal systems and to modern criminal procedure scholars. In addition, although the importance of settlement to the resolution of disputes has been widely recognized in both modern and historical scholarship, it is less common for scholars to focus on settlements between victim and accused in the context of criminal cases. Finally, by showing how changes in legal rules affected litigant behavior, and vice versa, this study contributes to understanding the broader relationship between law and society.