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?
Quote from: Viking on April 10, 2012, 06:20:33 AM
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.
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.
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.
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?
An outlaw is whoever Sheriff Buford T. Justice says it is. And nobody makes Buford T. Justice looks like a possum's pecker.
Quote from: Viking on April 10, 2012, 09:35:37 AM
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.
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).
Quote from: Ideologue on April 10, 2012, 10:02:25 AM
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.
Quote from: Viking on April 10, 2012, 09:35:37 AM
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.
Quote2. 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).
Quote3. 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.
Quote4. 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.
Quote from: Viking on April 10, 2012, 10:16:28 AM
Quote from: Ideologue on April 10, 2012, 10:02:25 AM
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.
Quote from: Martinus on April 10, 2012, 10:35:53 AM
Quote from: Viking on April 10, 2012, 10:16:28 AM
Quote from: Ideologue on April 10, 2012, 10:02:25 AM
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?
Quote from: Viking on April 10, 2012, 10:16:28 AM
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.
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?
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.
To address Viking's question - it would appear that the concept lasted longer than I had thought. From Wikipedia:
QuoteIn 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.
...
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!
Quote from: crazy canuck on April 10, 2012, 11:23:17 AM
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).
Quote from: The Minsky Moment on April 10, 2012, 03:50:34 PM
Quote from: crazy canuck on April 10, 2012, 11:23:17 AM
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.
Quote from: crazy canuck on April 10, 2012, 04:08:55 PM
Quote from: The Minsky Moment on April 10, 2012, 03:50:34 PM
Quote from: crazy canuck on April 10, 2012, 11:23:17 AM
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)?
Quote from: Malthus on April 10, 2012, 04:19:16 PM
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:
Quoteas 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.
Quote from: CountDeMoney on April 10, 2012, 09:45:58 AM
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. :rolleyes:
Quote from: crazy canuck on April 10, 2012, 04:08:55 PM
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.
Quote from: Tonitrus on April 10, 2012, 05:25:57 PM
Quote from: CountDeMoney on April 10, 2012, 09:45:58 AM
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. :rolleyes:
The god damn Germans got nothin' to do with it!
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?
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
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?
Quote from: crazy canuck on April 10, 2012, 06:02:56 PM
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.
Quote from: Ed Anger on April 10, 2012, 05:51:55 PM
Quote from: Tonitrus on April 10, 2012, 05:25:57 PM
Quote from: CountDeMoney on April 10, 2012, 09:45:58 AM
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. :rolleyes:
The god damn Germans got nothin' to do with it!
Thank you for catching that while I was AFK. ;)
Quote from: Viking on April 10, 2012, 06:56:58 PM
Quote from: crazy canuck on April 10, 2012, 06:02:56 PM
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.
Quote from: crazy canuck on April 10, 2012, 07:05:26 PM
Quote from: Viking on April 10, 2012, 06:56:58 PM
Quote from: crazy canuck on April 10, 2012, 06:02:56 PM
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.
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.
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 (http://languish.org//www.amazon.com/Homo-Sacer-Sovereign-Meridian-Aesthetics/dp/0804732183). :hug:
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.
Quote from: crazy canuck on April 10, 2012, 06:06:21 PM
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.
QuoteHowever, 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.
QuoteBut 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.
Quote from: The Minsky Moment on April 11, 2012, 11:02:59 AM
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.
Quote
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.
Quote from: crazy canuck on April 11, 2012, 12:05:47 PM
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.
Quote from: The Minsky Moment on April 11, 2012, 04:13:42 PM
Quote from: crazy canuck on April 11, 2012, 12:05:47 PM
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.