ATTN Lawtalkers: The Concept of Outlaw

[crazy canuck]

Perhaps if you posed your issues in a less confusing manner it would be easier to pick out what it is you wish to know.

[Capetan Mihali]

I know you hate continental philosophy, Viking, which is why I will heartily recommend Giorgio Agamben's incredible work on the subject of the outlaw in antiquity and Auschwitz, Homo Sacer: Sovereign Power and Bare Life //www.amazon.com/Homo-Sacer-Sovereign-Meridian-Aesthetics/dp/0804732183.   

Of course, before reading it I would recommend excellent future Nazi jurisprudent Carl Schmitt's The Concept of the Political and excellent future Nazi casualty Walter Benjamin's "Critique of Violence" essay.

[The Minsky Moment]

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

Yeah - it's on my bookshelf along with the Bronze Age book Malthus cited in the other thread, but I haven't gotten to either yet. 

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. 

There was no higher secular authority but there was constraint in the form of custom.  Of course a King could just use force to override that but medieval monarchs had rather limited resources to draw upon.  And by the time their resources were augmented, there were already legal norms that the crown itself had put into place that had a regulating function.

The key point that I wanted to make is that monarchs expanded their legal jurisdiction during the period was not simply through the exercise of brute force or raw prerogative but by offering a superior product and convincing litigants to go to royal justice over the competition. 

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.

Roman law, as recast in canon law did have a huge influence on European legal systems, especially on the continent.  In England it's a little more ambiguous.  "Bracton" attempted to set forth a treatise on the common law that clearly is heavily influenced by canon law methods and thinking, but it isn't entirely clear how it related to the law as it actually existed, and was applied and practiced.  A lot about how common law courts worked in medieval England is hidden because of the black box of the jury system.

[crazy canuck]

The key point that I wanted to make is that monarchs expanded their legal jurisdiction during the period was not simply through the exercise of brute force or raw prerogative but by offering a superior product and convincing litigants to go to royal justice over the competition.

I agree that successful kings provided stability, in part, in the form of a reliable justice system.   However, the quality of justice varied from monarch to monarch (England is a good case study of this) and it is the extent to which the quality could vary depending on the monarch that we can see basis for the argument that the system was despotic at its root.  Kings that used the power of that despotism usually did so at their peril - as you point out - but a strong king could still do so successfully.

I would argue that, in England at least, it was not until the reign of Henry VII that the King's justice could be accessed throughout the realm when he instituted the office of Justices of the Peace who were answerable only to the Crown.  However we should remember that this is the same King who created the Star Chamber iirc to deal swiftly with any perceived enemies.  So even with him we see the carrot of good administration and the stick of despotism.

Roman law, as recast in canon law did have a huge influence on European legal systems, especially on the continent.  In England it's a little more ambiguous.  "Bracton" attempted to set forth a treatise on the common law that clearly is heavily influenced by canon law methods and thinking, but it isn't entirely clear how it related to the law as it actually existed, and was applied and practiced.  A lot about how common law courts worked in medieval England is hidden because of the black box of the jury system.

I agree, England is more of a special case but the canon law, while not having as large an impact on the creation of secular law, was still there for the Church to apply.  The Church ultimately lost the "jurisdictional" battle however.

[The Minsky Moment]

  However we should remember that this is the same King who created the Star Chamber iirc to deal swiftly with any perceived enemies. 

Star Chamber actually enjoyed quite a good reputation for efficiency, fairness, and flexiblity of remedies for quite some time.  Prior to the Stuarts it's proceedings were public and generally is was perceived to be less prone to corruption than some of the more localized common law courts. It's malign reputation derives primarily from the Stuart period where its procedures were abused to target dissenters and sessions were held in secret.

[crazy canuck]

  However we should remember that this is the same King who created the Star Chamber iirc to deal swiftly with any perceived enemies. 

Star Chamber actually enjoyed quite a good reputation for efficiency, fairness, and flexiblity of remedies for quite some time.  Prior to the Stuarts it's proceedings were public and generally is was perceived to be less prone to corruption than some of the more localized common law courts. It's malign reputation derives primarily from the Stuart period where its procedures were abused to target dissenters and sessions were held in secret.

Interesting.  I did not know that.