ATTN Lawtalkers: The Concept of Outlaw

[Viking]

When did the concept of Outlaw end in Law. By Outlaw I mean Outlaw as in person who is no longer protected by the law itself.

The wiki article on outlaw as a legal status only dates the end of civil outlawry in England and Scotland (dead beat dads etc.). I'm interested in criminal outlawry.

I'm not only thinking about Anwar Al Awlaki, but also characters like Abu Qatada and Mullah Krekar.

This is one step in a thought process where I am trying to answer is what, if any, sanction a citizen (not a friend or officer of the court) can suffer by refusing to cooperate or activly refusing to subject himself to the jurisdiction of a court.

I'm thinking of the very common situation where a person has been expelled from a country, refused to leave and his home country refuses to accept him (though he could voluntarily enter). The aphorism is posession is nine tenths of the law, but in these cases refusing to cooperate is precluding the implementation of the courts decree.

Does an expulsion order allow the authorities to dump the man on a somali beach if he refuses to leave and he somali government refuses to accept him? If no, why?

[Barrister]

When did the concept of Outlaw end in Law. By Outlaw I mean Outlaw as in person who is no longer protected by the law itself.

The wiki article on outlaw as a legal status only dates the end of civil outlawry in England and Scotland (dead beat dads etc.). I'm interested in criminal outlawry.

I'm not only thinking about Anwar Al Awlaki, but also characters like Abu Qatada and Mullah Krekar.

This is one step in a thought process where I am trying to answer is what, if any, sanction a citizen (not a friend or officer of the court) can suffer by refusing to cooperate or activly refusing to subject himself to the jurisdiction of a court.

I'm thinking of the very common situation where a person has been expelled from a country, refused to leave and his home country refuses to accept him (though he could voluntarily enter). The aphorism is posession is nine tenths of the law, but in these cases refusing to cooperate is precluding the implementation of the courts decree.

Does an expulsion order allow the authorities to dump the man on a somali beach if he refuses to leave and he somali government refuses to accept him? If no, why?

Viking, as you have asked for help from lawtalkers I wanted to give this a go, but you've combined about three different concepts that have little or nothing to do with each other.

First you have asked a question of jurisdiction, and whether or not one can remove oneself from the jurisdiction of the courts.  The very simple answer to that is no.  It will of course potentially vary from country to country, but in the common law world the courts have jurisdiction over all people within their territorial jurisdiction, no matter what their status.  Citizens, landed immigrants, and those illegally in the country all are subject to the jurisdiction of the court if they are physically located within that jurisdiction.  I have dealt with several 'freemen/sovereign citizens/de-taxers who try to claim the courts have no jurisdiction - they are mistaken.

Then you ask a question of immigration law.  I doubt very much it is a "very common situation".  I could give a half answer, but really immigration law is its own particular beast and not an area I practice in.

[Martinus]

As BB said, I think you are confusing several things here.

Technically, an outlaw is someone who has no rights under a given legal system, e.g. a right to live (which would correlate with a prohibition against killing such person). A concept like this does not exist in Western legal systems anymore, as far as I am aware, however various self-defense laws may come close in creating a sort of situational/contextual status of an outlaw (but this status largely expires once the immediate threat from the "outlaw" is removed).

A situation in which the legal apparatus of a state would have no jurisdiction over a person "in its power" (e.g. in its territory) is very rare and usually is limited to people enjoying some form of immunity (such as foreign diplomats or heads of state) - in such situations, obviously, the police forces of the state cannot treat such person as they please either.

This is something completely different from the situation of citizenship (or lack thereof) which may affect what rights a person enjoys under a given legal system.

[Martinus]

Incidentally, there seems to be a constant tendency to reintroduce the concept similar to that of an outlaw "through the backdoor" (e.g. in the form of "illegal combatant") but so far such attempts have been largely resisted - which is pretty fine since the concept of an outlaw is imo incompatible with modern human rights.

[Viking]

Re-reading my first point I realize how rambling and confused it was. There were alot of questions, most of which were not fully formed.

1. The concept of outlaw - a question of history, when was the concept removed from your local legal system and how; and what was it replaced with (if anything).

2. Is a person sentenced to perform an action obliged to carry out that action? Be it community service or leaving the country; and can a person who is not part of the legal system (I realize that officers of the court might have different obligations in this case) be punished for refusing to follow a courts order to perform an action.

3. What is the status of a judicial ruling where an order is given by a court without any "or else" attached to it if the person ordered refuses to comply.


Martinus points out the human rights aspect of this. I know Amnesty (and many governments) have argued that article 5. of the UN Declaration on the Rights of Man (sp?) means that the death penalty is a breach of human rights, but the same article declares in the same language that freedom is a right, yet we have prisons. Me being an engineer means that this is all very confusing. The concept of outlaw is effectivly a removal of human rights, I realize that. So I'll add a fourth question.

4. What is a judicial system to do when the punishments for refusing to follow a court order are less taxing than following the court order?

[CountDeMoney]

An outlaw is whoever Sheriff Buford T. Justice says it is.  And nobody makes Buford T. Justice looks like a possum's pecker.

[Barrister]

Re-reading my first point I realize how rambling and confused it was. There were alot of questions, most of which were not fully formed.

1. The concept of outlaw - a question of history, when was the concept removed from your local legal system and how; and what was it replaced with (if anything).

2. Is a person sentenced to perform an action obliged to carry out that action? Be it community service or leaving the country; and can a person who is not part of the legal system (I realize that officers of the court might have different obligations in this case) be punished for refusing to follow a courts order to perform an action.

3. What is the status of a judicial ruling where an order is given by a court without any "or else" attached to it if the person ordered refuses to comply.


Martinus points out the human rights aspect of this. I know Amnesty (and many governments) have argued that article 5. of the UN Declaration on the Rights of Man (sp?) means that the death penalty is a breach of human rights, but the same article declares in the same language that freedom is a right, yet we have prisons. Me being an engineer means that this is all very confusing. The concept of outlaw is effectivly a removal of human rights, I realize that. So I'll add a fourth question.

4. What is a judicial system to do when the punishments for refusing to follow a court order are less taxing than following the court order?

1. I don't know that there was ever a concept of an "outlaw".  At least in this country the legal system sprang fully-formed into existence by importing the laws of England as of the time of the province's admission into confederation.  I suppose if you go pre Hudson's Bay purchase there may have been some issues, but that was fully swept away.

2. Yes - a person ordered to do an action must do that action.  The question then of course becomes "well what if they don't".  Well, it varies.  Most laws which create some sort of compulsion list what the consequences are - which are usually a new charge before the court.

3. We have a save-all section - s. 127 of the Criminal Code makes it an offence to violate an order of the court if there is no other penalty proscribed by law.

4. Well that can be a problem.  Someone who is determined not to do a certain thing can often get away with it.  Judges are often loath to throw someone in jail, or even if they do do not want to do so forever.  There is a ruling in this coutry on contempt of court - you can theoretically be jailed indefinitely until you agree to comply.  The courts have held that is unjust, and have made the maximum six months.  So if you are willing to go to jail for six months you can "get away" with being in contempt of court.

[Ideologue]

Yeah, are you talking about injunctions (orders by the court to do, or refrain from doing, something) here?  They can be enforced through contempt orders for refusal, which have basically whatever penalties the judge thinks necessary to coerce the desired behavior (e.g., you sit in jail indefinitely until you testify, your corporation gets fined $10,000 a day after 30 days unless and until you are in compliance with the order, etc.) and sometimes directly (e.g., paratroopers are flown in to make sure your schools aren't racist and that your school buses waste gasoline for tolerance; actually I may be forgetting what happened there).

[Viking]

Yeah, are you talking about injunctions (orders by the court to do, or refrain from doing, something) here?  They can be enforced through contempt orders for refusal, which have basically whatever penalties the judge thinks necessary to coerce the desired behavior (e.g., you sit in jail indefinitely until you testify, your corporation gets fined $10,000 a day after 30 days unless and until you are in compliance with the order, etc.) and sometimes directly (e.g., paratroopers are flown in to make sure your schools aren't racist and that your school buses waste gasoline for tolerance; actually I may be forgetting what happened there).

I'm primarily thinking about deportation orders to countries which either don't have functioning governments or refuse to accept the deportees (presumably to keep recieving remittances) where the deportee refuses to leave voluntarily. This person has no property or money and is wholley dependent on government aid for his subsistence.

I'm trying to understand how we went from a situation in medieval law where refusal to submit to justice meant being denied the protection of the law to a situation where cooperation or even acceptance of jurisdiction (or anything really) is sufficient to put you outside the protection of the law.

It's just that my sense of fairness is such that I feel that a system where sabotaging the court and judicial procedure effectively has no sanction and is often the best strategy if your case is weak. What brought this issue up in my mind is a recent interview with a senior norwegian police officer who dismissed the issue of paperless refugees claiming that once they have gained permission to stay (for whatever reason, there are many, usually humanitarian grounds after having avoided deportation for X years) and want to go home on vacation their papers almost magically re-appear.

[Martinus]

Re-reading my first point I realize how rambling and confused it was. There were alot of questions, most of which were not fully formed.

1. The concept of outlaw - a question of history, when was the concept removed from your local legal system and how; and what was it replaced with (if anything).

It existed in pre-partition Poland and was also re-introduced in the Napoleon's Penal Code (introduced in the Duchy of Warsaw) - it was a penalty imposed by the court, usually on people tried in absentia (it was called the "civil death" in the Napoleon's code), for the most serious crimes. Essentially, the person who was sentenced to that penalty was treated by the legal system as if he or she was dead, and had no rights. His heirs inherited his estate (assuming it wasn't confiscated by the crown), etc. It was abolished in the Kingdom of Poland in 1825.

2. Is a person sentenced to perform an action obliged to carry out that action? Be it community service or leaving the country; and can a person who is not part of the legal system (I realize that officers of the court might have different obligations in this case) be punished for refusing to follow a courts order to perform an action.

Yes and yes. If the court has jurisdiction to sentence someone to perform some action, it also has jurisdiction to enforce that ruling (plus, based on international conventions, foreign courts can usually also enforce such rulings) - also there is really no situation when someone is "not part of the legal system" (most countries' courts have pretty broad jurisdictions).

3. What is the status of a judicial ruling where an order is given by a court without any "or else" attached to it if the person ordered refuses to comply.

Legal systems have rules for judicial order enforcement. If the order requires a person to perform a "passive" action (e.g. give up some asset or pay a fine), then it can be enforced e.g. by a receiver/bailiff forcibly collecting the fine (by auctioning someone's assets or seizing their bank account) or recovering the item by force (e.g. assisted by the police - this is usually the case when eviction is concerned, for example). If the order requires a person to perform an "active" action (e.g. community service), then usually there are rules for such sentence to be commuted e.g. to a fine or an arrest if not performed. Likewise, failing to perform a court order often carries penalties (such as a fine or an arrest) for court contempt. In civil cases, when someone is required to perform a specific action, usually a failure to do so means it is commuted to damages/compensation instead.

4. What is a judicial system to do when the punishments for refusing to follow a court order are less taxing than following the court order?

The penalties (like fines) listed above for a failure to perform a court order are usually cumulative (i.e. you can be technically fined ad infinitum or until a certain cap is reached if you repeatedly fail to perform the same court order). But there are situations, especially when dealing with big business, when it may actually be more profitable to pay the fine(s) than to do something you'd rather not do. However, such issues are usually resolved by making sure the fine (or arrest) is big/painful enough.

[Martinus]

Yeah, are you talking about injunctions (orders by the court to do, or refrain from doing, something) here?  They can be enforced through contempt orders for refusal, which have basically whatever penalties the judge thinks necessary to coerce the desired behavior (e.g., you sit in jail indefinitely until you testify, your corporation gets fined $10,000 a day after 30 days unless and until you are in compliance with the order, etc.) and sometimes directly (e.g., paratroopers are flown in to make sure your schools aren't racist and that your school buses waste gasoline for tolerance; actually I may be forgetting what happened there).

I'm primarily thinking about deportation orders to countries which either don't have functioning governments or refuse to accept the deportees (presumably to keep recieving remittances) where the deportee refuses to leave voluntarily. This person has no property or money and is wholley dependent on government aid for his subsistence.

I'm trying to understand how we went from a situation in medieval law where refusal to submit to justice meant being denied the protection of the law to a situation where cooperation or even acceptance of jurisdiction (or anything really) is sufficient to put you outside the protection of the law.

It's just that my sense of fairness is such that I feel that a system where sabotaging the court and judicial procedure effectively has no sanction and is often the best strategy if your case is weak. What brought this issue up in my mind is a recent interview with a senior norwegian police officer who dismissed the issue of paperless refugees claiming that once they have gained permission to stay (for whatever reason, there are many, usually humanitarian grounds after having avoided deportation for X years) and want to go home on vacation their papers almost magically re-appear.

Well, it's hard to make someone who has nothing to lose do something - it's not limited to immgrants.

[Barrister]

Yeah, are you talking about injunctions (orders by the court to do, or refrain from doing, something) here?  They can be enforced through contempt orders for refusal, which have basically whatever penalties the judge thinks necessary to coerce the desired behavior (e.g., you sit in jail indefinitely until you testify, your corporation gets fined $10,000 a day after 30 days unless and until you are in compliance with the order, etc.) and sometimes directly (e.g., paratroopers are flown in to make sure your schools aren't racist and that your school buses waste gasoline for tolerance; actually I may be forgetting what happened there).

I'm primarily thinking about deportation orders to countries which either don't have functioning governments or refuse to accept the deportees (presumably to keep recieving remittances) where the deportee refuses to leave voluntarily. This person has no property or money and is wholley dependent on government aid for his subsistence.

I'm trying to understand how we went from a situation in medieval law where refusal to submit to justice meant being denied the protection of the law to a situation where cooperation or even acceptance of jurisdiction (or anything really) is sufficient to put you outside the protection of the law.

It's just that my sense of fairness is such that I feel that a system where sabotaging the court and judicial procedure effectively has no sanction and is often the best strategy if your case is weak. What brought this issue up in my mind is a recent interview with a senior norwegian police officer who dismissed the issue of paperless refugees claiming that once they have gained permission to stay (for whatever reason, there are many, usually humanitarian grounds after having avoided deportation for X years) and want to go home on vacation their papers almost magically re-appear.

Well, it's hard to make someone who has nothing to lose do something - it's not limited to immgrants.

Yeah - I'm not really sure what to say to Viking.

As a criminal lawyer I frequently deal with people who are not really well tied in to civil society.  We can put someone on a probation order, a driving prohibition, a fine order, and a firearms ban.  But if someone just flat out refuses to comply with anything the only option is to put them in jail.  And as a society we often don't really want to do that if the order they are refusing to comply with is a small one.  The example I deal with twenty times a day in docket court are court ordered conditions not to drink alcohol (because they have a history of committing other, more serious crimes while under the influence of alcohol).  Clearly for the good of both the individual person and society as a whole the person needs to stop drinking - but what do we do if they drink anyways?  The answer here is we put them in jail for a short period of time (30 days or less) then release them again telling them this is what will continue to happen if you continue to drink.

It's far from ideal, but what else are we going to do?

[crazy canuck]

I'm trying to understand how we went from a situation in medieval law where refusal to submit to justice meant being denied the protection of the law to a situation where cooperation or even acceptance of jurisdiction (or anything really) is sufficient to put you outside the protection of the law.

The difficulty is that your underlying premise is mistaken.  The medieval period (depending on what century you are thinking about) was largely despotic.  The King and his appointees meeted out justice without any particular legal norm or systematic analysis.  Canon law on the other hand was developing rapidly and as we all know there was a fair amount of friction between the Church and State over jurisdictional issues - ie who had authority to decide what.

The concept of an outlaw didnt have anything to do with the power of King (Church) power to pronounce a sentence or dispense "justice".  Being declared an outlaw was a punishment which carried with it the removal of lands (or tenure on the land which was more often the case) which in turn meant starvation unless the person could atone in some way and again become attached (usually with a lesser status) to a land owner in some way.

It was a very effective means of social control.  One had to be law abiding or their very means of survival could be removed.

Deportation is very similar in concept.  One must be law abiding or risk deportation back to their country of origin.  I have heard of cases where the country of origin is difficult to establish but that is a separate issue.

[Barrister]

CC - do you know the answer to Viking's question regarding deportation to failed states?

If someone is subject to a removal order, and has been unable to claim refugee status, but is from a country such as Somalia (well, mostly Somalia) do you happen to know what happens?

[crazy canuck]

Iirc the failed state issue is a red herring.  If immigration officials can identify the country of origin (ie nationality) off they go to that state, failed or not.  The issue that can sometimes occur is that it is difficult to identify the national identity.  This can be more difficult for "failed states" because they may not cooperate in the indentification process  - mainly because there are no records or no one to cooperate with.