ATTN Lawtalkers: The Concept of Outlaw

[Malthus]

To address Viking's question - it would appear that the concept lasted longer than I had thought. From Wikipedia:

In the context of criminal law, outlawry faded not so much by legal changes as by the greater population density of the country, which made it harder for wanted fugitives to evade capture; and by the international adoption of extradition pacts.

The Third Reich made extensive use of the concept.[8] Prior to the Nuremberg Trials, the British jurist Lord Chancellor Lord Simon attempted to resurrect the concept of outlawry in order to provide for summary executions of captured Nazi war criminals. Although Simon's point of view was supported by Winston Churchill, American and Soviet attorneys insisted on a trial, and he was thus overruled.
...
There was also civil outlawry. Civil outlawry did not carry capital punishment with it, and it was imposed on defendants who fled or evaded justice when sued for civil actions like debts or torts. The punishments for civil outlawry were nevertheless harsh, including confiscation of chattels (movable property) left behind by the outlaw.

In the civil context, outlawry became obsolescent in civil procedure by reforms that no longer required summoned defendants to appear and plead. Still, the possibility of being declared an outlaw for derelictions of civil duty continued to exist in English law until 1879 and in Scots law until the late 1940s. Since then, failure to find the defendant and serve process is usually interpreted in favour of the defendant, and harsh penalties for mere nonappearance (merely presumed flight to escape justice) no longer apply.
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There have been many instances in military and/or political conflicts throughout History whereby one side declares the other as being "illegal", notorious cases being the use of Proscription in Republican Rome's civil wars. In later times there was the notable case of emperor Napoleon whom the Congress of Vienna, in 13 March 1815, declared to be "outside the law".

I had forgotten that Napoleon was famously declared an "outlaw". I never knew that the Scots retained civil outlawry until the 1940s!

[The Minsky Moment]

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 

I disagree with this pretty strongly as a description, at least with respect to western Europe (which is what I am familiar with). 

[crazy canuck]

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 

I disagree with this pretty strongly as a description, at least with respect to western Europe (which is what I am familiar with).

OK, give me examples of where I am wrong regarding secular law.  As I said I am quite willing to concede that canon law was much further advanced and I am also willing concede that this does not hold as a universal rule - there were some monarchs who tried to reform the law within their realms but as a general rule, within the secular jurisdiction, the Kings word was well, law.

[Malthus]

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 

I disagree with this pretty strongly as a description, at least with respect to western Europe (which is what I am familiar with).

OK, give me examples of where I am wrong regarding secular law.  As I said I am quite willing to concede that canon law was much further advanced and I am also willing concede that this does not hold as a universal rule - there were some monarchs who tried to reform the law within their realms but as a general rule, within the secular jurisdiction, the Kings word was well, law.

Wasn't the whole kerfuffel between Thomas a Becket and Henry II at least in part caused by Henry's insistance that criminal clerics be tried by common law (where they could be punished) rather than by canon law (where they would most likely get a slap on the wrist)?

[crazy canuck]

Wasn't the whole kerfuffel between Thomas a Becket and Henry II at least in part caused by Henry's insistance that criminal clerics be tried by common law (where they could be punished) rather than by canon law (where they would most likely get a slap on the wrist)?

You must have missed the part where I said:

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.

[Tonitrus]

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

Sheriff Buford T. Justice is not germane to this conversation. 

[The Minsky Moment]

OK, give me examples of where I am wrong regarding secular law.  As I said I am quite willing to concede that canon law was much further advanced and I am also willing concede that this does not hold as a universal rule - there were some monarchs who tried to reform the law within their realms but as a general rule, within the secular jurisdiction, the Kings word was well, law.

If by medieval we mean post-Carolingian, that is late 10th century to early 15th, then in the early part of the period, the role of monarchs with respect to "secular" was pretty limited.  (I put secular in scare quotes because there wasn't always a clear distinction between the sacred and mundane particularly in criminal justice, where prior to 1215, priests typically were called upon to administer and interpret the ordeal).  In early medieval socities, customary law was still dominant, and customary law was highly localized in content, procedure and administration.  Even land disputes tended to be resolved in baronial courts unless they involved the royal demesne or the king's chief vassals.  It's not until the late 12th century that energetic monarchs like Henry II or Phillipe II start expanding royal legal jurisdiction.  But as the royal involvement in secular justice expands, it became impractical for the King himself and his close advisors to deal with such matters personally.  to handle the volume of cases, the crown has to employ clerks to process the increased work, establish courts to hear cases,  and procedures for handling cases (like the writ system in England). Royal agents have to be posted to local areas to help administer the royal justice - but in order to have some control over what those people do, formal and informal rules, norms and procedures have to developed for them to abide by. 

And so medieval royal justice evolves in way that is not really despotic at all, but rather creates the foundations for rule of law.  Indeed a key strategy for augmenting royal power, particularly in medieval England, was for the royal courts to acquire a reputation for efficiency, fairness, and relative predictability.  Much of the early history of the English common law derives from attempts by clever lawyers to shoehorn their pleadings to get their cases out of local courts and into the system of royal justice which was perceived to be of higher quality.

[Ed Anger]

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

Sheriff Buford T. Justice is not germane to this conversation. 

The god damn Germans got nothin' to do with it!

[crazy canuck]

I dont disagree with anything you said.  However, I am using the word despotism in the sense that there was no higher authority or constraining authority on the King - at least that is the way many Monarchs saw it which is why I referred to the disputes with the Church on that point - think of the dispute between the Pope and Phillip the for example.

This was in direct response to Vikings contention that being an outlaw somehow brought someone outside the rule of law when in fact it was a legal penalty imposed by the law.

To your point about the common law developing as the King and his closest advisors could not personally handle all the petitions directed to the Crown you are correct.  But canon law had a substantial head start and by the 12th century was in a sense fully formed whereas the common law was in its infancy.  I think you are correct to say that lawyers tried to stategically pled to get into the court which gave the best chance of success.  That still happens today.  But there is a reason there is an old saying that the equity depended on the size of the Chancellors foot and let us not forget that we didnt have Coke trying to make sense of the common lawuntil what, the 16th century?

[crazy canuck]

Incidentally, you have probably already read it but Law and Revolution is a great book dealing with what we are discussing. 

http://www.amazon.ca/Revolution-Formation-Western-Legal-Tradition/dp/0674517768

[Admiral Yi]

Does the landed in "landed immigrant" refer to their ownership of land or to their disembarkation from transport?

If it's the second, isn't it sort of redundant?

[Viking]

This was in direct response to Vikings contention that being an outlaw somehow brought someone outside the rule of law when in fact it was a legal penalty imposed by the law.

Not outside the rule of law, outside the protection of law. Big big difference there.

[CountDeMoney]

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

Sheriff Buford T. Justice is not germane to this conversation. 

The god damn Germans got nothin' to do with it!

Thank you for catching that while I was AFK.

[crazy canuck]

This was in direct response to Vikings contention that being an outlaw somehow brought someone outside the rule of law when in fact it was a legal penalty imposed by the law.

Not outside the rule of law, outside the protection of law. Big big difference there.

Either way it was a penatly imposed by the law not a way of avoiding the law which, as I said earlier, makes your link to modern day deportation problematic.  Deportation is very similar to the old fashion method of simply declaring someone an outlaw.

[Viking]

This was in direct response to Vikings contention that being an outlaw somehow brought someone outside the rule of law when in fact it was a legal penalty imposed by the law.

Not outside the rule of law, outside the protection of law. Big big difference there.

Either way it was a penatly imposed by the law not a way of avoiding the law which, as I said earlier, makes your link to modern day deportation problematic.  Deportation is very similar to the old fashion method of simply declaring someone an outlaw.

OK then, now can you deal with the issues raised as opposed to claiming not to understand your strawman.